EXHIBIT 10-11
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is
made and entered into as of September 27TH, 1999 by and between American Real
Estate Investment Corporation, a Maryland corporation (the "COMPANY"), and
the holders of securities listed on SCHEDULE A attached hereto (including
their respective successors, assigns and transferees herein referred to
individually as a "HOLDER" and collectively as the "HOLDERS").
WHEREAS, on the date hereof, pursuant to the Subscription
Agreement (the "SUBSCRIPTION AGREEMENT") made as of September 27, 1999 by and
among each of those Persons set forth in Exhibit A attached thereto, and the
Company, each Holder is receiving such number of shares of Series C
Convertible Preferred Stock, par value $.001 per share (the "PREFERRED
STOCK"), of the Company, which are convertible into shares of common stock,
par value $.001 per share (the "COMMON STOCK"), as set forth opposite such
Holder's name on SCHEDULE A attached hereto (the shares of Common Stock
issued upon conversion of the Preferred Stock are collectively referred to as
the "REGISTRABLE SECURITIES;" PROVIDED, HOWEVER, that any such securities
shall cease to be Registrable Securities when (i) a Shelf Registration
Statement (as defined below) covering such securities has been declared
effective and such Registrable Securities have been disposed of by the Holder
thereof pursuant to such effective Shelf Registration Statement or any other
effective registration statement, (ii) such securities are transferred by the
Holder thereof to any person other than a Holder pursuant to Rule 144 (or any
successor rule or similar provision then in effect, but not Rule 144A) under
the Securities Act (as defined below), including a sale pursuant to the
provisions of Rule 144(k), (iii) such securities shall have ceased to be
outstanding or (iv) such securities are eligible for sale pursuant to Rule
144 under the Securities Act and could be sold in one transaction in
accordance with the volume limitations contained in Rule 144(e)(1)(i) under
the Securities Act).
WHEREAS, in connection therewith, the Company has agreed to
grant to Holders the Registration Rights (as defined in Section 1 hereof);
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, hereby agree as follows:
SECTION 1. REGISTRATION RIGHTS
Each Holder shall be entitled to offer for sale from time
to time pursuant to a Shelf Registration Statement (as defined below) the
Registrable Securities, subject to the terms and conditions set forth herein
(the "Registration Rights").
1.1 REGISTRATION RIGHTS.
(a) REGISTRATION PROCEDURE. The Company will cause to
be filed with the Securities and Exchange Commission (the "SEC") within three
(3) months of the date of this Agreement a shelf registration statement and
related prospectus, including any preliminary prospectus and documents
incorporated by reference (the "Shelf Registration Statement") that complies
as to form in all material respects with applicable SEC rules providing for
the sale by each of the Holders of such Holder's Registrable Securities, and
agrees (subject to Section 1.2 hereof) to use its commercially reasonable
best efforts to cause such Shelf Registration Statement to be declared
effective by the SEC as soon as
practicable thereafter; PROVIDED, HOWEVER, that, prior to filing a Shelf
Registration Statement or any amendments or supplements thereto, the Company
shall furnish to the Holders of the Registrable Securities covered by such
Shelf Registration Statement, Holders' counsel and the managing underwriters,
if any, draft copies of all such documents proposed to be filed, and shall,
prior to filing such documents, review any comments which are submitted by
any Holder or its counsel within five days after delivery of such documents
to such Holder by the Company; PROVIDED, FURTHER, that, except to the extent
such comments relate to specific disclosure regarding such Holder or its
proposed method of disposition of the Registrable Securities, the Company
shall not be required to incorporate any such comments into documents.
(b) AMENDMENTS AND SUPPLEMENTS. The Company shall (i)
prepare and file with the SEC such amendments to such Shelf Registration
statement as may be necessary to keep such Shelf Registration Statement
effective during the Target Effective Period; (ii) cause the Prospectus to be
amended or supplemented as required and to be filed as required by Rule 424
or any similar rule that may be adopted under the Securities Act of 1933, as
amended (the "Securities Act"), (iii) respond as promptly as practicable to
any comments received from the SEC with respect to the Shelf Registration
Statement or any amendment thereto; and (iv) comply with the provisions of
the Securities Act with respect to the disposition of all securities covered
by such Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the Holder covered
thereby. Each Holder agrees to provide in a timely manner information
regarding the proposed distribution by such Holder of the Registrable
Securities and such other information reasonably requested by the Company in
connection with the preparation of and for inclusion in the Shelf
Registration Statement. The Company agrees (subject to Section 1.2 hereof) to
use its commercially reasonable best efforts to keep the Shelf Registration
Statement effective and free of material misstatements or omissions
(including the preparation and filing of any amendments and supplements
necessary for that purpose) until the earlier of (i) the first date on which
all Holders have consummated the sale of all of such Holders' Registrable
Securities registered under the Shelf Registration Statement or (ii) the date
on which all of the Registrable Securities are eligible for sale pursuant to
Rule 144(k) (or any successor provision) or in a single transaction pursuant
to Rule 144(e) (or any successor provision) under the Securities Act (the
"Target Effective Period"). The Company agrees to provide, without charge, to
each Holder a reasonable number of copies of the final Shelf Registration
Statement and the related prospectus (including any preliminary prospectus)
and any amendments or supplements thereto. The Company further agrees that it
will use commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement at the
earliest possible moment.
(c) OFFERS AND SALES. All offers and sales by each
Holder under the Shelf Registration Statement referred to in this Section
1.1, if any, shall be completed within the period during which the Shelf
Registration Statement is required to remain effective pursuant to Section
1.1(a), and, upon expiration of such period, no Holder will offer or sell any
Registrable Securities under the Shelf Registration Statement. If directed by
the Company, each Holder will return all undistributed copies of the
Prospectus in its possession upon the expiration of such period. Each Holder
shall promptly, but in any event no later than two (2) business days after a
sale by such Holder of Registrable Securities, notify the Company of any sale
or other transfer by such Holder of Registrable Securities and include in
such notice the number of Registrable Securities sold or transferred by such
Holder.
(d) LIMITATIONS ON UNDERWRITERS. Each Holder agrees
not to make any offers or sales through any underwriter until the earlier to
occur of (i) the consummation by the Company of a Qualifying Offering (as
defined below) or (ii) the second anniversary of the date hereof. For the
purposes of this Agreement, a "QUALIFYING OFFERING" shall mean the sale of
shares of Common Stock in an underwritten public offering (in which no person
acquires more than 10% of the shares of Common Stock
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to be sold) at a price of at least $16.50 per share which results in net
proceeds to the Company of at least $150 million.
1.2 SUSPENSION OF OFFERING.
(a) If the Company determines in its good faith
judgment that the filing of the Shelf Registration Statement under SECTION
1.1 hereof or the use of any prospectus would materially impede, delay or
interfere with any pending material financing, acquisition or corporate
reorganization or other material corporate development involving the Company
or any of its subsidiaries, or require the disclosure of important
information which the Company has a material business purpose for preserving
as confidential or the disclosure of which would materially impede the
Company's ability to consummate a significant transaction, upon written
notice of such determination by the Company, the rights of each Holder to
offer, sell or distribute any Registrable Securities pursuant to the Shelf
Registration Statement or to require the Company to take action with respect
to the registration or sale of any Registrable Securities pursuant to the
Shelf Registration Statement (including any action contemplated by SECTION
1.1 hereof) will be suspended until the date upon which the Company notifies
the Holders in writing that suspension of such rights for the grounds set
forth in this SECTION 1.2(a) is no longer necessary, but, in any event, no
such period shall extend for longer than 45 days; PROVIDED the Company may
deliver only two such notices in any twelve month period.
(b) In the case of the registration of any
underwritten public offering proposed by the Company (other than any
registration by the Company on Form S-3 or S-8, as the case may be, or a
successor or substantially similar form, of (A) an employee stock option,
stock purchase or compensation plan or of securities issued or issuable
pursuant to any such plan or (B) a dividend reinvestment plan), each Holder
agrees, if requested in writing by the managing underwriter or underwriters
administering such offering, not to effect any underwritten offering for the
resale of Registrable Securities (or any option or right to acquire
Registrable Securities) during the period commencing on the 7th day prior to
the expected effective date of the Shelf Registration Statement covering such
underwritten public offering or the date on which the proposed offering is
expected to commence (which date shall be stated in such notice) and ending
on the date specified by such managing underwriter in such written request to
such Holder, which date shall not be later than 90 days after such expected
date of effectiveness or the commencement of the offering, as the case may be.
1.3 EXPENSES. The Company shall pay all expenses incident to
the performance by it of its registration obligations under this Section 1,
including (i) all stock exchange, SEC and state securities registration,
listing and filing fees, (ii) all expenses incurred in connection with the
preparation, printing and distributing of the Shelf Registration Statement
and prospectus (including all expenses incurred in connection with the
delivery to any Holder of such number of copies of any prospectus as such
Holder may reasonably request), and (iii) fees and disbursements of counsel
for the Company and of the independent public accountants of the Company.
Each Holder shall be responsible for the payment of any underwriting fees (to
the extent permitted by Section 1.1(c), brokerage and sales commissions, fees
and disbursements of such Holder's counsel, and any transfer taxes relating
to the sale or disposition of the Registrable Securities by such Holder.
1.4 QUALIFICATION. The Company agrees, if necessary, to use its
commercially reasonable best efforts to register or qualify for offer and
sale the Registrable Securities by the time the Shelf Registration Statement
is declared effective by the SEC under all applicable state securities or
"blue sky" laws of the 50 states of the United States or obtain appropriate
exemptions therefrom, to keep each such registration or qualification
effective during the period the Shelf Registration Statement is required to
be kept effective, and to do any and all other acts and things which may be
reasonably necessary or advisable to enable each Holder to consummate the
disposition in each such jurisdiction of the
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Registrable Securities owned by such Holder; PROVIDED, HOWEVER, that the
Company shall not be required to (x) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where
it would not otherwise be required to qualify but for this Section 1.4, (y)
subject itself to taxation in any such jurisdiction, or (z) submit to the
general service of process in any such jurisdiction.
1.5 NOTICES TO HOLDERS. Subject to Section 1.1(a) hereof,
during the period that the Company is required to keep the Shelf Registration
Statement effective, the Company will advise the Holders within a reasonable
time (i) when the prospectus or any prospectus supplement or post-effective
amendment thereto has been filed, and when the same has become effective,
(ii) of any request by the SEC for any amendments to, or issuance by the SEC
of any stop order with respect to the Shelf Registration Statement or any
prospectus or amendment thereto, (iii) of the issuance by any state
securities commission or other regulatory authority of any order suspending
the registration or qualification or exemption from registration or
qualification of any proceedings for that purpose or (iv) that an amendment
or supplement to the most recent Prospectus or prospectus supplement, as the
case may be, is necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
1.6 LISTING. The Company agrees to use its reasonable efforts
to cause all Registrable Securities to be listed on any securities exchange
on which similar securities issued by the Company are listed.
1.7 INCLUSION OF INFORMATION. The Company shall, if reasonably
requested by Holders' counsel or any Holder, incorporate as promptly as
practicable in a prospectus supplement or post-effective amendment such
information as such Holder or Holders' counsel requests to be included
therein, including, without limitation, with respect to the Registrable
Securities being sold by such Holder to any underwriter or underwriters, the
purchase price being paid therefor by such underwriter or underwriters and
any other terms of any underwritten offering of the Registrable Securities to
be sold in such offering, and the Company shall promptly make all required
filings of such prospectus supplement or post-effective amendment.
1.8 TIMELY PREPARATION AND DELIVERY OF CERTIFICATES. The
Company shall cooperate with the Holders to facilitate the timely preparation
and delivery of certificates (which shall not bear any restrictive legends
unless required under applicable law) representing Registrable Securities
sold under a Shelf Registration Statement to the purchasers thereof, and
enable such Registrable Securities to be in such denominations and registered
in such names as the managing underwriter or underwriters, if any, or such
Holders may request and keep available and make available to the Company's
transfer agent prior to the effectiveness of such Shelf Registration
Statement a supply of such certificates.
1.9 CUSTOMARY AGREEMENTS. The Company shall enter into such
customary agreements (including, if applicable, an underwriting agreement in
customary form) and take such other actions as the Holders or the
underwriters retained by the Holders participating in an underwritten public
offering, if any, may reasonably request in order to expedite or facilitate
the disposition of Registrable Securities; provided, however, that such
underwriters are reasonably acceptable to the Company. (The Holders may, at
their option, require that any or all of the representations, warranties and
covenants of the Company to or for the benefit of any underwriters also be
made to and for the benefit of the Holders.)
1.10 OPINION LETTERS; COMFORT LETTERS. The Company shall furnish
to each Holder of Registrable Securities included in such offering and to
each underwriter, if any, if requested by such Holder or underwriter, a
signed counterpart, addressed to such Holder or underwriter, of (i) an
opinion or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company's
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independent public accountants, each in customary form and covering matters
of the type customarily covered by opinions or comfort letters, as the case
may be.
1.11 TIMELY FILINGS. The Company shall, during the period
when the prospectus is required to be delivered under the Securities Act,
file in a timely fashion all documents required to be filed with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act.
SECTION 2. INDEMNIFICATION
2.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Holder, its partners, officers, directors,
trustees, stockholders, employees, agents and investment advisers, and each
person, if any, who controls any Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), together with the partners, officers,
directors, trustees, stockholders, employees, agents and investment advisors
of such controlling person as follows:
(a) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Shelf Registration Statement (or any amendment thereto) pursuant to which the
Registrable Securities were registered under the Securities Act, including
all documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of or
based upon any untrue statement or alleged untrue statement of a material
fact contained in any prospectus (or any amendment or supplement thereto),
including all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(b) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of the Company, which consent shall not be unreasonably
withheld; and
(c) against any and all expense whatsoever, as
incurred (including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, in each case whether or not a party, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
subparagraph (a) or (b) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this Section
2.1 does not apply to any Holder with respect to any loss, liability,
claim, damage or expense to the extent arising out of (i) any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder expressly for use in the
Shelf Registration Statement (or any amendment thereto) or the related
prospectus (or any amendment or supplement thereto), or (ii) such
Holder's failure to deliver an amended or supplemental Prospectus
(provided such Holder was notified in writing pursuant to Section 1.5,
or otherwise, of the need for an amended or supplemental Prospectus) if
such loss, liability, claim, damage or expense would not have arisen had
such delivery occurred.
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In connection with an underwritten offering, the Company will indemnify the
underwriters thereof, their officers and directors and each Person who
controls such underwriters (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders except with
respect to (i) information provided by the underwriter specifically for
inclusion therein or (ii) such underwriter's failure to deliver an amended or
supplemental Prospectus (provided such underwriter was notified in writing
pursuant to Section 1.5, or otherwise, of the need for an amended or
supplemental Prospectus) if such loss, liability, claim, damage or expense
would not have arisen had such delivery occurred.
2.2 INDEMNIFICATION BY HOLDER. Each Holder (on a several and
not joint basis) agrees to indemnify and hold harmless the Company, and each
of its directors and officers (including each director and officer of the
Company who signed a Shelf Registration Statement), and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, as follows:
(a) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Shelf Registration Statement (or any amendment thereto) pursuant to which the
Registrable Securities were registered under the Securities Act, including
all documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of or
based upon any untrue statement or alleged untrue statement of a material
fact contained in any prospectus (or any amendment or supplement thereto),
including all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(b) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of Holder, which consent shall not be unreasonably withheld;
and
(c) against any and all expense whatsoever, as
incurred (including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, in each case whether or not a party, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
subparagraph (a) or (b) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this Section
2.2 shall only apply with respect to any loss, liability, claim, damage
or expense to the extent arising out of (i) any untrue statement or
omission or alleged untrue statement or omission made in reliance upon
and in conformity with written information furnished to the Company by
or on behalf of such Holder expressly for use in the Shelf Registration
Statement (or any amendment thereto) or the related prospectus (or any
amendment or supplement thereto), or (ii) such Holder's failure to
deliver an amended or supplemental prospectus (provided such Holder was
notified in writing pursuant to Section 1.5, or otherwise, of the need
for an amended or supplemental Prospectus) if such loss, liability,
claim, damage or expense would not have arisen had such delivery
occurred. Notwithstanding the provisions of this Section 2.2, no Holder
shall be required to indemnify the Company, its officers, directors or
control persons with respect to any amount in excess of the
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amount of the total proceeds to such Holder from sales of the
Registrable Securities of such Holder under the Shelf Registration
Statement (after deducting the amounts already paid to the Company by
such Holder or any person, if any, who controls such Holder pursuant
to this Section 2.2), and no Holder shall be liable under this
Section 2.2 for any statements or omissions of any other Holder.
2.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. The indemnified
party shall give reasonably prompt notice to the indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify the indemnifying party (i)
shall not relieve it from any liability which it may have under the indemnity
agreement provided in Section 2.1 or 2.2 above, unless and to the extent it
did not otherwise learn of such action and the lack of notice by the
indemnified party results in the forfeiture by the indemnifying party of
substantial rights or defenses, and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to the indemnified party other than
the indemnification obligation provided under Section 2.1 or 2.2 above. If
the indemnifying party so elects within a reasonable time after receipt of
such notice, the indemnifying party may assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by
the indemnifying party and approved by the indemnified party, which approval
shall not be unreasonably withheld; PROVIDED, HOWEVER, that the indemnifying
party will not settle any such action or proceeding without the written
consent of the indemnified party unless, as a condition to such settlement,
the indemnifying party secures the unconditional release of the indemnified
party; and PROVIDED FURTHER, that if the indemnified party reasonably
determines that a conflict of interest exists where it is advisable for the
indemnified party to be represented by separate counsel or that, upon advice
of counsel, there may be legal defenses available to it which are different
from or in addition to those available to the indemnifying party, then the
indemnifying party shall not be entitled to assume such defense and the
indemnified party shall be entitled to separate counsel at the indemnifying
party's expense. If the indemnifying party is not entitled to assume the
defense of such action or proceeding as a result of the proviso to the
preceding sentence, the indemnifying party's counsel shall be entitled to
conduct the indemnifying party's defense and counsel for the indemnified
party shall be entitled to conduct the defense of the indemnified party, it
being understood that both such counsel will cooperate with each other to
conduct the defense of such action or proceeding as efficiently as possible.
If the indemnifying party (i) is not so entitled to assume the defense of
such action, (ii) does not assume such defense, after having received the
notice referred to in the first sentence of this paragraph, or (iii) fails to
employ counsel that is reasonably satisfactory to the indemnified party,
after having received the notice referred to in the first sentence of this
paragraph, the indemnifying party will pay the reasonable fees and expenses
of counsel for the indemnified party. In such event, however, the
indemnifying party will not be liable for any settlement effected without the
written consent of the indemnifying party, which consent shall not be
unreasonably withheld. If an indemnifying party is entitled to assume, and
assumes, the defense of such action or proceeding in accordance with this
paragraph, the indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in
connection with such action or proceeding.
2.4 CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in this Section 2 is for any reason held to be unenforceable by the
indemnified party although applicable in accordance with its terms, the
Company and the applicable Holder shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company and such Holder, (i) in such
proportion as is appropriate to reflect the relative fault of the Company on
the one hand and such Holder on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault of but also the relative
benefits to the Company on the one hand and such Holder on the other hand,
from the
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purchase and sale of the Registrable Securities, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits to the indemnifying party and
indemnified party shall be determined by reference to, among other things,
the total proceeds received by the indemnifying party and indemnified party
in connection with the offering to which such losses, claims, damages,
liabilities or expenses relate. The relative fault of the indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether the action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact, has been made by, or relates to information supplied by, the
indemnifying party or the indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action. The obligations of each Holder under this Section 2.4
are several and not joint.
The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 2.4 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 paragraph. Notwithstanding the provisions of this Section 2.4, no
Holder shall be required to contribute any amount in excess of the amount of
the total proceeds to that Holder from sales of the Registrable Securities of
such Holder under the Shelf Registration Statement.
Notwithstanding the foregoing, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section
2.4, each person, if any, who controls any Holder within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution
as such Holder, and each director of the Company, each officer of the Company
who signed a Shelf Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as the Company.
SECTION 3. RULE 144 COMPLIANCE
The Company covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act, and
the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, it will, upon the request of
any Holder, make publicly available other information so long as necessary to
permit sales of the Registrable Securities under Rule 144 under the
Securities Act), and it will take such further action as any Holder may
request, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
successor rule or similar provision 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.
SECTION 4. RULE 144A COMPLIANCE
The Company covenants that it will file all reports
required to be filed by it under the Securities Act and the Exchange Act, and
the rules and regulations adopted by the Commission thereunder (or if the
Company is not required to file such reports, it will, upon the request of
any Holder, make available other information so long as necessary to permit
sales of the Registrable Securities pursuant to Rule 144A under the
Securities Act), and it will take such further action as any Holder may
request, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule
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144A, as such rule may be amended from time to time, or (b) any successor
rule or similar provision or regulation hereafter adopted by the Commission.
SECTION 5. MISCELLANEOUS
5.1 INTEGRATION; AMENDMENT. This Agreement constitutes the
entire agreement among the parties hereto with respect to the matters set
forth herein and supersedes and renders of no force and effect all prior oral
or written agreements, commitments and understandings among the parties with
respect to the matters set forth herein. Except as otherwise expressly
provided in this Agreement, no amendment, modification or discharge of this
Agreement shall be valid or binding unless set forth in writing and duly
executed by the Company and the applicable Holder.
5.2 WAIVERS. No waiver by a party hereto shall be effective
unless made in a written instrument duly executed by the party against whom
such waiver is sought to be enforced, and only to the extent set forth in
such instrument. Neither the waiver by any of the parties hereto of a breach
or a default under any of the provisions of this Agreement, nor the failure
of any of the parties, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege hereunder
shall thereafter be construed as a waiver of any subsequent breach or default
of a similar nature, or as a waiver of any such provisions, rights or
privileges hereunder.
5.3 ASSIGNMENT. This Agreement shall inure to the benefit of
and be binding on the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders. If any successor, assignee or transferee of
any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding
Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by all of the terms and provisions hereof.
5.4 NOTICES. All notices, payments, demands or other
communications given hereunder shall be deemed to have been duly given and
received (i) upon personal delivery, (ii) in the case of notices sent within,
and for delivery within, the United States, as of the date shown on the
return receipt after mailing by registered or certified mail, return receipt
requested, postage prepaid, or (iii) the second succeeding business day after
deposit with Federal Express or other equivalent air courier delivery
service, unless the notice is held or retained by the customs service, in
which case the date shall be the fifth succeeding business day after such
deposit.
5.5 SPECIFIC PERFORMANCE. The parties hereto acknowledge that
the obligations undertaken by them hereunder are unique and that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to (i) compel specific performance of the obligations, covenants and
agreements of any other party under this Agreement in accordance with the
terms and conditions of this Agreement and (ii) obtain preliminary injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement in any court of the United States or any State
thereof having jurisdiction.
5.6 GOVERNING LAW. This Agreement, the rights and obligations
of the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of New
York, without giving effect to the choice of law rules thereof. The parties
agree that all disputes between any of them arising out of, connected with,
related to, or incidental to the relationship established between them in
connection with this Agreement, and whether arising in law or in equity or
otherwise, shall be resolved by the federal or state courts located in New
York, New York.
9
Nothing herein shall affect the right of any party to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction. In addition, each of the
parties hereto consents to submit to the personal jurisdiction of any federal
or state court located in the state of New York in the event that any dispute
arises out of this Agreement. The parties, for themselves and their
respective affiliates, hereby irrevocably waive all right to a trial by jury
in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to the actions of the parties or their
respective affiliates pursuant to this Agreement in the negotiation,
administration, performance or enforcement thereof.
5.7 HEADINGS. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed
to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
5.8 PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the person or entity may require.
5.9 EXECUTION IN COUNTERPARTS. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required. It
shall not be necessary that the signature of or on behalf of each party
appears on each counterpart, but it shall be sufficient that the signature of
or on behalf of each party appears on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement. It shall not
be necessary in any proof of this Agreement to produce or account for more
than a number of counterparts containing the respective signatures of or on
behalf of all of the parties hereto.
5.10 SEVERABILITY. If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend the
limit of validity prescribed by law, then the obligation to be fulfilled
shall be reduced to the limit of such validity; and if any clause or
provision contained in this Agreement operates or would operate to invalidate
this Agreement, in whole or in part, then such clause or provision only shall
be held ineffective, as though not herein contained, and the remainder of
this Agreement shall remain operative and in full force and effect.
10
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first hereinabove set
forth.
COMPANY:
Address: AMERICAN REAL ESTATE INVESTMENT
Plymouth Meeting Executive Campus -------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ CORPORATION
Plymouth Meeting, PA 19462 -----------
By: /s/ ▇▇▇▇▇▇▇ ▇. BUTTE
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Name: ▇▇▇▇▇▇▇ ▇. Butte
Title: Vice President
HOLDER
TEACHERS INSURANCE AND ANNUITY
------------------------------
ASSOCIATION OF AMERICA
----------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director