FORM OF REGISTRATION RIGHTS AGREEMENT BY AND AMONG INVESCO AGENCY SECURITIES INC. AND CERTAIN PERSONS LISTED ON SCHEDULE 1 HERETO dated as of
Exhibit 10.2
FORM OF REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
AND
CERTAIN PERSONS LISTED ON SCHEDULE 1 HERETO
dated as of
, 2008
TABLE OF CONTENTS
| Page | ||||||||||||
| SECTION 1. | DEFINITIONS |
1 | ||||||||||
| SECTION 2. | REGISTRATION RIGHTS |
3 | ||||||||||
| SECTION 3. | REGISTRATION PROCEDURES |
6 | ||||||||||
| SECTION 4. | INDEMNIFICATION AND CONTRIBUTION |
10 | ||||||||||
| SECTION 5. | UNDERWRITING AND DISTRIBUTION |
12 | ||||||||||
| SECTION 6. | MISCELLANEOUS |
12 | ||||||||||
-i-
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is entered into as of , 2008, by and among
Invesco Agency Securities Inc., a Maryland corporation (the “Company”), and entities listed
on Schedule 1 hereto (collectively, the “Invesco Purchaser”).
WHEREAS, immediately prior to the completion of and in connection with the Company’s proposed
initial public offering (the “IPO”), the Company has agreed to issue in a private placement
to the Invesco Purchaser an aggregate of shares of common stock of the Company, par
value $0.01 per share (the “Common Stock”), and units representing limited
partnership interests (“OP Units”) in IAS Operating Partnership, LP, exchangeable under
certain circumstances, into shares of Common Stock, on a one-for-one basis, for an aggregate
purchase price of $ (the “Private Placement Securities”); and
WHEREAS, the Invesco Purchaser and the Company desire to enter into this Agreement to provide
the Invesco Purchaser and its permitted transferees with certain registration rights described
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. The following capitalized terms used herein have the following meanings:
“Affiliate” of any Person means any other Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with, such
Person. The term “control” (including the terms “controlled by” and “under
common control with”) as used with respect to any Person means the possession, directly or
indirectly through one or more intermediaries, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Agreement” means this Registration Rights Agreement, as amended, restated,
supplemented, or otherwise modified from time to time.
“Board” means the board of directors of the Company.
“Business Day” means any day, other than a Saturday or Sunday or a day on which
commercial banks in Atlanta, Georgia are directed or permitted to be closed.
“Commission” means the Securities and Exchange Commission, or any other federal agency
then administering the Securities Act or the Exchange Act.
“Common Stock” is defined in the recitals to this Agreement.
“Company” is defined in the preamble to this Agreement.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Holder” means (i) the Invesco Purchaser as a holder of record of Registrable
Securities and (ii) any Affiliate of the Invesco Purchaser that is a direct or indirect transferee
of such Registrable Securities from the Invesco Purchaser. For purposes of this Agreement, the
Company may deem and treat the registered holder of Registrable Securities as the Holder and
absolute owner thereof, and the Company shall not be affected by any notice to the contrary.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Inspectors” is defined in Section 3.1.8.
“Invesco” is defined in Section 4.2.
“Invesco Purchaser” is defined in the preamble to this Agreement.
“IPO” is defined in the recitals to this Agreement.
“Losses” is defined in Section 4.1.
“Majority-in-Interest” means holders of more than 50% of the Registrable Securities.
“Management Agreement” means the management agreement, dated , 2008 between
the Company and Invesco Institutional (N.A.), Inc.
“Maximum Threshold” is defined in Section 2.1.3.
“OP Units” is defined in the recitals to this Agreement.
“Person” means an individual, a partnership, a limited liability company, a joint
venture, a corporation, a trust, an unincorporated organization, a government or any department or
agency thereof or any entity similar to any of the foregoing.
“Piggy-Back Registration” is defined in Section 2.2.1.
“Private Placement Securities” is defined in the recitals to this Agreement.
“Pro Rata Adjusted” is defined in Section 2.1.3.
“Prospectus” means the prospectus or prospectuses included in any Registration
Statement (including without limitation, any “free writing prospectus” (as defined in Rule 405 of
the Securities Act) and any prospectus subject to completion and a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act and any term sheet filed
pursuant to Rule 434 under the Securities Act), as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by reference or
deemed to be incorporated by reference in such prospectus or prospectuses.
-2-
“Records” is defined in Section 3.1.8.
“Registration” mean a registration effected by preparing and filing a registration
statement or similar document in compliance with the requirements of the Securities Act, and such
registration statement becoming effective.
“Registrable Securities” means at any time a class of equity securities of the Company
or of a successor to the entire business of the Company which are (1) the Common Stock and (2) the
Common Stock that may be acquired by the Holders in connection with the exercise by such Holders of
the exchange rights associated with the OP Units, including upon the transfer thereof by the
original Holder or any subsequent Holder, and shall include any warrants, shares of capital stock
or other securities of the Company issued as a dividend or other distribution with respect to or in
exchange for or in replacement of such Registrable Securities. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities on the earliest to occur of:
(a) the date on which a Registration Statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall have been sold,
transferred, disposed of or exchanged in accordance with such Registration Statement; (b) the date
on which such securities shall have ceased to be outstanding; (c) the date on which the Registrable
Securities have been sold and all transfer restrictions and restrictive legends with respect to
such Registrable Securities are removed upon the consummation of such sale and the seller and
purchaser of such Registrable Securities receive an opinion of counsel for the Company, which shall
be in form and content reasonably satisfactory to the seller and purchaser and their respective
counsel, to the effect that such Registrable Securities in the hands of the purchaser are freely
transferable without restriction or registration under the Securities Act in any public or private
transaction.
“Registration Statement” means any registration statement filed by the Company with
the Commission in compliance with the Securities Act for a public offering and sale of the Common
Stock or other securities of the Company, including the Prospectus, amendments and supplements to
such Registration Statement, including post-effective amendments, all exhibits and all materials
incorporated by reference or deemed to be incorporated by reference in such Registration Statement
(other than a registration statement (a) on Form S-4 or Form S-8, or their successors, (b) covering
only securities proposed to be issued in exchange for securities or assets of another entity, (c)
for an exchange offer or offering of securities solely to the Company’s existing stockholders, (d)
for an offering of debt that is convertible into equity securities of the Company or (e) for a
dividend reinvestment plan).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be in effect at the
time.
“underwritten offering” means a Registration in which securities of the Company are
sold to one or more underwriters for reoffering to the public.
2. Registration Rights.
2.1 Demand Registration.
2.1.1 Request for Registration. From and after the date hereof, any Holder of
Registrable Securities may make a written demand for registration under the Securities Act of all
or part of their Registrable Securities (a “Demand Registration”); provided, however, that
no request for a Demand Registration may be made prior to the first anniversary of the closing date
of the IPO. Any request for a Demand Registration shall specify the number of Registrable
Securities proposed to be sold and the intended method(s) of distribution thereof. The Company
will notify all other Holders of Registrable Securities of the request, and each Holder of
Registrable Securities who wishes to include all
-3-
or a portion of such Holder’s Registrable Securities in the Demand Registration (each such
Holder including Registrable Securities in such registration, a “Demanding Holder”) shall
so notify the Company in writing within ten Business Days after the receipt by the Holder of the
notice from the Company. The Company may include in such registration additional securities of the
class or classes of Registrable Securities to be registered thereunder, including securities to be
sold for the Company’s own account or the account of persons who are not Holders of Registrable
Securities. Upon receipt by the Company of any such notice, the Demanding Holders shall be entitled
to have their Registrable Securities included in the Demand Registration, subject to
Sections 2.1.3, 2.1.4 and 3.4.
2.1.2 Underwritten Offering. If a Majority-in-Interest of the Demanding Holders, so
elects and such Demanding Holders so advise the Company as part of their written request for a
Demand Registration, the offering of such Registrable Securities pursuant to such Demand
Registration shall be in the form of an underwritten offering. In such event, the right of any
Holder to include its Registrable Securities in such registration shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable
Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to
distribute their securities through such underwriting shall (i) enter into an underwriting
agreement in customary form with the Underwriter(s) selected for such underwriting by a
Majority-in-Interest of the Demanding Holders initiating the Demand Registration, which
Underwriter(s) shall be reasonably acceptable to the Company and (ii) complete and execute all
questionnaires, powers-of-attorney, indemnities, opinions and other documents required under the
terms of such underwriting agreement. Notwithstanding the foregoing, in no event shall the Company
be obligated to effect more than one (1) underwritten offering hereunder in any single six-month
period, with the first such six-month period measured from the date of the first Demand
Registration and ending on the date which is the sixth-month anniversary following such Demand
Registration, whether or not a Business Day.
2.1.3 Reduction of Offering. If the managing Underwriter(s) for a Demand Registration
that is to be an underwritten offering advises the Company and the Demanding Holders in writing
that the dollar amount or number of Registrable Securities which the Demanding Holders desire to
sell, taken together with all other shares of Common Stock or other securities which the Company
desires to sell and the shares of Common Stock or other securities, if any, as to which
registration has been requested pursuant to written contractual piggy-back registration rights held
by other stockholders of the Company who desire to sell or otherwise, exceeds the maximum dollar
amount or maximum number of securities that can be sold in such offering without adversely
affecting the proposed offering price, the timing, the distribution method, or the probability of
success of such offering (such maximum dollar amount or maximum number of securities, as
applicable, the “Maximum Threshold”), then the Company shall include in such registration:
(a) first, the Registrable Securities as to which the Demand Registration has been requested by the
Demanding Holders (pro rata in accordance with the number of Registrable Securities which such
Demanding Holders have requested be included in such registration, regardless of the number of
Registrable Securities or other securities held by each such Person (such proportion is referred to
herein as “Pro Rata Adjusted”)) that can be sold without exceeding the Maximum Threshold;
(b) second, to the extent that the Maximum Threshold has not been reached under the foregoing
clause (a), the shares of Common Stock or other securities that the Company desires to sell that
can be sold without exceeding the Maximum Threshold; (c) third, to the extent that the Maximum
Threshold has not been reached under the foregoing clauses (a) and (b), the shares of Common Stock
or other securities for the account of other Persons that the Company is obligated to register
pursuant to written contractual arrangements with such Persons and that can be sold without
exceeding the Maximum Threshold; and (d) fourth, to the extent that the Maximum Threshold has not
been reached under the foregoing clauses (a), (b) and (c), the shares of Common Stock that other
shareholders desire to sell that can be sold without exceeding the Maximum Threshold to the extent
that the Company, in its sole discretion, wishes to permit such sales pursuant to this clause (d).
-4-
2.1.4 Restrictions and Permitted Delays. The Company shall not be obligated to effect
any Demand Registration within six months after the effective date of a previous Demand
Registration or a previous registration under which the Demanding Holders had piggy-back rights
pursuant to Section 2.2 hereof wherein the Demanding Holders were permitted to register,
and sold, at least 50% of the Registrable Securities requested to be included therein. The Company
shall be entitled to postpone, for up to 60 days, the filing of any Registration Statement under
this Section 2.1, if, (a) at any time prior to the filing of such Registration Statement,
the Board determines, in its good faith business judgment, that such registration and offering
would involve premature disclosure of a matter the Board has determined would not be in the best
interest of the Company to disclose at such time or would materially and adversely affect any
financing, acquisition, corporate reorganization, or other material transaction involving the
Company, and (b) the Company delivers to the Demanding Holders written notice thereof within ten
Business Days of the date of receipt of such request for Demand Registration. In addition, if the
filing of a Registration Statement under this Section 2.1 at any time would require
inclusion in such Registration Statement of financial statements that are unavailable to the
Company for reasons beyond the Company’s control, the Company may, upon giving prompt written
notice of such action to the Demanding Holders, delay the filing of such Registration Statement for
the shortest possible period of time determined in good faith by the Company to be necessary for
such purpose.
2.2 Piggy-Back Registration.
2.2.1 Piggy-Back Rights. From and after the date hereof, until the termination of the
Management Agreement, if the Company proposes to file a Registration Statement under the Securities
Act with respect to an offering of equity securities by the Company for its own account or for
stockholders of the Company for their account and the registration form to be used may be used for
any registration of Registrable Securities, then the Company shall (a) give written notice of such
proposed filing to the Holders of Registrable Securities as soon as practicable but in no event
less than ten Business Days before the anticipated filing date, which notice shall describe the
amount and type of securities to be included in such offering, the intended method(s) of
distribution, and the name of the proposed managing Underwriter(s), if any, of the offering, and
(b) offer to the Holders of Registrable Securities in such notice the opportunity to register the
sale of such number of Registrable Securities as such Holders may request in writing within five
Business Days following receipt of such notice (a “Piggy-Back Registration”); provided,
however, that no request for a Piggy-Back Registration may be made prior to the first anniversary
of the closing date of the IPO. If at any time after giving written notice of its intention to
register any securities and prior to the effective date of the Registration Statement filed in
connection with such registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give written notice of
such determination to each Holder of Registrable Securities and, (x) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable Securities in
connection with such registration, and (y) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities for the same period as the delay
in registering such other securities. The Company shall cause such Registrable Securities to be
included in such registration and shall use reasonable efforts to cause the managing Underwriter(s)
of a proposed underwritten offering to permit the Registrable Securities requested to be included
in a Piggy-Back Registration on the same terms and conditions as any similar securities of the
Company and to permit the sale or other disposition of such Registrable Securities in accordance
with the intended method(s) of distribution thereof. All Holders of Registrable Securities
proposing to distribute their securities through a Piggy-Back Registration that involves an
Underwriter(s) shall enter into an underwriting agreement in customary form with the Underwriter(s)
selected for such Piggy-Back Registration and (ii) complete and execute all questionnaires,
powers-of-attorney, indemnities, opinions and other documents required under the terms of such
underwriting agreement.
-5-
2.2.2 Reduction of Offering. If the managing Underwriter(s) for a Piggy-Back
Registration that is to be an underwritten offering advises the Company and the Holders of
Registrable Securities that in their opinion the dollar amount or number of shares of Common Stock
or other securities which the Company desires to sell, taken together with shares of Common Stock
or other securities, if any, as to which registration has been demanded pursuant to written
contractual arrangements with Persons other than the Holders of Registrable Securities hereunder,
the Registrable Securities as to which registration has been requested under this Section
2.2, and the shares of Common Stock or other securities, if any, as to which registration has
been requested pursuant to the written contractual piggy-back registration rights of other
stockholders of the Company, exceeds the Maximum Threshold, then the Company shall include in any
such registration:
(a) If the registration is undertaken for the Company’s account: (i) first, the shares of
Common Stock or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Threshold; (ii) second, to the extent that the Maximum Threshold has not been
reached under the foregoing clause (i), the shares of Common Stock or other securities, if any,
comprised of Registrable Securities, as to which registration has been requested pursuant to the
applicable written contractual piggy-back registration rights of such security holders, Pro Rata
Adjusted, that can be sold without exceeding the Maximum Threshold; (iii) third, to the extent that
the Maximum Threshold has not been reached under the foregoing clauses (i) and (ii), the shares of
Common Stock or other securities for the account of other Persons that the Company is obligated to
register pursuant to written contractual piggy-back registration rights with such Persons and that
can be sold without exceeding the Maximum Threshold; and
(b) If the registration is a “demand” registration undertaken at the demand of Persons other
than the Holders of Registrable Securities, (i) first, the shares of Common Stock or other
securities for the account of the demanding Persons that can be sold without exceeding the Maximum
Threshold; (ii) second, to the extent that the Maximum Threshold has not been reached under the
foregoing clause (i), the shares of Common Stock or other securities that the Company desires to
sell that can be sold without exceeding the Maximum Threshold; (iii) third, to the extent that the
Maximum Threshold has not been reached under the foregoing clauses (i) and (ii), the shares of
Common Stock or other securities, if any, comprised of Registrable Securities, Pro Rata Adjusted,
as to which registration has been requested pursuant to the terms hereof, that can be sold without
exceeding the Maximum Threshold; (iv) fourth, to the extent that the Maximum Threshold has not been
reached under the foregoing clauses (i), (ii) and (iii), the shares of Common Stock or other
securities, if any, for the account of other Persons that the Company is obligated to register
pursuant to written contractual piggy-back registration rights with such Persons that can be sold
without exceeding the Maximum Threshold.
2.2.3 Withdrawal. Any Holder of Registrable Securities may elect to withdraw such
Holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company (whether on its own determination or as the result of a
withdrawal by Persons making a demand pursuant to written contractual obligations) may withdraw a
Registration Statement at any time prior to the effectiveness of the Registration Statement without
thereby incurring any liability to the Holders of Registrable Securities. Notwithstanding any such
withdrawal, the Company shall pay all expenses incurred by the Holders of Registrable Securities in
connection with such Piggy-Back Registration as provided in Section 3.3.
3. Registration Procedures.
3.1 Filings; Information. Whenever the Company is required to effect the registration
of any Registrable Securities pursuant to Section 2, the Company shall use its commercially
reasonable efforts to
-6-
effect the registration and sale of such Registrable Securities in accordance with the
intended method(s) of distribution thereof as expeditiously as reasonably possible, and in
connection with any such request:
3.1.1 Filing Registration Statement. The Company shall, as expeditiously as
reasonably possible after receipt of a demand for registration of Registrable Securities pursuant
to Section 2.1, prepare and file with the Commission a Registration Statement on any form
for which the Company then qualifies or which counsel for the Company shall deem appropriate and
which form shall be available for the sale of all Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution thereof, and shall use
reasonable efforts to cause such Registration Statement to become and remain effective for the
period required by Section 3.1.3; provided, however, that the Company shall have the right
to defer the filing of any Registration Statement to the same extent as provided in Section
2.1.4; provided, further, that the Company shall not be obligated to deliver securities and
shall not have penalties for failure to deliver securities, if a Registration Statement is not
effective at the time of exercise by the Holder.
3.1.2 Copies. The Company shall, upon request, prior to filing a Registration
Statement or Prospectus in respect of Registrable Securities, or any amendment or supplement
thereto, furnish without charge to the Holders of Registrable Securities included in such
registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to
be filed, each amendment and supplement to such Registration Statement (in each case including all
exhibits thereto and documents incorporated by reference therein), the Prospectus included in such
Registration Statement (including each preliminary Prospectus), and such other documents as the
Holders of Registrable Securities included in such Registration or legal counsel for any such
Holders may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such Holders.
3.1.3 Amendments and Supplements. The Company shall use its reasonable efforts to
prepare and file with the Commission such amendments, including post-effective amendments, and
supplements to such Registration Statement and the Prospectus used in connection therewith as may
be necessary to keep such Registration Statement effective and in compliance with the provisions of
the Securities Act until all Registrable Securities and other securities covered by such
Registration Statement have been disposed of in accordance with the intended method(s) of
distribution set forth in such Registration Statement (which period shall not exceed the sum of 180
days plus any period during which any such disposition is interfered with by any stop order or
injunction of the Commission or any governmental agency or court) or such securities have been
withdrawn.
3.1.4 Notification. After the filing of a Registration Statement, the Company shall
promptly, and in no event more than five Business Days after such filing, notify the Holders of
Registrable Securities included in such Registration Statement of such filing, and shall further
notify such Holders within three Business Days of the occurrence of any of the following: (a) when
such Registration Statement becomes effective; (b) when any post-effective amendment to such
Registration Statement becomes effective; (c) the issuance by the Commission of any stop order (and
the Company shall take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered); and (d) any request by the Commission for any amendment or supplement to
such Registration Statement or any Prospectus relating thereto or for additional information or of
the occurrence of an event requiring the preparation of a supplement or amendment to such
Prospectus so that, as thereafter delivered to the purchasers of the securities covered by such
Registration Statement, such Prospectus will not contain an 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, and promptly make available to the Holders of Registrable Securities
included in such Registration Statement any such supplement or amendment; except that before filing
with the Commission a Registration Statement or Prospectus or any amendment
-7-
or supplement thereto, including documents incorporated by reference, the Company shall furnish to the
Holders of Registrable Securities included in such Registration Statement and to the legal
counsel for any such Holders, copies of all such documents proposed to be filed sufficiently in
advance of filing to provide such Holders and legal counsel with a reasonable opportunity to review
such documents and comment thereon, and the Company shall not file any Registration Statement or
Prospectus or amendment or supplement thereto, including documents incorporated by reference, to
which such Holders or their legal counsel shall reasonably object.
3.1.5 State Securities Laws Compliance. The Company shall use its commercially
reasonable efforts to (a) register or qualify the Registrable Securities covered by the
Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United
States as the Holders of Registrable Securities included in such Registration Statement (in light
of their intended plan of distribution) may reasonably request and (b) take such action as
reasonably necessary to cause such Registrable Securities covered by the Registration Statement to
be registered with or approved by such other governmental authorities as may be necessary by virtue
of the business and operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the Holders of Registrable Securities included in such
Registration Statement to consummate the disposition of such Registrable Securities in such
jurisdictions; provided, however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify but for this
paragraph, consent to general service of process in any such jurisdiction or subject itself to
taxation in any such jurisdiction.
3.1.6 Agreements for Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of such Registrable
Securities. Such Holders of Registrable Securities shall agree to such representations, warranties,
covenants and indemnification and contribution obligations for selling stockholders as are
customarily contained in agreements of that type used by the Underwriters.
3.1.7 Cooperation. The chief executive officer of the Company, the chief financial
officer of the Company, the principal accounting officer of the Company and all other officers and
members of the management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the preparation of the
Registration Statement with respect to such offering and all other offering materials and related
documents, and participation in meetings with Underwriters, attorneys, accountants and potential
investors.
3.1.8 Records. The Company shall make available for inspection by the Holders of
Registrable Securities included in such Registration Statement, any Underwriter participating in
any disposition pursuant to such Registration Statement and any attorney, accountant or other
professional retained by any Holder of Registrable Securities included in such Registration
Statement or any Underwriter (collectively, the “Inspectors”), all financial and other
records, pertinent corporate documents and properties of the Company (collectively, the
“Records”), as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to supply all information
reasonably requested by any of them in connection with such Registration Statement. Records which
the Company determines, in good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Holder of Registrable Securities included in such Registration Statement agrees
that information obtained by it as a result of such inspections shall be
-8-
deemed confidential and shall not be used by it as the basis for any market transactions in the securities of
the Company unless and until such is made generally available to the public. Each Holder of
Registrable Securities included in such Registration Statement further agrees that it will, upon
learning that disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential.
3.1.9 Opinions and Comfort Letters. If a Registration Statement in respect of
Registrable Securities include an underwritten offering, the Company shall furnish to each Holder
of Registrable Securities included in such Registration Statement a signed counterpart, addressed
to such Holder, of (a) any opinion of counsel to the Company delivered to any Underwriter and (b)
any comfort letter from the Company’s independent public accountants delivered to any Underwriter.
3.1.10 Earnings Statement. The Company shall make available to its stockholders, as
soon as practicable but not more than 15 months after the effective date of the Registration
Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder.
3.1.11 Listing. The Company shall use its reasonable efforts to cause all Registrable
Securities included in any Registration Statement to be listed on such exchanges or otherwise
designated for trading in the same manner as similar securities issued by the Company are then
listed or designated.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.1.4(d), each Holder of
Registrable Securities included in any registration shall immediately discontinue disposition of
such Registrable Securities pursuant to the Registration Statement covering such Registrable
Securities until such Holder receives the supplemented or amended Prospectus contemplated by
Section 3.1.4(d) and, if so directed by the Company, each such Holder will deliver to the
Company all copies, other than permanent file copies then in such Holder’s possession, of the most
recent Prospectus covering such Registrable Securities at the time of receipt of such notice.
3.3 Registration Expenses. The Company shall pay the following costs and expenses
incurred in connection with (a) any Demand Registration pursuant to Section 2.1, and (b)
any Piggy-Back Registration pursuant to Section 2.2, and all expenses incurred in
performing or complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all registration and
filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including
fees and disbursements of counsel in connection with blue sky qualifications of the Registrable
Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including, without
limitation, all salaries and expenses of its officers and employees); (v) the fees and expenses
incurred in connection with the listing of the Registrable Securities as required by Section
3.1.11; (vi) Financial Industry Regulatory Authority, Inc. fees; (vii) reasonable fees and
disbursements of counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated with the delivery
of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the
reasonable fees and expenses of any special experts retained by the Company in connection with such
Registration; and (ix) the reasonable fees and expenses of one legal counsel selected by the
holders of a Majority-in-Interest of the Registrable Securities included in such Registration. The
Company shall have no obligation to pay any other costs or expenses in the course of the
transaction contemplated hereby, including underwriting discounts or selling commissions
attributable to the Registrable Securities being sold by the holders thereof, which underwriting
discounts or selling commissions shall be borne by such holders. Additionally, in an
-9-
underwritten offering, all selling stockholders and the Company shall bear the expenses of the Underwriters, pro
rata, in proportion to the respective amount of shares each is selling in such offering.
The Company shall have the right to exclude any Holder that does not comply with the preceding
sentence from the applicable Registration.
The obligation of the Company to bear the expenses described in this Section 3.3 shall
apply irrespective of whether a registration, once properly demanded, if applicable, becomes
effective, is withdrawn or suspended, is converted to another form of registration and irrespective
of when any of the foregoing shall occur; provided, however, that Registration Expenses for any
Registration Statement withdrawn solely at the request of a Holder of Registrable Securities
(unless withdrawn following postponement of filing by the Company in accordance with Section
2.1.4 (i) or (ii)) or any supplements or amendments to a Registration Statement or
Prospectus resulting from a misstatement furnished to the Company by a Holder shall be borne by
such Holder.
3.4 Information. As a condition to being included in any Registration Statement, the
Holders of Registrable Securities shall provide such information as may reasonably be requested by
the Company, or the managing Underwriters, if any, in connection with the preparation of any
Registration Statement in order to effect the registration of any Registrable Securities under the
Securities Act pursuant to Section 2 and in connection with the Company’s obligation to
comply with federal and applicable state securities laws. If a Holder fails to provide such
information after reasonably requested, the Company may omit such Holder’s Registrable Securities
from such Registration Statement.
4. Indemnification and Contribution.
4.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless
to the fullest extent permitted by law each Holder of Registrable Securities, and each of their
respective officers, employees, affiliates, directors, partners, members, attorneys and agents, and
each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act) such Holder of Registrable Securities from and against any
expenses, losses, judgments, claims, damages or liabilities (“Losses”), whether joint or
several, arising out of or based upon any untrue statement (or allegedly untrue statement) of a
material fact contained in any Registration Statement under which the sale of such Registrable
Securities was registered under the Securities Act, Prospectus (including any preliminary
Prospectus) , or any amendment thereof or supplement thereto, or arising out of or based upon any
omission (or alleged omission) to state a material fact required to be stated therein or necessary
to make the statements therein, in the case of the Prospectus in light of the circumstances under
which they were made, not misleading; provided, however, that the Company will not be liable in any
such case to the extent that any such Loss arises out of or is based upon any untrue statement or
allegedly untrue statement or omission or alleged omission made in such Registration Statement,
Prospectus, or any such amendment thereof or supplement thereto, in reliance upon and in conformity
with information furnished to the Company, in writing, by such Holder expressly for use therein.
4.2 Indemnification by Holders of Registrable Securities. Each Holder of Registrable
Securities will, in the event that any Registration is being effected under the Securities Act
pursuant to this Agreement of any Registrable Securities held by such Holder, indemnify and hold
harmless to the fullest extent permitted by law the Company, and each of its officers, employees,
affiliates, directors, and agents, and each Person who controls the Company within the meaning of
the Securities Act (excluding Invesco to the extent that Invesco is the Holder of Registrable
Securities) and each underwriter (if any), and each Person, if any, who controls such underwriter
within the meaning of the Securities Act, against any Losses, whether joint or several, insofar as
such Losses (or actions in respect thereof) arise out of or are based upon any untrue statement (or
allegedly untrue statement) of a material fact contained in any
-10-
Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, Prospectus
(including any preliminary Prospectus), or any amendment thereof or supplement thereto, or arise
out of or are based upon any omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statement therein, in the
case of the Prospectus in light of the circumstances under which they were made, not misleading, if
the statement or omission was made in reliance upon and in conformity with information furnished in
writing to the Company by such Holder expressly for use therein, and each such Holder of
Registrable Securities shall reimburse the Company. Each Holder’s indemnification obligations
hereunder shall be several and not joint and shall be limited to the amount of any net proceeds
actually received by such Holder.
Such indemnity shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company or any Indemnified Party.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any Person of
any notice of any Loss or any action in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2, such Person (the “Indemnified Party”) shall, if a claim in
respect thereof is to be made against any other Person for indemnification hereunder, notify such
other Person (the “Indemnifying Party”) in writing of the Loss or action; provided,
however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such
Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually
prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any
claim or action brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it wishes, jointly with
all other Indemnifying Parties, to assume control of the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action, the Indemnifying
Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that in any action in which both the Indemnified Party
and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to
employ separate counsel (but no more than one such separate counsel) to represent the Indemnified
Party and its controlling Persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party,
with the reasonable fees and reasonable expenses of such counsel to be paid by such Indemnifying
Party if, based upon the written opinion of counsel of such Indemnified Party, representation of
both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, consent to entry of judgment or effect any settlement of any claim or pending or
threatened proceeding in respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or
settlement includes an unconditional release of such Indemnified Party from all liability arising
out of such claim or proceeding and does not include any statement of admission of fault,
culpability or failure to act by or on behalf of such Indemnified Party.
4.4 Contribution.
4.4.1 If the indemnification provided for in this Section 4 is unavailable to any
Indemnified Party or insufficient to hold it harmless in respect of any Loss referred to herein,
then each such 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 Loss in such proportion
as is appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying
Parties in connection with the actions or omissions which resulted in such Loss, as well as any
other relevant equitable considerations.
-11-
The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by such Indemnified Party or
such Indemnifying Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
4.4.2 The parties agree that it would not be just and equitable if contribution pursuant to
this Section 4.4 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 Section 4.4.1.
4.4.3 The amount paid or payable by an Indemnifying Party as a result of any Loss shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, no Holder of Registrable Securities
shall be required to contribute any amount in excess of the dollar amount of the net proceeds
(after payment of any underwriting fees, discounts, commissions or taxes) actually received by such
Holder from the sale of Registrable Securities which gave rise to such contribution obligation. 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.
4.4.4 The indemnity and contribution agreements contained in this Section 4 are in
addition to any liability which the Indemnifying Persons may otherwise have to the Indemnified
Persons hereunder, under applicable law or at equity.
5. Underwriting and Distribution.
5.1 Rule 144. The Company covenants that it shall file any reports required to be
filed by it under the Securities Act and the Exchange Act and shall take such further action as the
Holders of Registrable Securities may reasonably request, all to the extent required from time to
time to enable such Holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities
Act, as such Rules may be amended from time to time, or any similar Rule or regulation hereafter
adopted by the Commission. Upon the request of any Holder, the Company will deliver to such Holder
a written statement as to whether it has complied with such requirements.
6. Miscellaneous.
6.1 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties
and obligations of the Company hereunder may not be assigned or delegated by the Company in whole
or in part. This Agreement and the rights, duties and obligations of the Holders of Registrable
Securities hereunder may be freely assigned or delegated by such Holder of Registrable Securities
in conjunction with and to the extent of any transfer of Registrable Securities held by any such
Holder. This Agreement and the provisions hereof shall be binding upon and shall inure to the
benefit of each of the parties hereto and their respective permitted successors and assigns;
provided, however, that no such transfer or assignment shall be binding upon or obligate the
Company to any such assignee unless and until the Company shall have received written notice of
such transfer or assignment as herein provided and a written agreement of the assignee to be bound
by the provisions of this Agreement. This Agreement is not intended to confer any rights or
benefits on any Persons that are not party hereto other than as expressly set forth in Article
4 and this Section 6.1.
-12-
6.2 Notices. All notices, demands, requests, consents, approvals or other
communications required or permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by reputable overnight
courier service with charges prepaid, or transmitted by hand delivery, telex or facsimile, addressed as set forth below, or
to such other address as such party shall have specified most recently by written notice. Notice
shall be deemed given on the date of service or transmission if personally served or transmitted by
telex or facsimile; provided, however, that if such service or transmission is not on a Business
Day or is after normal business hours, then such notice shall be deemed given on the next Business
Day. Notice otherwise sent as provided herein shall be deemed given on the next Business Day
following timely delivery of such notice to a reputable overnight courier service with an order for
next-day delivery.
To the Company:
Invesco Agency Securities Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇▇▇ Chance US LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
To a Holder, to:
The address of such Holder(s) as are then reflected on the records of the Company.
6.3 Severability. This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as a part
of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may
be possible that is valid and enforceable.
6.4 Counterparts. This Agreement may be executed by facsimile and in multiple
counterparts, and all of which taken together shall constitute one and the same instrument.
6.5 Entire Agreement. This Agreement (including all agreements entered into pursuant
hereto and all certificates and instruments delivered pursuant hereto and thereto) constitutes the
entire agreement of the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
6.6 Modifications and Amendments. The Company may from time to time supplement or
amend this Agreement without the approval of any of the Holders in order to cure any ambiguity, to
correct or supplement any provision contained herein that may be defective or inconsistent with any
other provisions herein, or to make any other provisions in regard to matters or questions arising
hereunder that the Company may deem necessary or desirable and that the Company, in the exercise of
reasonable judgment, determines will not materially adversely affect the interest of the Holders.
All other
-13-
modifications or amendments shall require the written consent of the Holders of a
Majority-in-Interest of the Registrable Securities.
6.7 Titles and Headings. Titles and headings of sections of this Agreement are for
convenience only and shall not affect the construction of any provision of this Agreement.
6.8 Waivers and Extensions. Any party to this Agreement may waive any right, breach
or default which such party has the right to waive, provided, that such waiver will not be
effective against the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of
any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding
or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or
extension of time for performance of any obligations or acts shall be deemed a waiver or extension
of the time for performance of any other obligations or acts.
6.9 Remedies Cumulative. In the event that the Company fails to observe or perform
any covenant or agreement to be observed or performed under this Agreement, each Holder of
Registrable Securities may proceed to protect and enforce its rights by suit in equity or action at
law, whether for specific performance of any term contained in this Agreement or for an injunction
against the breach of any such term or in aid of the exercise of any power granted in this
Agreement or to enforce any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers or remedies conferred
under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be
cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement
or now or hereafter available at law, in equity, by statute or otherwise.
6.10 Governing Law. This Agreement shall for all purposes be deemed to be made under
and shall be construed in accordance with the laws of the State of New York, without giving effect
to conflicts of law principles that would result in the application of the substantive laws of
another jurisdiction. The parties hereto agree that any action, proceeding or claim against it
arising out of or relating in any way to this Agreement shall be brought and enforced in the courts
of the State of New York or the United States District Court for the Southern District of New York,
and irrevocably submit to such jurisdiction, which jurisdiction shall be exclusive. The parties
hereto hereby waive any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
6.11 Waiver of Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR OTHER
PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR
RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF ANY HOLDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
6.12 Jurisdiction. Any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in any federal or state court located in the County and State of
New York, and each of the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding which is brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding
-14-
may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided in Section
6.2 shall be deemed effective service of process on such party.
6.13 Other Registration Rights. Nothing herein shall prohibit the Company from
granting to any Person the right to cause the Company to register any securities of the Company
under the Securities Act; provided, that the Company shall not grant any such right that conflicts
with the rights of the Holders under this Agreement or otherwise limits or reduces such rights.
6.14 Expenses. Except as otherwise provided for herein or otherwise agreed to in
writing by the parties, all costs and expenses incurred in connection with the preparation of this
Agreement shall be paid by the Company.
6.15 Holdback Agreement. In connection with an underwritten primary or secondary
offering to the public, each Holder of Registrable Securities agrees, subject to any exceptions
that may be agreed upon at the time of such offering, not to sell or otherwise transfer or dispose
of any shares of Registrable Securities (or other securities) of the Company held by them (other
than Registrable Securities included in such offering in accordance with the terms hereof) for a
period equal to the lesser of 180 days following the effective date of a Registration Statement of
the Company filed under the Securities Act or such shorter period as the managing underwriter(s)
shall agree to; provided that all other stockholders who own more than 10% of the outstanding
Common Stock of the Company and all officers and directors of the Company enter into similar
agreements. Such agreement shall be in writing in form reasonably satisfactory to the Company and
the managing underwriter. The Company may impose stop-transfer instructions with respect to the
shares of Registrable Securities (or other securities of the Company) subject to the foregoing
restriction until the end of said period.
[Remainder of page intentionally left blank]
-15-
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed
and delivered as of the date first written above.
| INVESCO AGENCY SECURITIES INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [INVESCO PURCHASER] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Schedule 1
THE HOLDERS
| (a) | List of holders of Common Stock: |
| Name of the Holder | Number of | Address of the Holder | ||
| Common Stock Held | ||||
[Invesco Purchaser]
|
[ ] | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ | ||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| (b) | List of holders of the OP Units (exchangeable into the Common Stock on a one-for-one basis): |
| Name of the Holder | Number of | Address of the Holder | ||
| OP Units Held | ||||
[Invesco Purchaser]
|
[ ] | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ | ||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||