EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of ________ __, 1997 by and among CAMDEN PROPERTY TRUST, a Texas
real estate investment trust ("Camden"), CAMDEN OPERATING, L.P. (formerly known
as Paragon Group L.P.), a Delaware limited partnership (the "Operating
Partnership"), and the parties set forth in EXHIBIT A attached hereto (the
"Investors").
WHEREAS, Paragon Group, Inc., a Maryland corporation ("Paragon") has
filed and caused to become effective a registration statement on Form S-3
(Registration No. 333-3598) registering under the Securities Act of 1933, as
amended (the "Act"), the resale of certain shares of common stock of Paragon
(the "Paragon Stock") that are currently outstanding or that may be issued upon
redemption of units of limited partnership interest of the Operating Partnership
(the "Units") pursuant to the Registration Rights and Lock-up Agreement dated as
of July 27, 1994 among Paragon, the Operating Partnership and the Investors (the
"Paragon Registration Rights Agreement"), the Stock Purchase Agreement dated as
of July 20, 1994 between Paragon and FWP, L.P. ("FWP") (such agreement
hereinafter referred to as the "FWP Stock Purchase Agreement"), and the Stock
Purchase Agreement dated as of July 20, 1994 between Paragon and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ("▇▇▇▇▇▇") (such agreement hereinafter referred to as the "▇▇▇▇▇▇ Stock
Purchase Agreement");
WHEREAS, Camden, Camden Subsidiary, Inc. ("Camden Sub") and Paragon
have entered into the Agreement and Plan of Merger dated December 16, 1996 (the
"Merger Agreement") pursuant to which Paragon will merge with and into Camden
Sub (the "Merger");
WHEREAS, upon consummation of the Merger and related transactions,
the Paragon Stock will be converted into shares of beneficial interest, par
value $.01 per share, of Camden ("Camden Shares") and the general partner of the
Operating Partnership will have the right to issue Camden Common Stock instead
of Paragon Stock upon the redemption of Units by the Investors under the Third
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership (the "Operating Partnership Agreement");
WHEREAS, in order to permit the Investors to freely offer and sell
at any time the Camden Shares that may be issued upon redemption of Units upon
or after the Merger and to permit FWP to freely offer and sell following ninety
(90) days after the Merger the Camden Shares that it receives in the Merger (all
such
Camden Shares being hereinafter referred to as "Registrable Shares"), Camden has
agreed to provide the Investors (including FWP) with the registration rights
provided herein (the "Registration Rights").
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, hereby agree as follows:
1. REGISTRATION RIGHTS.
The Investors shall be entitled to registration of
the Registrable Shares under the Act upon and subject to the terms and
conditions set forth herein (the "Registration Rights").
1(a) INITIAL REGISTRATIONS.
(i) CAMDEN SHARES ISSUED UPON REDEMPTION OF UNITS.
Within five (5) business days after the date hereof, Camden shall cause to be
filed with the Securities and Exchange Commission (the "SEC") a shelf
registration statement ("Registration Statement") and related prospectus
("Prospectus") that comply in all material respects with applicable SEC rules
providing for registration under the Act of the offer and sale by the Investors
of the total number of Registrable Shares that the Investors would own if they
were to redeem all Units owned by them, for which a sale by such Investors has
not been consummated. Camden shall (subject to Section 1(g) hereof) use its best
efforts to cause the Registration Statement to be declared effective by the SEC
as soon as practicable. Camden shall use its reasonable efforts to keep a
Registration Statement pursuant to this paragraph effective until the earlier of
(i) such time as Form S-3 (or similar successor form of registration statement)
is not available to Camden for registration of the Registrable Shares, or (ii)
the later of the date on which all of such Investors have (A) exchanged their
Units for Registrable Shares that are registered under the Securities Act upon
such redemption, (B) redeemed all of their Units and consummated the sale of any
Registrable Shares received upon such redemption, if they receive Registrable
Shares that are not registered under the Securities Act or (C) consummated the
sale of all of their Registrable Shares to a person or persons, or an entity or
entities, that is not an affiliate, or are not affiliates as the case may be, of
Camden.
(ii) CAMDEN SHARES ISSUED IN THE MERGER. Subject
to Section 1(g) hereof, Camden shall cause to be filed with the SEC, no later
than forty-five (45) days after the date hereof, and shall use its best efforts
to cause to be declared effective by the SEC ninety (90) days after the date
hereof, a shelf
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Registration Statement and related Prospectus that comply in all material
respects with applicable SEC rules providing for registration under the Act of
the offer and sale by FWP of all Registrable Shares received in the Merger.
Camden shall use its reasonable efforts to keep a Registration Statement
pursuant to this paragraph effective until the earlier of (i) such time as Form
S-3 (or similar successor form of registration statement) is not available to
Camden for registration of such Registrable Shares, or (ii) the date on which
FWP has consummated the sale of all of such Registrable Shares to a person or
persons, or an entity or entities, that is not an affiliate, or are not
affiliates (as the case may be), of Camden. The Registration Rights granted to
FWP pursuant to this Section 1(a)(ii) shall not be available to ▇▇▇▇▇▇ for
Camden Shares issued to him in the Merger. The parties intend that FWP and
▇▇▇▇▇▇ shall be entitled at any time after the date hereof to offer and sell
Camden Shares issued in the Merger pursuant to Rule 145 of the Rules and
Regulations under the Act.
1(b) REGISTRATION RIGHTS IF FORM S-3 IS NOT AVAILABLE. If Form
S-3 (or similar form) is not available (or does not continue to be available) to
Camden for registration of the Registrable Shares, then the Investors (including
FWP) shall have the following rights:
(i) DEMAND RIGHT. Upon the written request of one or
more Investors holding 32,000 (A) Units or (B) Registrable
Shares (or such lesser number of Units or Registrable Shares
as shall constitute all Units and Registrable Shares owned by
an Investor). Camden shall file a Registration Statement on an
appropriate form under the Act for all of the Registrable
Shares requested to be registered. Camden shall (subject to
Section 1(g) hereof) file any Registration Statement required
by this paragraph with the SEC within 30 days of receipt of
the requisite Investor request and shall use its reasonable
efforts to cause such Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. Camden
shall (subject to Section 1(g) hereof) use its reasonable
efforts to keep each such Registration Statement effective
until the earlier of (i) the date that is nine (9) months
after the date of effectiveness of the Registration Statement
(plus the number of days, if any, during which Investors were
not permitted to make offers or sales under the Registration
Statement by reason of Section 1(g)), or (ii) the later of (A)
the date on which such Investor has redeemed all of its Units,
if it receives Registrable Shares that are registered under
the Securities Act upon such redemption, (B) the date on which
such Investor has redeemed all of its Units and consummated
the sale of any Registrable Shares received
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upon such redemption, if it receives Registrable Shares that
are not registered under the Securities Act or (C) in
connection with Registrable Shares received in the Merger, the
date on which such Investor has consummated the sale of such
Registrable Shares to a person or entity that is not an
affiliate of Camden. An Investor shall be entitled to make or
join in a demand pursuant to this Section 1(b)(i) a maximum of
two (2) times; provided, that any such demand shall be for the
lesser of (i) Units or Camden Shares with a value of at least
$500,000 or (ii) all of the Units or Camden Shares owned by
such Investor; provided further that if no Registration
Statement is declared effective with respect to a demand which
an Investor has made or joined in, or if such Registration
Statement covers Units and Camden Shares with a value of at
least $2,000,000, that demand shall not be counted for
purposes of this limit.
(ii) PIGGYBACK RIGHTS. If Camden at any time proposes to
file a Registration Statement (other than in connection with
an exchange offer or a Registration Statement on Form S-4 or
S-8 or other form of Registration Statement that would not
permit registration of the Registrable Shares for sale to the
public) under the Act with respect to any of its Camden Shares
or any security convertible into or exchangeable or
exercisable for Camden Shares, whether or not for sale for its
own account, on a form and in a manner which would permit the
registration of Registrable Shares for sale to the public
under the Act, Camden shall give written notice of the
proposed registration to the holders of Registrable Shares not
later than the earlier to occur of (i) the fifth day following
receipt by Camden of notice of exercise of any demand
registration rights or (ii) 30 days prior to the filing
thereof. The holders of Registrable Shares shall have the
right to request that all or any part of the Registrable
Shares be included in the registration by giving written
notice to Camden within 15 days after the giving of the notice
by Camden; PROVIDED, HOWEVER, that (A) if the registration
relates to an underwritten primary offering on behalf of
Camden and the managing underwriters of the offering determine
in good faith that the aggregate amount of securities of
Camden which those holders and Camden propose to include in
the Registration Statement exceeds the maximum amount of
securities that could practicably be included therein, Camden
will include in the registration, first, the securities which
Camden proposes
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to sell, second, pro rata, any securities of any existing
holders of other piggyback registration rights and the
Registrable Shares of the Investors, and third, the securities
of any subsequent holders of other piggyback registration
rights, and (B) if the registration is an underwritten
secondary registration on behalf of any of the other security
holders of Camden and the managing underwriters determine in
good faith that the aggregate amount of securities which the
holders of Registrable Shares and such security holders
propose to include in the registration exceeds the maximum
amount of securities that could practicably be included
therein, Camden will include in the registration, first, the
securities to be sold for the account of any other holders
entitled to demand registration, second, the Registrable
Shares of the Investors and third, other securities to be sold
for the account of other holders electing to include (but not
being entitled to demand inclusion of) securities in the
registration. (It is understood, however, that the
underwriters shall have the right to terminate entirely the
participation therein of the holders of Registrable Shares if
the underwriters eliminate entirely the participation in the
registration of all the other holders electing to include (but
not be entitled to demand inclusion of) securities in the
registration.) If the registration is not an underwritten
registration, then all of the Registrable Shares requested to
be included in the registration shall be included. Registrable
Shares proposed to be registered and sold pursuant to an
underwritten offering for the account of the holders of
Registrable Shares shall be sold to prospective underwriters
selected or approved by Camden and on the terms and subject to
the conditions of one or more underwriting agreements
negotiated between Camden, the holders of Registrable Shares
and any other holders demanding registration and the
prospective underwriters. Camden may withdraw any Registration
Statement at any time before it becomes effective, or postpone
the offering of securities, without obligation or liability to
the holders of Registrable Shares. Registrable Shares need not
be included in any Registration Statement pursuant to this
provision if in the opinion of counsel to Camden reasonably
acceptable to the holders of Registrable Shares registration
under the Act is not required for public distribution of the
Registrable Shares.
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1(c) INABILITY TO DELIVER REGISTERED SHARES. Whenever an
Investor notifies Camden that the Investor intends to exercise a right of
exchange, Camden shall deliver to the Investor within five business days a
statement as to whether registered Camden Shares are immediately available and
if registered shares are not immediately available, an estimate of the time when
registered shares will be available. If Camden estimates that registered shares
will be available after 30 days, then the Investor will have the option to
exchange Units for unregistered shares, or to wait until registered shares
become available; PROVIDED, HOWEVER, Camden shall not be obligated to issue
unregistered shares unless there are available exemptions from registration
under the Act and from qualification under applicable state securities laws. The
determination as to whether an exemption is available in accordance with the
foregoing shall be made by Camden in its sole discretion. If Camden issues
unregistered shares, then for a period of three years holders of those
unregistered shares shall have the right to request inclusion of those shares in
any registration statement filed in accordance with this Agreement, to the same
extent as holders of Registrable Shares.
1(d) ADDITIONAL REGISTRATION PROCEDURES.
(i) Camden will provide to Investors a reasonable number
of copies of any final Prospectus and any amendments or
supplements thereto.
(ii) Camden will use its reasonable efforts to register
or qualify the Registrable Shares under such other securities
or blue sky laws of such jurisdictions as any Investor
reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable in connection
with the issuance to (if such shares are registered for
issuance) or the disposition of (if such shares are registered
for resale) the Registrable Shares owned by that Investor;
PROVIDED that Camden will not be required to (i) qualify
generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process in
any such jurisdiction, or (iv) qualify Registrable Shares in a
given jurisdiction where qualification would require Camden to
register as a broker or dealer in that jurisdiction.
(iii) Camden will cause all Registrable Shares to be
listed on each securities exchange on which similar securities
issued by Camden are listed and to be qualified for trading on
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each system on which similar securities issued by Camden are
from time to time qualified.
1(e) COOPERATION. Each Investor agrees to provide in a timely
manner information regarding the proposed distribution by that Investor of the
Registrable Shares and all other information reasonably requested by Camden in
connection with preparation of and for inclusion in the Registration Statement.
1(f) ADDITIONAL SHARES. The parties agree that any
Registration Statement may register shares that are not Registrable Shares but
are Camden Shares held by others, or to be issued to others, and subject to
registration rights; PROVIDED, HOWEVER, that the other shares to be registered
are to be or were received in exchange for Units.
1(g) SUSPENSION OF OFFERING. Notwithstanding the foregoing
provisions of this Agreement, Camden shall not be required to file a
Registration Statement or to keep the Registration Statement effective if the
negotiation or consummation of a transaction by Camden or its subsidiaries is
pending or an event has occurred, which negotiation, consummation or event would
require additional disclosure by Camden in the Registration Statement of
material information which Camden has a BONA FIDE business purpose for keeping
confidential and the nondisclosure of which in the Registration Statement might
cause the Registration Statement to fail to comply with applicable disclosure
requirements; PROVIDED, HOWEVER, that Camden may not delay, suspend or withdraw
the Registration Statement for such reason more than twice in any 12-month
period or for more than 60 days at any one time. Upon receipt of any notice from
Camden of the happening of any event during the period the Registration
Statement is effective which is of a type specified in the preceding sentence or
as a result of which the Registration Statement or related Prospectus contains
any 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 (in the case of the
Prospectus) not misleading, Investors agree that they will immediately
discontinue offers and sales of the Registrable Shares under the Registration
Statement until Investors receive copies of a supplemented or amended Prospectus
that corrects the misstatement(s) or omission(s) referred to above and receive
notice that any post-effective amendment has become effective. If so directed by
Camden, Investors will deliver to Camden any copies of the Prospectus covering
the Registrable Shares in their possession at the time of receipt of such
notice.
1(h) EXPENSES. Camden shall pay all expenses incident to the
performance by it of its obligations under this Agreement, including (i) all SEC
or stock exchange registration, listing and filing fees, (ii) all expenses
incurred in
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connection with the preparation, printing and distributing of any Registration
Statement and Prospectus, and (iii) fees and disbursements of counsel for Camden
and of the independent public accountants of Camden. Investors shall be
responsible for the payment of any and all other expenses incurred by them in
connection with the exchange of their Units and sale of their Registrable
Shares, including, without limitation, brokerage and sales commissions, fees and
disbursements of Investors' counsel, and any transfer taxes relating to the sale
or disposition of the Registrable Shares by Investors.
1(i) EFFECT ON EXISTING PARAGON AGREEMENTS. Except for the
registration rights granted under the Paragon Registration Rights Agreement, the
FWP Stock Purchase Agreement and the ▇▇▇▇▇▇ Stock Purchase Agreement, which
registration rights shall terminate upon the execution and delivery of this
Agreement, such agreements and the rights and obligations of the parties
thereunder shall continue in full force and effect.
2. Indemnification; Contribution.
2(a) INDEMNIFICATION BY CAMDEN. Camden agrees to indemnify and
hold harmless each Investor and each person, if any, who controls any Investor
within the meaning of Section 15 of the Act 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 amendment
thereto) pursuant to which the Registrable Shares were
registered under the 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 or
arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or
any amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, 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
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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 Camden, which shall not
be unreasonable withheld; and
(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 2(a)
does not apply to any Investor with respect to any loss, liability, claim,
damage or expense to the extent arising out of (x) any untrue statement or
omission made in reliance upon and in conformity with written information
furnished to Camden by that Investor expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) or (y) that Investor's failure to deliver an amended or
supplemental Prospectus provided by Camden if such loss, liability, claim,
damage or expense would not have arisen had such delivery occurred.
2(b) INDEMNIFICATION BY INVESTORS. Each Investor agrees to
indemnify and hold harmless Camden, and each of its directors and officers
(including each director and officer of Camden who signed the Registration
Statement), and each person, if any, who controls Camden within the meaning of
Section 15 of the Act, to the same extent as the indemnity contained in Section
2(a) hereof (except that any settlement described in Section 2(a)(ii) shall be
effected with the written consent of the Investor), but only insofar as such
loss, liability, claim, damage or expense arises out of or is based upon (x) any
untrue statement or omission, or alleged untrue statement or omission, 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 Camden by that Investor expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or (y) that Investor's failure to deliver an
amended or supplemental Prospectus provided by Camden if the loss, liability,
claim, damage or expense would not have arisen had such delivery occurred.
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2(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 to so notify the indemnifying party (i) shall not
relieve it from any liability which it may have under the indemnity agreement
provided in Section 2(a) or 2(b) above, 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 Section 2(a) or 2(b) above. If the indemnifying party
so elects within a reasonable time after receipt of notice, the indemnifying
party may assume the defense of the action or proceeding at the 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 upon
advice of counsel that a conflict of interest exists where it is advisable for
the indemnified party to 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, provided, however, it is understood that the indemnifying party
shall not be liable for the fees, charges and disbursements of more than one
separate firm. If the indemnifying party is not entitled to assume the defense
of the action or proceeding as a result of the proviso to 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
the action or proceeding as efficiently as possible. If the indemnifying party
is not so entitled to assume the defense of the action or does not assume the
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 that event, however, the indemnifying
party will not be liable for any settlement effected without the written consent
of the indemnifying party. If an indemnifying party is entitled to assume, and
assumes, the defense of an 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 that
action or proceeding. Unless and until a final judgment that an indemnified
party is not entitled to the costs of defense under the foregoing provision, the
indemnifying party shall reimburse promptly as they are incurred, the
indemnified party's costs of defense.
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2(d) CONTRIBUTION. To provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 2 is for any reason held to be unenforceable although applicable in
accordance with its terms, Camden and each Investor shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by the indemnity agreement incurred by Camden and each Investor, in
such proportion as is appropriate to reflect the relative fault of Camden on the
one hand and of the Investor 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
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 the action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 2(d) 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 2(d), no Investor shall be
required to contribute any amount in excess of the lesser of (i) the amount by
which the total price at which the Registrable Shares of that Investor were sold
to the public or (ii) the amount of any damages which that Investor would
otherwise have been required to pay by reason of the untrue statement or
omission.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 2(d), each person, if any, who
controls an Investor within the meaning of Section 15 of the Act shall have the
same rights to contribution as that Investor, and each director of Camden, each
officer of Camden who signed the Registration Statement and each person, if any,
who controls Camden within the meaning of Section 15 of the Act shall have the
same rights to contribution as Camden.
3. MISCELLANEOUS.
3(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified, supplemented or waived without the written consent
of Camden and Investors holding at least two-thirds (2/3) of the then
outstanding unregistered Registrable Shares and/or Units.
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3(b) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail (return receipt requested), telex, telecopier, or any courier
guaranteeing overnight delivery, to each Investor at the address indicated on
the records of Camden and the Operating Partnership and to Camden at the address
indicated below:
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All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three (3)
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; or
at the time delivered, if delivered by an air courier guaranteeing overnight
delivery.
3(c) ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and
the rights granted hereunder may not be assigned by any Investor without the
written consent of Camden; PROVIDED, HOWEVER, that the rights granted hereunder
may be assigned by any Investor in connection with a transfer of Registrable
Shares or Units (i) to any affiliate of such Investor, (ii) to any stockholder,
partner, member or other owner of such Investor, (iii) to any other Investor and
(iv) to any other person to which Units may be transferred without the consent
of the general partner pursuant to the Operating Partnership Agreement. Any
permitted asignee of an Investor hereunder shall be entitled to all of the
benefits of this Agreement.
3(d) GOVERNING LAW. The laws of the State of Texas shall
govern all questions concerning the relative rights of Camden and its
shareholders and questions concerning the construction, validity and
interpretation of this Agreement, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Texas or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Texas.
3(e) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
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3(f) If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any current or future law, and if the rights or
obligations of the parties under this Agreement would not be materially and
adversely affected thereby, such provision shall be fully separable, and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part thereof, the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance therefrom. In lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement, a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible, and the parties hereto
request the court or any arbitrator to whom disputes relating to this Agreement
are submitted to reform the otherwise illegal, invalid or unenforceable
provision in accordance with this Section 3(f).
3(g) DESCRIPTIVE HEADINGS. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
3(h) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
3(i) COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first written above.
CAMDEN PROPERTY TRUST,
a Texas Real Estate Investment Trust
By: _____________________________
Name: ___________________________
Title: __________________________
-13-
CAMDEN OPERATING, L.P.
By: Camden GP Holdings, Inc.,
General Partner
By: _____________________________
Name: ___________________________
Title: __________________________
-14-
EXHIBIT D
to the Agreement
and Plan of Merger
EXHIBIT A
INVESTORS
Number of
Registrable
Number of Registrable Shares Based on
Shares Based on Units Camden Shares
Owned Owned
Investor After the Merger After the Merger
-------- ---------------- ----------------
PGI Associates, L.P. 1,413,016 0
FWP, L.P. 571,278 380,800
Gateway Mall Associates I, L.P. 240,941 0
Fulcor Investment Co. 21,899 0
▇▇▇▇▇ ▇▇▇▇▇▇▇ 743 0
▇▇▇▇▇▇ Financial Co. 26,955 0
WRC Holdings, Inc. 21,978 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 22,972 0
▇▇▇▇▇ ▇. ▇▇▇▇▇ 8,131 0
▇▇▇ ▇. ▇▇▇▇▇ 22,972 0
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,276 0
*Assumes .64 Exchange Ratio.