REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as of
January __, 1996 by and between ▇▇▇▇▇▇▇ Real Estate, Inc., a Maryland
corporation (the "Company"), and each of the parties executing a signature page
hereto (individually, a "Holder" and collectively, the "Holders").
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended (the "Securities Act"),
a registration statement on Form S-4 (Registration Number 33-64811 (the "Form S-
4")) relating to the shares of the Company's common stock, $.01 par value per
share ("Common Stock"), issuable in connection with the merger (the "Merger") of
▇▇▇▇▇▇ Properties Corporation with and into the Company; and
WHEREAS, the Holders are the beneficial owners of units ("Units") of
limited partnership interest in ▇▇▇▇▇▇ Operating Limited Partnership, a Delaware
limited partnership (the "Operating Partnership"); and
WHEREAS, in connection with the Merger, the Agreement of Limited
Partnership of the Operating Partnership will be amended and restated in its
entirety (as amended, the "Partnership Agreement") to provide, among other
things, that the Holders may present their Units for redemption to the Operating
Partnership, and any Units so presented may be redeemed for cash, or at the
option of the Company, for the number of shares ("Shares") of Common Stock
issuable pursuant to the Partnership Agreement; and
WHEREAS, in order to induce the Holders to enter into the Partnership
Agreement, the Company has agreed to provide for the benefit of the Holders the
registration rights set forth in this Agreement with respect to such Holders'
Shares, subject to the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual premises and
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions.
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As used in this Agreement, the following capitalized terms not elsewhere
defined shall have the following meanings:
"Prospectus" shall mean the prospectus included in a Registration
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Statement, as amended or supplemented, including any preliminary prospectus,
prospectus supplement and
post-effective amendment, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean the Shares issuable upon redemption of the
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Units, excluding (i) Shares for which a Registration Statement relating to the
sale thereof shall have become effective under the Securities Act, and which
shall have been disposed of under such Registration Statement, (ii) Shares sold
pursuant to Rule 144 under the Securities Act and (iii) Shares eligible for sale
pursuant to Rule 144(k) under the Securities Act. "Registrable Shares" shall
include Units eligible to be redeemed in exchange for Shares.
"Registration Statement" shall mean any registration statement of the
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Company (including, without limitation, the Form S-4), and any other entity
required to be a registrant with respect to such registration statement pursuant
to the requirements of the Securities Act, which statement covers the
Registrable Shares on an appropriate form, 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.
2. Registration.
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(a) Subject to the conditions set forth in this Agreement, the Company
shall include the Registrable Shares on the Form S-4, and shall use commercially
reasonable efforts to cause the Form S-4 to be declared effective by the SEC as
soon as reasonably practicable after the date of this Agreement. The Company
agrees to use reasonable efforts to keep the Form S-4 or any other Registration
Statement continuously effective until such time as all of the Units have been
redeemed for cash, or at the option of the Company, for the number of Shares
issuable pursuant to the Partnership Agreement.
(b) The Company shall notify each Holder of the effectiveness of any
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 each Holder may
reasonably request in order to facilitate the registration of the Registrable
Shares in the manner described in the Registration Statement.
(c) The Company shall prepare and file with the SEC from time to time such
amendments and supplements to any Registration Statement and Prospectus used in
connection therewith as may be necessary or desirable to keep such Registration
Statement effective and to comply with the provisions of the Securities Act with
respect to the Registrable Shares until such time as all of the Units have been
redeemed for cash, or at the option of the Company, for the number of Shares
issuable pursuant to the Partnership Agreement. Upon five (5) business days'
notice, the Company shall file any supplement or post-effective amendment to
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any 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 such
Registration Statement. The Company shall file any necessary listing
applications or amendments to the existing applications to cause the Shares
registered under any Registration Statement to be then listed or quoted on the
primary exchange or quotation system on which the shares of Common Stock are
then listed or quoted.
(d) The Company shall promptly notify each Holder of, and confirm in
writing, any request by the SEC for amendments or supplements to any
Registration Statement or the Prospectus related thereto or for additional
information. In addition, the Company shall promptly notify each Holder of, and
confirm in writing, the filing of any Registration Statement or any Prospectus,
amendment or supplement related thereto or any post-effective amendment to such
Registration Statement and the effectiveness of any post-effective amendment.
(e) At any time when a Prospectus relating to any Registration Statement is
required to be delivered under the Securities Act, the Company shall immediately
notify each Holder of the happening of any event as a result of which 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 therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. In such
event, the Company shall promptly prepare and furnish to each Holder a
reasonable number of copies of a supplement to or an amendment of such
Prospectus 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.
3. State Securities Laws. Subject to the conditions set forth in this
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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
commercially reasonable efforts to cause such filings to become effective;
provided, however, that the Company shall not be obligated to qualify as a
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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 commercially reasonable
efforts to keep such filings effective until the earlier of (a) such time as all
of the Units have been redeemed for cash, or at the option of the Company, for
the number of Shares issuable pursuant to the Partnership Agreement, (b) 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, or (c) the date on which the
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Registration Statement ceases to be effective with the SEC. 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. Except as provided herein, the Company shall bear all
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expenses incurred in connection with the registration of Registrable Shares
pursuant to this Agreement. The Holders 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 and for any legal, accounting and other expenses incurred by
them.
5. Indemnification by the Company. The Company agrees to indemnify each
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of the Holders and their respective officers, directors, employees, agents,
representatives and affiliates, and each person or entity, if any, that controls
a Holder within the meaning of the Securities Act, and each other person or
entity, if any, subject to liability because of his, her or its connection with
a Holder, and any underwriter and any person who controls such underwriter
within the meaning of the Securities Act (each an "Indemnitee") against any and
all losses, claims, damages, actions, liabilities, costs and expenses (including
without limitation reasonable fees, expenses and disbursements of attorneys and
other professionals documented in writing), joint or several, arising out of or
based upon any violation by the Company of any rule or regulation promulgated
under the Securities Act applicable to the Company and relating to any action or
inaction required of the Company in connection with any Registration Statement
or Prospectus, or upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement or any Prospectus, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, provided, that the Company shall not be
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liable to such Indemnitee or any person who participates as an underwriter in
the offering or sale of Registrable Shares or any other person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon (a) an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished to the Company for use
in connection with the Registration Statement or the Prospectus contained
therein by such Indemnitee, or (b) such Indemnitee's failure to send or give a
copy of the final prospectus furnished to it by the Company through no fault of
the Company at or prior to the time such action is required by the Securities
Act to the person claiming an untrue statement or alleged untrue statement or
omission or alleged omission if such statement or omission was corrected in such
final prospectus.
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6. Covenants of Holders. Each of the Holders hereby agrees (a) to
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cooperate with the Company and to furnish to the Company all such information
concerning its plan of distribution and ownership interests with respect to its
Registrable Shares in connection with the preparation of any Registration
Statement and any filings with any state securities commissions as the Company
may reasonably request, (b) to the extent required by the Securities Act, to
deliver or cause delivery of the Prospectus contained in any Registration
Statement to any purchaser of the shares covered by such Registration Statement
from the Holder, (c) to indemnify the Company, its officers, directors,
employees, agents, representatives and affiliates, and each person or entity, if
any, who controls the Company within the meaning of the Securities Act, and each
other person or entity, if any, subject to liability because of his, her or its
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either a Registration Statement or the Prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if and to the extent
that such statement or omission occurs from reliance upon and in conformity with
information regarding the Holder, its plan of distribution or its ownership
interests, which was furnished in writing to the Company by the Holder for use
therein unless such statement or omission was corrected in writing to the
Company not less than two (2) business days prior to the date of the final
prospectus (as supplemented or amended, as the case may be), or (ii) the failure
by the Holder to deliver or cause to be delivered the Prospectus contained in
any Registration Statement (as amended or supplemented, if applicable) furnished
by the Company to the Holder to any purchaser of the shares covered by such
Registration Statement from the Holder through no fault of the Company, and (d)
to not exercise the Redemption Right (as defined in the Partnership Agreement)
unless a Registration Statement with respect to the Registrable Shares has been
declared effective by the SEC and remains effective.
7. Suspension of Registration Requirement.
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(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement or the initiation of any proceedings for that
purpose. The Company shall use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Registration
Statement at the earliest possible moment.
(b) Notwithstanding anything to the contrary set forth in this Agreement,
the Company's obligation under this Agreement to use commercially reasonable
efforts to cause a Registration Statement and any filings with any state
securities commission to become effective and remain effective or to amend or
supplement a Registration Statement shall be suspended in the event and during
such period as the Company is proceeding with (i) an underwritten primary
offering by the Company if the Company is advised by the underwriters that the
sale of Registrable Shares under a Registration Statement would have a material
adverse effect on
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the primary offering, or (ii) pending negotiations relating to, or consummation
of, a transaction or the occurrence of an event that would require additional
disclosure of material information by the Company in a Registration Statement or
such filing, as to which the Company has a bona fide business purpose for
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preserving confidentiality or which renders the Company unable to comply with
SEC requirements as determined by its Board of Directors (such circumstances
being hereinafter referred to as a "Suspension Event") that would make it
impractical or unadvisable to cause a Registration Statement or such filings to
become effective, to amend or supplement such Registration Statement or to
disclose such Suspension Event, but such suspension shall continue only for so
long as such event or its effect is continuing but in no event will that
suspension exceed ninety (90) days. The Company shall notify each Holder of the
existence and, in the case of circumstances referred to in clause (i) of this
Section 7(b), the nature of any Suspension Event.
(c) Each Holder of Units whose Registrable Shares are covered by a
Registration Statement filed pursuant to Section 2 hereof agrees, if requested
by the Company in the case of a Company-initiated nonunderwritten offering or if
requested by the managing underwriter or underwriters in a Company-initiated
underwritten offering, not to effect any public sale or distribution of any of
the securities of the Company of any class included in such Registration
Statement, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act (except as part of such Company-initiated registration), during
the 15-day period prior to, and during the 60-day period beginning on, the date
of effectiveness of each Company-initiated offering made pursuant to such
Registration Statement, to the extent timely notified in writing by the Company
or the managing underwriters; provided, however, that such 60-day period shall
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be extended by the number of days from and including the date of the giving of
any notice pursuant to Section 2(d) or (e) hereof to and including the date when
each seller of Registrable Shares covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 2(e) hereof.
8. Black-Out Period. Following the effectiveness of a Registration
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Statement and the filings with any state securities commissions, the Holders
agree that they will not effect the redemption of their Units pursuant to the
Partnership Agreement at any time after they have received notice from the
Company to suspend such redemption as a result of the occurrence or existence of
any Suspension Event. The Holders may recommence effecting redemptions of their
Units pursuant to the Partnership Agreement following further notice to such
effect from the Company, which notice shall be given by the Company not later
than five (5) business days after the conclusion of any such Suspension Event.
9. Additional Shares. The Company, at its option, may register, under any
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Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of Common Stock
of the Company or any Common Stock of the Company owned by any other
shareholders of the Company.
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10. Contribution. If the indemnification provided for in Sections 5
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and 6 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Indemnitee, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Indemnitee, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
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party to contribute under this Section 10 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 5 or 6 hereof had been available
under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 10 were determined by pro rata
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allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 10, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of Shares exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
11. No Other Obligation to Register. Except as otherwise expressly
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provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
12. Rule 144 Covenants. With a view to making available the
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benefits of certain rules and regulations of the SEC, including without
limitation Rule 144, that may permit the sale of restricted securities to the
public without registration, the Company agrees to use its best efforts to:
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(a) Make available and keep public, at all times, current public
information regarding the Company as those terms are understood and defined in
Rule 144 under the Securities Act.
(b) File with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(c) So long as a Holder owns any Registrable Shares, furnish to the Holder
forthwith upon written request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the Securities
Act and the Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing a Holder to sell any such securities without registration.
13. Amendments and Waivers. The provisions of this Agreement may
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not be amended, modified, or supplemented or waived without the prior written
consent of the Company and the Holders holding in excess of fifty percent (50%)
of the aggregate number of all then outstanding Units.
14. Notices. Except as set forth below, all notices and other
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communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or 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(e) or
Section 6, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
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If to the Company: ▇▇▇▇▇▇▇ Real Estate, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: E. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, P.C.
▇▇▇▇▇▇▇, Procter & ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holders: As listed on the applicable Holder Signature Page
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Wildman, Harrold, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
In addition to the manner of notice permitted above, notices given pursuant to
Sections 2, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. Successors and Assigns. This Agreement shall be binding upon
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and inure to the benefit of the successors and assigns of the Company. This
Agreement may not be assigned by any Holder and any attempted assignment hereof
by any Holder will be void and of no effect and shall terminate all obligations
of the Company hereunder, provided that any Holder may assign its rights
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hereunder to any individual, partnership, corporation, trust or other legal
entity to whom such Holder has transferred any of its Units or Shares. If any
transferee of any Holder shall acquire Units in any manner, whether by operation
of law or otherwise, such Units shall be held subject to all of the terms of
this Agreement, and by taking and holding such Units such transferee shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
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16. Counterparts. This Agreement may be executed in any number of
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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.
17. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Maryland applicable to
contracts made and to be performed wholly within said State.
18. Severability. In the event that any one or more of the
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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.
19. Entire Agreement. This Agreement is intended by the parties as
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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 between the parties with respect to such
subject matter.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
▇▇▇▇▇▇▇ REAL ESTATE, INC.
By:
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Name:
Title:
11
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Holder:
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Print Name:
Address for Notice:
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________________________________________
________________________________________
________________________________________
________________________________________
Copy to:
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