EXHIBIT 99.2
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-Up Agreement (the "Agreement") is
entered into as of August 1, 2000 by and among Summit Properties Inc., a
Maryland corporation (the "Company"), Worthing Investors, LLC, a Georgia limited
liability company ("Worthing"), and Worthing Shiloh Investors, LLC, a Georgia
limited liability company ("Worthing Shiloh"). Worthing and Worthing Shiloh
(each of which contemporaneously herewith is to become a partner of Summit
Properties Partnership, L.P., a Delaware limited partnership (the
"Partnership")), together with their respective permitted successors and
assigns, are referred to herein as the "Holders".
WHEREAS, Worthing is to receive contemporaneously herewith common units
of limited partnership interest in the Partnership ("Units"), issued without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), in consideration for its interest in Summit Sweetwater, LLC, a Georgia
limited liability company, pursuant to Section 8.3 of that certain Operating
Agreement between the Partnership and Worthing dated as of June 12, 1998;
WHEREAS, Worthing Shiloh is to receive contemporaneously herewith Units
in the Partnership, issued without registration under the Securities Act, in
consideration for its interest in Summit Shiloh, LLC, a Georgia limited
liability company, pursuant to Section 8.3 of that certain Operating Agreement
between the Partnership and Worthing Shiloh dated as of October __, 1998;
WHEREAS, such Units may be redeemed for shares of the Company's common
stock, par value $.01 per share ("Common Stock"), issued without registration
under the Securities Act; and
WHEREAS, in connection with the transfer of the interests described
above to the Partnership, the Company has agreed to provide Worthing and
Worthing Shiloh with the registration rights set forth in Section 3 hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Certain Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for
which a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible for sale pursuant to Rule 144(k) under
the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 5 hereof; and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by a
selling Holder, the fees and disbursements of counsel representing a selling
Holder, and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a selling Holder, all of which shall be borne by such
Holder in all cases.
"Registration Statement" shall mean any registration statement of the
Company and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act which
covers any of the Registrable Shares on an appropriate form, and all amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Shares" shall mean the shares of Common Stock issued or to be issued
to the Holder(s) upon redemption or in exchange for its or their Units, as
appropriately adjusted on account of any stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization.
2. Lock-Up Agreement.
(a) Each Holder hereby agrees that, except as set forth in
Section 2(b) below, for one (1) year from the date hereof, without the prior
written consent of the Company, it will not offer, sell, contract to sell,
hypothecate, pledge, seek to redeem, grant an option, right or warrant to
purchase or otherwise dispose of, directly or indirectly (collectively, "Sell"),
any Shares or Units (the "Lock-Up").
(b) The following Sales of Shares and/or Units shall not be
subject to the Lock-Up set forth in Section 2(a):
(i) a Holder who is a natural person may Sell
his or her Shares or Units to his or her spouse, siblings,
parents or any natural or adopted children or other
descendants or to any personal trust in which any such family
member or such Holder retains the entire beneficial interest;
(ii) a Holder that is a corporation,
partnership, joint venture or other business entity may Sell
its Shares or Units to one or more Persons who have an
ownership interest in such Holder or to one or more other
entities that are wholly-owned and controlled, legally and
beneficially, by such Holder or by one or more of the Persons
who have an ownership interest in such Holder;
(iii) a Holder may Sell his or her Shares or
Units on his or her death to such Holder's estate, executor,
administrator or personal representative or to such Holder's
beneficiaries pursuant to a devise or bequest or by laws of
descent and distribution;
(iv) a Holder may Sell Shares or Units as a gift or
other transfer without consideration; and
(v) a Holder may Sell Shares or Units pursuant
to a pledge, grant of security interest or other encumbrance
effected in a bona fide transaction with an unrelated and
unaffiliated pledgee;
provided, however, that as a condition to any transfer of Units or Shares the
transferee must be an "accredited investor" within the meaning of Regulation D
promulgated under the Securities Act and must provide the Company with such
representations and other assurances that the
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transferee is an accredited investor as the Company deems necessary or
appropriate, and provided further, however, that in the case of any transfer of
Shares or Units pursuant to clauses (i), (ii), (iv) and (v), the transferor
shall, at the request of the Company, provide evidence satisfactory to the
Company that the transfer is exempt from the registration requirements of the
Securities Act.
In the event any Holder Sells any Shares or Units as described in this
Section 2(b), such Shares or Units shall remain subject to this Agreement and,
as a condition of the validity of such disposition, the transferee shall be
required to execute and deliver a counterpart of this Agreement (except that a
pledgee shall not be required to execute and deliver a counterpart of this
Agreement until it forecloses upon such Shares or Units). Thereafter, such
transferee shall be deemed to be a Holder for purposes of this Agreement.
3. Registration.
(a) Demand Registration. Subject to the conditions set forth
in this Agreement, at any time after one (1) year from the date hereof, the
Company shall, at the written request of a Holder who is unable to sell its
Registrable Shares pursuant to Rule 144(k) under the Securities Act (or any
successor provision), cause to be filed as soon as practicable after the date of
such request by such Holder a Registration Statement under Rule 415 under the
Securities Act relating to the sale by the Holder of all or any integral
multiple of 100,000 shares of the Registrable Shares held by such Holder in
accordance with the terms hereof, and shall use reasonable efforts to cause such
Registration Statement to be declared effective by the SEC as soon as
practicable thereafter; provided, however, that the Company shall not be
required to effect more than two demand registrations pursuant to this Section
3(a). The Company may, in its sole discretion, elect to file a Registration
Statement with respect to any or all of the Shares before receipt of notice from
any Holder, but in no event sooner than ten (10) months after the date hereof.
The Company agrees to use reasonable efforts to keep each Registration Statement
continuously effective until the earlier of (i) six (6) months thereafter, or
(ii) the date on which such Holder no longer holds any Registrable Shares.
Notwithstanding the foregoing provisions of this Section 3(a), during any period
of time which the Company has a Registration Statement in effect under the
provisions of Rule 415 of the Securities Act relating to the original issuance
by the Company of Shares in connection with the redemption of Holders' Units,
such Holders will not have the right to request the registration of Registrable
Shares under the provisions of this Section 3(a).
(b) Piggyback Registration. If at any time while any
Registrable Shares are outstanding and a Registration Statement applicable to a
Holder under Section 3(a) is not effective, the Company (in its sole discretion
and without any obligation to do so) proposes to file a registration statement
under the Securities Act in connection with its offering of Common Stock solely
for cash (other than a registration statement (i) on Form S-8 or any successor
form to such Form or in connection with any employee or director welfare,
benefit or compensation plan, (ii) on Form S-4 or any successor form to such
Form or in connection with an exchange offer, (iii) in connection with a rights
offering exclusively to existing holders of Common
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Stock, (iv) in connection with an offering solely to employees of the Company or
its subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of the
Securities Act), the Company shall give prompt written notice of such proposed
filing to each Holder who has requested to receive such notices at least fifteen
(15) days prior to the proposed filing date. The notice referred to in the
preceding sentence shall offer each Holder the opportunity to register any
amount of Registrable Shares as such Holder may request (a "Piggyback
Registration"). Subject to the provisions of Section 4 below, the Company shall
include in such Piggyback Registration, in the registration and qualification
for sale under the blue sky or securities laws of the various states and in any
underwriting in connection therewith, all Registrable Shares for which the
Company has received written requests for inclusion therein within fifteen (15)
calendar days after the notice referred to above has been given by the Company
to each Holder. Each Holder of Registrable Shares shall be permitted to withdraw
all or part of its Registrable Shares from a Piggyback Registration at any time
prior to the effective date of such Piggyback Registration. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company
and the managing underwriter advises the Company that the total number of shares
of Common Stock requested to be included in such registration exceeds the number
of shares of Common Stock which can be sold in such offering, the Company will
include in such registration in the following priority: (i) first, all shares of
Common Stock the Company proposes to sell, and (ii) second, up to the full
number of Registrable Shares and shares of Common Stock requested to be included
in such registration by any Holders and other holders of registration rights,
which in the opinion of such managing underwriter, can be sold without adversely
affecting the price range or probability of success of such offering (with the
shares of Common Stock to be registered allocated pro rata among the Holders and
the other holders of registration rights on the basis of the total number of
Registrable Shares and the other shares of the Company's Common Stock requested
to be included in such registration by all such Holders and other holders of
registration rights).
(c) Registration Statement Covering Issuance of Common Stock.
In lieu of the registration rights set forth in Sections 3(a) and 3(b) above,
the Company may, in its sole discretion, prior to the first date upon which the
Units held by the Holders may be redeemed (or such other date as may be required
under applicable provisions of the Securities Act) file a registration statement
(the "Issuance Registration Statement") under Rule 415 under the Securities Act
relating to the issuance to Holders of Common Stock upon the redemption of Units
or in exchange for Units. Thereupon, the Company shall use reasonable efforts to
cause such Registration Statement to be declared effective by the SEC for all
shares of Common Stock covered thereby. The Company agrees to use reasonable
efforts to keep the Issuance Shelf Registration Statement continuously
effective, with respect to the Registrable Shares of a particular Holder, until
the date on which such Holder has redeemed or exchanged such Holder's Units for
Common Stock. In the event that the Company is unable to cause such Issuance
Registration Statement to be declared effective by the SEC or (except as
otherwise permitted by Sections 8(b) and 9) is unable to keep such Issuance
Registration Statement effective until the date on which each Holder has
redeemed or exchanged such Holder's Units
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for Common Stock, then the rights of each Holder set forth in Sections 3(a) and
3(b) above shall be restored.
(d) Notification and Distribution of Materials. The Company
shall notify each Holder of the filing and the effectiveness of any Registration
Statement applicable to the shares of such Holder and shall furnish to each such
Holder the number of copies of such Registration Statement (including any
amendments, supplements and exhibits), the Prospectus contained therein
(including each preliminary prospectus and all related amendments and
supplements) and any documents incorporated by reference in such Registration
Statement or such other documents as such Holder may reasonably request in order
to facilitate its sale of the Registrable Shares in the manner described in such
Registration Statement.
(e) Amendments and Supplements. The Company shall prepare and
file with the SEC from time to time such amendments and supplements to any
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all the
Registrable Shares until the earlier of (i) such time as all of the Registrable
Shares have been disposed of in accordance with the intended methods of
disposition by the Holders as set forth in such Registration Statement or (ii)
the date on which such Registration Statement ceases to be effective in
accordance with the terms of this Section 3. Upon five (5) business days'
notice, the Company shall file any supplement or post-effective amendment to
such Registration Statement with respect to the plan of distribution or such
Holder's ownership interests in Registrable Shares that is reasonably necessary
to permit the sale of the Holder's Registrable Shares pursuant to the
Registration Statement. The Company shall file any necessary listing
applications or amendments to the existing applications to cause the Shares
registered under the Registration Statement to be then listed or quoted on the
primary exchange or quotation system on which the Common Stock is then listed or
quoted.
(f) Notice of Certain Events.
(i) The Company shall promptly notify each Holder of,
and confirm in writing, the filing of any Registration Statement or any
Prospectus, amendment or supplement related thereto or any post-effective
amendment to any Registration Statement and the effectiveness of any
post-effective amendment.
(ii) At any time when a Prospectus relating to a
Registration Statement is required to be delivered under the Securities Act, the
Company shall immediately notify each Holder of the happening of any event as a
result of which the Prospectus included in such Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. In such event, the Company shall promptly prepare and furnish to
each applicable Holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may
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be necessary so that, as thereafter delivered to the purchasers of Registrable
Shares, such Prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they are
made, not misleading. The Company will, if necessary, amend the Registration
Statement of which such Prospectus is a part to reflect such amendment or
supplement.
4. State Securities Laws. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Registration
Statement hereunder, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities or "Blue Sky" laws of such
states as any Holder may reasonably request, and the Company shall use its best
efforts to cause such filings to become effective; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such state in which it is not then qualified or
to file any general consent to service of process in any such state. Once
effective, the Company shall use its best efforts to keep such filings effective
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by the Holder
as set forth in the Registration Statement, (b) in the case of a particular
state, a Holder has notified the Company that it no longer requires an effective
filing in such state in accordance with its original request for filing or (c)
the date on which the Registration Statement ceases to be effective in
accordance with Section 3. The Company shall promptly notify each Holder of, and
confirm in writing, the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Shares for sale under
the securities or "Blue Sky" laws of any jurisdiction or the initiation of any
threat of any proceeding for such purpose.
5. Expenses. The Company shall bear all Registration Expenses incurred
in connection with the registration of the Registrable Shares pursuant to this
Agreement, except that each Holder shall be responsible for any brokerage or
underwriting commissions and taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer of Registrable
Shares sold by it and for any legal, accounting and other expenses incurred by
it. In the event that the Company (in its sole discretion and without any
obligation to do so) amends a Registration Statement in response to a request by
a Holder for such amendment or to reflect a change in the plan of distribution
or ownership interests with respect to a Holder's Registrable Shares, the Holder
requesting such amendment or whose actions require such amendment shall bear all
fees, costs and expenses incurred by the Company or by such Holder in connection
therewith, including fees related to the delisting of Shares from any national
securities exchange or quotation system on which such Shares had been listed for
trading.
6. Indemnification by the Company. The Company agrees to indemnify each
Holder and its respective officers, directors, employees, agents,
representatives and affiliates, and each person or entity, if any, that controls
such Holder within the meaning of the Securities Act, and each other person or
entity, if any, subject to liability because of his, her or
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its connection with such Holder (each an "Indemnitee") against any and all
losses, claims, damages, actions, liabilities, costs and expenses (including,
without limitation, reasonable fees, expenses and disbursements of attorneys and
other professionals), joint or several, arising out of or based upon any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to any action or inaction
required of the Company in connection with any Registration Statement or
Prospectus, or upon any untrue or alleged untrue statement of material fact
contained in the Registration Statement or any Prospectus, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided that the Company shall not be
liable to such Indemnitee or any person who participates as an underwriter in
the offering or sale of Registrable Shares or any other person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof), cost or expenses arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished to the Company in
writing for use in connection with the Registration Statement or the Prospectus
contained therein by such Indemnitee or (ii) such Holder's failure to send or
give a copy of the final, amended or supplemented prospectus furnished to the
Holder by the Company at or prior to the time such action is required by the
Securities Act to the person claiming an untrue statement or alleged untrue
statement or omission or alleged omission if such statement or omission was
corrected in such final, amended or supplemented prospectus.
7. Covenants of Holders. Each Holder hereby agrees (a) to cooperate
with the Company and to furnish to the Company in writing all such information
concerning its plan of distribution and ownership interests with respect to its
Registrable Shares in connection with the preparation of a Registration
Statement with respect to such Holder's Registrable Shares and any filings with
any state securities commissions as the Company may reasonably request, (b) to
furnish to the Company in writing all information required to be disclosed by it
in the Registration Statement pursuant to the Securities Act in order to make
the information previously furnished to the Company by such Holder not
misleading, (c) to deliver or cause delivery of the Prospectus contained in such
Registration Statement (other than an Issuance Registration Statement) to any
purchaser of the shares covered by such Registration Statement from the Holder
and (d) to indemnify the Company, its officers, directors, employees, agents,
representatives and affiliates, and each person, if any, who controls the
Company within the meaning of the Securities Act, and each other person, if any,
subject to liability because of his connection with the Company, against any and
all losses, claims, damages, actions, liabilities, costs and expenses arising
out of or based upon (i) any untrue statement or alleged untrue statement of
material fact contained in either such Registration Statement or the Prospectus
contained therein, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, if and to the extent that such statement or
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omission occurs from reliance upon and in conformity with written information
regarding the Holder, its plan of distribution or its ownership interests, which
was furnished to the Company by the Holder for use therein unless such statement
or omission was corrected in writing to the Company not less than five (5)
business days prior to the date of the final prospectus (as supplemented or
amended, as the case may be) or (ii) the failure by the Holder to deliver or
cause to be delivered the Prospectus contained in the Registration Statement (as
amended or supplemented, if applicable) furnished by the Company to the Holder
to any purchaser of the shares covered by such Registration Statement from the
Holder through no fault of the Company.
8. Suspension of Registration Requirement.
(a) The Company shall promptly notify each Holder of, and
confirm in writing, the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement with respect to such Holder's
Registrable Shares or the initiation of any proceedings for that purpose. The
Company shall use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such a Registration Statement at the earliest
possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a Registration Statement shall be suspended
in the event and during such period as unforeseen circumstances exist
(including, without limitation, (i) an underwritten primary offering by the
Company if the Company is advised by the underwriters that the sale of
Registrable Shares under the Registration Statement would impair the pricing or
commercial practicality of the primary offering or (ii) pending negotiations
relating to, or consummation of, a transaction or the occurrence of an event
that would require additional disclosure of material information by the Company
in the Registration Statement or such filing, as to which the Company has a bona
fide business purpose for preserving confidentiality or which renders the
Company unable to comply with SEC requirements) (such unforeseen circumstances
being hereinafter referred to as a "Suspension Event") that would make it
impractical or unadvisable to cause the Registration Statement or such filings
to become effective or to amend or supplement the Registration Statement, but
such suspension shall continue only for so long as such event or its effect is
continuing. The Company shall notify each Holder of the existence and, in the
case of circumstances referred to in clause (i) of this Section 8(b), nature of
any Suspension Event.
(c) Each Holder of Registrable Shares whose Registrable Shares
are covered by a Registration Statement filed pursuant to Section 3 agrees, if
requested by the Company in the case of a Company-initiated non-underwritten
offering or if requested by the managing underwriter or underwriters in a
Company-initiated underwritten offering, not to effect any public sale or
distribution of any of the securities of the Company, including a sale pursuant
to Rule 144 or Rule 144A under the Securities Act (except as part of such
Company-initiated registration), during the 15-day period prior to, and during
the 60-day period beginning on, the
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date of commencement of each Company-initiated offering made pursuant to such
Registration Statement, to the extent timely notified in writing by the Company
or the managing underwriters; provided, however, that such 60-day period shall
be extended by the number of days from and including the date of the giving of
any notice pursuant to Section 3(d) or 3(f)(ii) hereof to and including the date
when each seller of Registrable Shares covered by such Registration Statement
shall have received the copies of the supplemented or amended Prospectus
contemplated by Section 3(f)(ii) hereof.
9. Black-Out Period. Each Holder agrees that, following the
effectiveness of any Registration Statement (except an Issuance Registration
Statement) relating to Registrable Shares of such Holder, such Holder will not
effect any sales of the Registrable Shares pursuant to the Registration
Statement or any filings with any state securities commissions at any time after
such Holder has received notice from the Company to suspend sales as a result of
the occurrence or existence of any Suspension Event or so that the Company may
correct or update the Registration Statement or such filing. The Holder may
recommence effecting sales of the Shares pursuant to the Registration Statement
or such filings following further notice to such effect from the Company, which
notice shall be given by the Company not later than five (5) business days after
the conclusion of any such Suspension Event.
10. Additional Shares. The Company, at its option, may register, under
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of Common Stock
of the Company or any shares of Common Stock of the Company owned by any other
stockholder(s) of the Company.
11. Contribution. If the indemnification provided for in Sections 6 and
7 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Indemnitee, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Indemnitee, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
party to contribute under this Section 11 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Section 6 or 7 hereof had been available
under the circumstances.
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The Company and each of the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 11 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph.
Notwithstanding the provisions of this Section 11, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of shares exceeds the amount of any damages that the
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
12. No Other Obligation to Register. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
13. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified, or supplemented or waived without the prior written consent
of the Company and the Holders of in excess of fifty percent (50%) of the
aggregate of all Registrable Shares.
14. Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 3(e) or
Section 7, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Summit Properties Inc.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel
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with a copy to: ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
If to the Holders: c/o Worthing Southeast Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 8 and 9 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
This Agreement may not be assigned by any Holder and any attempted assignment
hereof by any Holder will be void and of no effect and shall terminate all
obligations of the Company hereunder; provided that any Holder may assign its
rights hereunder to any person to whom such Holder may Sell Shares and/or Units
pursuant to Section 2(b) hereof.
16. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland applicable to contracts made
and to be performed wholly within said State.
18. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way
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impaired thereby, it being intended that all of the rights and privileges of the
parties hereof shall be enforceable to the fullest extent permitted by law.
19. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
SUMMIT PROPERTIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Finance
WORTHING INVESTORS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
WORTHING SHILOH INVESTORS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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JOINDER
November 6, 2001
By executing this page in the space provided and in consideration of
the transfer by Worthing Investors, LLC and Worthing Shiloh Investors, LLC to
the undersigned of a total of 14,468 common units of limited partnership
interest in Summit Properties Partnership, L.P., the undersigned hereby (i)
agrees that he is a "Holder" as defined in the Registration Rights and Lock-Up
Agreement dated as of August 1, 2000 (the "Registration Rights Agreement"), a
copy of which is attached hereto, (ii) agrees that he is a party to the
Registration Rights Agreement and (iii) adopts, accepts, ratifies, confirms and
agrees to be bound by all of the terms and conditions of the Registration Rights
Agreement. The address to which notices may be sent to the undersigned is as
follows:
--------------------------------
--------------------------------
--------------------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Agreed and Accepted by:
Summit Properties Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and General Counsel
15
JOINDER
November 6, 2001
By executing this page in the space provided and in consideration of
the transfer by Worthing Investors, LLC and Worthing Shiloh Investors, LLC to
the undersigned of a total of 72,341 common units of limited partnership
interest in Summit Properties Partnership, L.P., the undersigned hereby (i)
agrees that he is a "Holder" as defined in the Registration Rights and Lock-Up
Agreement dated as of August 1,2000 (the "Registration Rights Agreement"), a
copy of which is attached hereto, (ii) agrees that he is a party to the
Registration Rights Agreement and (iii) adopts, accepts, ratifies, confirms and
agrees to be bound by all of the terms and conditions of the Registration Rights
Agreement. The address to which notices may be sent to the undersigned is as
follows:
--------------------------------
--------------------------------
--------------------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Agreed and Accepted by:
Summit Properties Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and General Counsel
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JOINDER
November 6, 2001
By executing this page in the space provided and in consideration of
the transfer by Worthing Investors, LLC and Worthing Shiloh Investors, LLC to
the undersigned of a total of 9,646 common units of limited partnership
interest in Summit Properties Partnership, L.P., the undersigned hereby (i)
agrees that he is a "Holder" as defined in the Registration Rights and Lock-Up
Agreement dated as of August 1, 2000 (the "Registration Rights Agreement"), a
copy of which is attached hereto, (ii) agrees that he is a party to the
Registration Rights Agreement and (iii) adopts, accepts, ratifies, confirms and
agrees to be bound by all of the terms and conditions of the Registration Rights
Agreement. The address to which notices may be sent to the undersigned is as
follows:
--------------------------------
--------------------------------
--------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Agreed and Accepted by:
Summit Properties Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and General Counsel
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