1
EXHIBIT 4.05
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into
effective as of this 2nd day of March, 1998 by and among Crescent Real Estate
Equities Company, a Texas real estate investment trust (the "Company"), Crescent
Real Estate Equities Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), Senterra Corporation, a Texas corporation (the
"Corporation"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III ("▇▇▇▇▇▇▇") and ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Tofsky"
and, together with the Corporation and ▇▇▇▇▇▇▇, the "Senterra Designees").
WHEREAS, the Senterra Real Estate Group, L.L.C. (formerly known as Senterra
Development, L.L.C.), a Texas limited liability company ("Senterra"), obtained
limited partnership interests (the "Partnership Interests") and Partnership
Units ("Units") in the Operating Partnership, all of which were conveyed
pursuant to one or more exemptions from registration under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to an offering by the
Operating Partnership of such Partnership Interests and Units to Senterra;
WHEREAS, Senterra subsequently assigned the Partnership Interests and
Partnership Units to the Senterra Designees;
WHEREAS, pursuant to the Operating Partnership Agreement (as defined
below), the Senterra Designees have obtained certain rights (the "Exchange
Rights") to exchange their Partnership Interests and Units, in whole or in part,
for an aggregate number of common shares of beneficial interest in the Company,
$0.01 par value per share (the "Common Shares"), equal to two times the
aggregate number of Units owned by the Senterra Designees, on the terms and
conditions specified in the Operating Partnership Agreement, and pursuant to
which the Company shall have the option to deliver cash in lieu of Common
Shares;
WHEREAS, in consideration of the purchase of the Partnership Interests and
Units by Senterra, the Company has agreed to provide the Senterra Designees and
certain of their assignees, as described herein, with the registration rights
set forth in Section 2 hereof;
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as set forth herein.
1. Certain Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings.
"▇▇▇▇▇▇▇" shall have the meaning set forth in the recitals hereto.
"Common Shares" shall have the meaning set forth above in the recitals
hereto.
"Company" shall have the meaning set forth above in the recitals hereto.
2
"Corporation" shall have the meaning set forth in the recitals hereto.
"Exchange Rights" shall have the meaning set forth above in the recitals
hereto.
"Holders" shall mean (i) the Senterra Designees, (ii) any Person who
succeeds to the rights of the Corporation by instrument of merger,
consolidation, or similar instrument, and who executes this Agreement in
connection therewith, (iii) any Person who is a beneficial owner of the equity
securities of the Corporation as of the date first above written, to whom the
Corporation assigns its rights hereunder, and who executes this Agreement in
connection with such assignment, (iv) family members of ▇▇▇▇▇▇▇, Tofsky or any
beneficial owner specified in clause (iii) (which, for purposes hereof, shall
mean any spouse, child, or grandchild, or a trust for the benefit of any one or
more of the foregoing, and, in the case of a trust, the grantor or beneficial
owner(s) thereof) to whom ▇▇▇▇▇▇▇, Tofsky or such beneficial owner assigns the
rights hereunder and who execute this Agreement in connection with such
assignment, and (v) any Person who succeeds to the rights of any Holder by will
or intestate succession and who executes this Agreement in connection therewith.
No Person shall be considered a Holder for purposes hereof unless and until such
Person shall have executed this Agreement, as the same may be amended in
accordance with the provisions hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Operating Partnership" shall have the meaning set forth above in the
recitals hereto and also shall include the Operating Partnership's successors
and subsidiaries.
"Operating Partnership Agreement" shall mean the Second Amended and
Restated Agreement of Limited Partnership of the Operating Partnership, as
amended through and following the date hereof, including the amendment thereto
that, among other matters, admits the Senterra Designees to the Operating
Partnership as Limited Partners and as holders of Units.
"Partnership Interests" shall have the meaning set forth above in the
recitals hereto.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean any Common Shares issued to the Holders
pursuant to the exercise of Exchange Rights by any of such Holders in exchange
for the Units received by the Holders on the date hereof but shall not include
any Common Shares issued to the Holders in exchange for the Units and
subsequently transferred to any Person other than (i) another Holder or (ii) a
Person who becomes a Holder pursuant hereto within 20 days following any such
transfer.
-2-
3
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 2(c) hereof, and (v) the
fees and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any "cold comfort" letters
required by or incident to such performance and compliance. Registration
Expenses shall specifically exclude those items specified in Section 4 as
expenses to be paid by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act which
covers any of the Registrable Shares, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Senterra Designees" shall have the meaning set forth above in the recitals
hereto.
"Tofsky" shall have the meaning set forth above in the recitals hereto.
"Units" shall have the meaning set forth above in the recitals hereto.
2. Registration of Shares. The provisions relating to a Holder's and the
Company's rights and obligations with regard to registration of Common Shares
are set forth in this Section 2.
(a) Within five (5) business days after the date defined as the Closing
Date in that certain Asset Contribution Agreement among Senterra, the Senterra
Designees and the Partnership, the Company shall file, and shall use its best
efforts to cause to become effective as soon thereafter as practicable, a
Registration Statement for all Registrable Shares. The Company shall use its
best efforts to maintain the effectiveness of such Registration Statement until
there are no longer any Registrable Shares held by any Holder.
In addition, notwithstanding the foregoing, the Company shall not be
obligated, but shall have the right, to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2(a):
(i) in any particular jurisdiction in which either the Company or the
Operating Partnership would be required to execute a general consent to
service of process in effecting such registration, qualification or
compliance,
-3-
4
unless the Company or the Operating Partnership is already subject to
service in such jurisdiction, and except as may be required by the
Securities Act; or
(ii) if such Registration Statement cannot be filed on Form S-3 or a
successor form substantially similar and with filing requirements similar
to such Form.
(b) Notice of Effectiveness. The Company shall notify each Holder of filing
status of the Registration Statement, whether or not the SEC will review the
Registration Statement and the effectiveness of the Registration Statement and
shall furnish to each Holder such number of copies of the Registration Statement
(including any amendments, supplements and exhibits), the Prospectus contained
therein (including each preliminary prospectus and all related amendments and
supplements), and any documents incorporated by reference in the Registration
Statement or such other documents as the Holder may reasonably request in order
to facilitate its sale of the Registrable Shares in the manner described in the
Registration Statement.
(c) Amendments and Supplements to Registration Statement; Listing. The
Company shall prepare and file with the SEC from time to time such amendments
and supplements to the Registration Statement and Prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all the Registrable Shares until such time as all of the
Registrable Shares have been disposed of in accordance with the intended methods
of disposition by the Holders as set forth in the Registration Statement. Upon
five business days' notice, the Company shall file any supplement or
post-effective amendment to the Registration Statement with respect to the plan
of distribution or such Holder's ownership interests in Registrable Shares that
is reasonably necessary to permit the sale of the Holder's Registrable Shares
pursuant to the Registration Statement. The Company shall file any necessary
listing applications or amendments to the existing applications to cause the
Common Shares registered under any Registration Statement to be then listed or
quoted on the primary exchange or quotation system on which the Common Shares
are then listed or quoted.
(d) SEC Requests. The Company shall notify each Holder of any request by
the SEC for amendments or supplements to the Registration Statement or the
Prospectus related thereto or for additional information. In addition, the
Company shall notify each Holder of the filing of the Registration Statement or
any Prospectus, amendment or supplement related thereto or any post-effective
amendment to the Registration Statement and the effectiveness of any
post-effective amendment.
(e) Prospectus Delivery. At any time when a Prospectus relating to the
Registration Statement is required to be delivered under the Securities Act, the
Company shall immediately notify each Holder ("an Event Notice") of the
happening of any event as a result of which (i) the Prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
-4-
5
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (ii) an amendment
to the Registration Statement is required. In such event, the Company shall
promptly (and, in any event in which an amendment to the Prospectus is not
required, not later than 15 business days after such Event Notice is given to
each Holder) prepare and furnish to each Holder a reasonable number of copies of
a supplement to such Prospectus (or, after declaration of effectiveness by the
SEC, of any amendment to the Prospectus required to be filed as an amendment to
the Registration Statement) as may be necessary so that, as thereafter delivered
to the purchasers of Registrable Shares, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is a part
to reflect such amendment or supplement and use its best efforts promptly to
obtain an effectiveness order for such amendment from the SEC. From and after
the date of any Event Notice, no Holder shall offer or sell any Registrable
Shares until such time as the Company delivers any such Prospectus supplement or
amendment to the Holder.
3. State Securities Laws.
Subject to the conditions set forth in this Agreement, the Company shall,
in connection with the filing of any Registration Statement hereunder, file such
documents as may be necessary to register or qualify the Registrable Shares
under the securities or "Blue Sky" laws of such states as any Holder may
reasonably request, and the Company shall use its best efforts to cause such
filings to become effective; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws of
any such state in which it is not then qualified or to file any general consent
to service of process in any such state. Once effective, the Company shall use
its best efforts to keep such filings effective until the earliest of (i) such
time as the Registrable Shares have been sold, or (ii) in the case of a
particular state, a Holder has notified the Company that it no longer requires
an effective filing in such state in accordance with its original request for
filing. The Company shall promptly notify each Holder of, and confirm in
writing, the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Shares for sale under the
securities or "Blue Sky" laws of any jurisdiction or the initiation or threat of
any proceeding for such purpose.
4. Expenses.
The Company shall bear all Registration Expenses incurred in connection
with the registration of the Registrable Shares pursuant to this Agreement. Each
Holder shall be responsible for any brokerage or underwriting commissions and
taxes of any kind (including, without limitation, transfer taxes) with respect
to any disposition, sale or transfer of Registrable Shares sold by such Holder
and for any legal, accounting and other fees and expenses incurred by such
Holder in connection therewith.
5. Cooperation.
Each Holder hereby agrees (i) to cooperate with the Company and to furnish
to the Company in a timely manner all information that the Company may
reasonably request in
-5-
6
connection with the preparation of the Registration Statement and any filings
with any state securities commissions, including information concerning its plan
of distribution and ownership interests with respect to its Registrable Shares
or any other securities of the Company or any of the Company's affiliates and
(ii) to deliver or cause delivery of the Prospectus contained in the
Registration Statement to any purchaser of the shares covered by the
Registration Statement from the Holder except to the extent provided to the
contrary in Section 2(e) above.
6. Suspension of Registration Requirement.
The Company shall promptly notify each Holder of the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. Each Holder agrees not to effect
any sales from the date of any such notice until the Company obtains the
withdrawal of any such order suspending the effectiveness of the Registration
Statement. The Company shall use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement and shall
promptly notify each Holder of any such withdrawal.
7. Additional Shares.
The Company, at its option, may register, under any registration statement
and any filings with any state securities commissions filed pursuant to this
Agreement, any number of shares of unissued Common Shares or other securities of
the Company or any Common Shares or other securities of the Company owned by any
other shareholder or shareholders of the Company.
8. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Holder and each person, if any, who controls any Holder
within the meaning of Section 15 of the Securities Act of 1933 as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
or any Prospectus (or any amendment thereto) pursuant to which the
Registrable Shares were registered or offered under the Securities Act,
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
-6-
7
(iii) against any and all expense whatsoever, as incurred (including
reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, in each case whether or not a party, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section
8(a) shall not apply to any Holder with respect to any loss, liability, claim,
damage or expense which arises, in whole or in part, out of (x) any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by such
Holder expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) or (y) such
Holder's failure to deliver an amended or supplemental Prospectus if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
(b) Indemnification by Holders. Each Holder severally agrees to indemnify
and hold harmless the Company and the other selling Holders, and each of their
respective directors and officers (including each director and officer of the
Company who signed the Registration Statement), and each person, if any, who
controls the Company or the other selling Holders within the meaning of Section
15 of the Securities Act, to the same extent as the indemnity contained in
Section (a) hereof (except that any settlement described in Section 8(a)(ii)
shall be effected with the written consent of such Holder), for any such loss,
claim, damage or expense that arises out of or is based, in whole or in part,
upon (x) any untrue statements or omissions made in the Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Holder for use in such Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement thereto)
or (y) such Holder's failure to deliver an amended or supplemental Prospectus if
such loss, liability, claim, damage or expense would not have arisen had such
delivery occurred.
(c) Conduct of Indemnification Proceedings. The indemnified party shall
give reasonably prompt notice to the indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure so to notify the indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in paragraphs (a) or (b) of this Section 8, unless and to the extent it did not
otherwise learn of such action and the lack of notice by the indemnified party
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) shall not, in any event, relieve the indemnifying party from
any obligations to the indemnified party other than the indemnification
obligation provided under paragraphs (a) or (b) of this Section 8. If the
indemnifying party so elects within a reasonable time after receipt of such
notice, the indemnifying party may assume the defense of such action or
proceeding at such
-7-
8
indemnifying party's own expense with counsel chosen by the
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that, if the indemnified party
reasonably determines that a conflict of interest exists and that it is
necessary that the indemnified party be represented by separate counsel or that,
upon advice of counsel, there may be legal defenses available to it which are
different from or in addition to those available to the indemnifying party, then
the indemnifying party shall not be entitled to assume such defense, and the
indemnified party shall be entitled to separate counsel at the indemnifying
party's expense. If the indemnifying party is not entitled to assume the defense
of such action or proceeding as a result of the provisions of the preceding
sentence, the indemnifying party's counsel shall be entitled to conduct the
indemnifying party's defense and counsel for the indemnified party shall be
entitled to conduct the defense of the indemnified party, it being understood
that both such counsel will cooperate with each other to conduct the defense of
such action or proceeding as efficiently as possible. If the indemnifying party
is not so entitled to assume the defense of such action or does not assume such
defense, after having received the notice referred to in the first sentence of
this paragraph, the indemnifying party will pay the reasonable fees and expenses
of counsel for the indemnified party. In such event, however, the indemnifying
party will not be liable for any settlement effected without the written consent
of the indemnifying party, with such consent not to be unreasonably withheld. If
an indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
party incurred thereafter in connection with such action or proceeding, subject
to the proviso set forth in the second sentence of this paragraph (c).
9. Contribution.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 8 is for any reason held
to be unenforceable although applicable in accordance with its terms, the
Company and each Holder shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company and each such Holder, in such proportion as is
appropriate to reflect the relative fault of and benefits to the Company on the
one hand and such Holder on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits to the indemnifying party and indemnified party shall be determined by
reference to, among other things, the total proceeds received by the
indemnifying party and indemnified party in connection with the offering to
which such losses, claims, damages, liabilities or expenses relate. The relative
fault of the indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to, information
supplied by, the indemnifying party or the indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action.
-8-
9
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 9, each Holder shall be required
to contribute the amount of any damages which such Holder is required to pay by
reason of such untrue statement or omission.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person, if
any, who controls a Holder within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each director
of the Company, each officer of the Company who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution
as the Company.
10. No Obligation to Issue Common Shares to Holders; No Other Obligation to
Register.
(a) No Obligation to Issue Common Shares. The Holders hereby acknowledge
that, upon any exercise of their Exchange Rights, the Company has the option
pursuant to the Operating Partnership Agreement, in its sole discretion, to
deliver either cash, in the amount specified in the Operating Partnership
Agreement under such circumstances, or Common Shares in exchange for the Units
submitted for exchange.
(b) No Other Obligation to Register Shares. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to a Holder to
register the Registrable Shares under the Securities Act.
11. Holder Representations, Warranties and Agreements.
Each Holder, jointly and not severally, and solely on behalf of itself,
represents and warrants to, and agrees with, the Company, that:
(a) Such Holder, if not a natural person, is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Such Holder has all requisite power and authority to execute,
deliver and perform this Agreement. All necessary proceedings of such Holder,
if not a natural person, have been duly taken to authorize the execution,
delivery, and performance of this Agreement by such Holder. This Agreement has
been duly executed and delivered by such Holder, and is the legal, valid, and
binding obligation of such Holder, and is enforceable as to such Holder in
accordance with its terms. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state, local or other governmental authority or any court or other tribunal is
required by such Holder for the execution, delivery or performance of this
Agreement (except filings under the Securities Act which will be made and such
consents consisting only of consents under Blue Sky or state securities laws
which will be obtained) by such Holder. No consent of any party to any
contract, agreement, instrument, lease, license, arrangement or understanding
to which such Holder is a party, or to which any
-9-
10
of such Holder's properties or assets are subject, is required for the
execution, delivery and performance of this Agreement which has not been
obtained, and the execution, delivery and performance of this Agreement will not
violate, result in a breach of, conflict with or (with or without giving of
notice or the passage of time or both) entitle any party to terminate or call a
default under any such contract, agreement, instrument, lease, license,
arrangement or understanding, or, if such Holder is not a natural person,
violate or result in a breach of, or conflict with, any law, rule, regulation,
order, judgment, or decree binding on such Holder or to which any of such
Holder's operations, business, properties, or assets are subject, which, in any
of such events, would prohibit, impair, or restrict the ability of such Holder
to execute and deliver this Agreement, perform in accordance with the terms
hereof or consummate the transactions contemplated hereby, or would adversely
affect the rights or benefits, or both, hereunder of any other party hereto.
(b) Neither such Holder nor any of such Holder's affiliates (as defined in
the regulations under the Securities Act), will take, directly or indirectly,
during the term of this Agreement, any action designed to stabilize (except as
may be permitted by applicable law) or manipulate the price of any security of
the Company.
(c) Such Holder shall promptly furnish to the Company any and all
information as may be required by, or as may be necessary or advisable to comply
with the provisions of, the Securities Act, the Exchange Act, and the rules and
regulation of the SEC thereunder in connection with the preparation and filing
of any Registration Statement pursuant hereto, or any amendment or supplement
thereto, or any Preliminary Prospectus or Prospectus included therein. All
information to be furnished to the Company by or on behalf of such Holder
expressly for use in connection with the preparation of any Preliminary
Prospectus, the Prospectus, the Registration Statement, or any amendment or
supplement thereto, will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
12. Underwritten Registration.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (i) executes and delivers the
underwriting agreement or similar documents relating thereto pursuant to which
such Holder shall agree to sell, upon the reasonable terms and subject to the
reasonable conditions therein set forth, such Holder's Registrable Securities on
the basis provided therein, and (ii) completes and executes all usual and
customary questionnaires, powers of attorney, indemnities, custodial, or escrow
agreements and such other documents as may be reasonably necessary, advisable or
required pursuant to the terms thereof or as may be from time to time reasonably
requested by the underwriter or underwriters named therein, the Company, or
their respective legal counsel, in connection therewith.
In the event of any conflict between the indemnification and contribution
terms as herein set forth and as set forth in any underwriting agreement entered
pursuant hereto, the underwriting agreement shall control.
-10-
11
13. Survival of Representations and Agreements.
All representations, warranties, covenants, and agreements contained in
this Agreement shall be deemed to be representations, warranties, covenants, and
agreements at the effective date of each Registration Statement contemplated by
this Agreement, and such representations, warranties, covenants, and agreements,
including the indemnity and contribution agreements contained in Sections 8 and
9 hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Holder or any Person
which is entitled to be indemnified under Section 8 hereof, and shall survive
termination of this Agreement.
14. Amendments and Waivers.
The provisions of this Agreement may not be amended, modified,
supplemented, or waived without the prior written consent of the Company and the
Holders of Registrable Shares.
15. Notices.
Except as set forth below, all notices and other communications provided
for or permitted hereunder shall be in writing and shall be deemed to have been
duly given (i) upon receipt by the intended recipient if delivered personally or
sent by telex or telecopier, (ii) if mailed, three days after the mailing
thereof by registered or certified mail (return receipt requested), postage
prepaid, or (iii) upon receipt if transmitted by courier or overnight delivery
service to the respective parties at the following addresses (or at such other
address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof),
and further provided that in case of directions to amend the Registration
Statement pursuant to Section 2(c), a Holder must confirm such notice in writing
by overnight express delivery with confirmation of receipt:
If to the Company: Crescent Real Estate Equities Company
c/o Crescent Real Estate Equities Limited
Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO and President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-11-
12
with a copy to: Crescent Real Estate Equities Company
c/o Crescent Real Estate Equities Limited
Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President-Law
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Shaw, Pittman, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇. ▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Senterra Corporation, Senterra Real Estate Group, L.L.C.
▇▇▇▇▇▇▇ or Tofsky: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Liddell, Sapp, Zivley, Hill & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
In addition to the manner of notice permitted above, notices given
pursuant to Sections 2 and 6 hereof may be effected telephonically and confirmed
in writing thereafter in the manner described above.
16. Successors and Assigns.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto. This Agreement may not be assigned by any Holder, except for an
assignment (i) by the Corporation to any Person who succeeds to the rights of
the Corporation by instrument of merger, consolidation, or similar instrument,
and who executes this Agreement in connection therewith, (ii) by the Corporation
to any Person who is a beneficial owner of the equity securities of the
Corporation as of the date first above written, and who executes this Agreement
in connection with such assignment, (iii) by ▇▇▇▇▇▇▇, Tofsky or any beneficial
owner specified in clause (ii) to one or more family members (which, for
purposes hereof, shall mean any spouse, child, or grandchild, or a trust for the
benefit of any one or more of the foregoing, and, in the
-12-
13
case of a trust, the grantor or beneficial owner(s) thereof) of such Senterra
Designee or beneficial owner who execute this Agreement in connection with such
assignment, (iv) by any Holder to any Person who succeeds to the rights of any
Holder by gift, will or intestate succession and who executes this Agreement in
connection therewith, and (v) by any Holder to any other Holder. Any attempted
assignment hereof by any Holder to any Person other than pursuant to this
Section 16 will be void and of no effect, and the Company shall have no
obligations whatsoever with regard to such purported assignee. No Person shall
be considered a Holder for purposes hereof unless and until such Person shall
have executed this Agreement, as the same may be amended in accordance with the
provisions hereof.
17. Counterparts.
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
18. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas applicable to contracts made and to be performed
wholly within said State.
19. No Shareholder Liability.
No shareholder or other equity owner of the Company assumes any
personal liability for the obligations listed herein or for the Company's
performance of such obligations.
20. Severability.
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
21. Entire Agreement.
This Agreement is intended by the parties as a final expression of
their agreement and intended to be the complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
such subject matter. This Agreement supersedes all prior agreements and
understandings (except the Operating Partnership Agreement, which is
incorporated by reference herein and hereby made a part of this Agreement)
between the parties with respect to such subject matter.
-13-
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CRESCENT REAL ESTATE EQUITIES COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: Senior Vice President Law
---------------------------------
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: CRESCENT REAL ESTATE EQUITIES,
LTD., its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: Senior Vice President Law
---------------------------------
SENTERRA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
-14-