Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of November 18, 1997 by and among BRE Properties, Inc., a
Maryland corporation (the "Company"), BRE Property Investors LLC, a Delaware
limited liability company (the "Operating Company"), and the parties set forth
in Exhibit A attached hereto.
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WHEREAS, the Company, the Operating Company and certain
contributors identified on Schedule A thereto (the "Contributors"), have entered
into a Contribution Agreement, dated as of September 29, 1997 (the "Contribution
Agreement"), pursuant to which, among other things, the Contributors, the
Company and the Operating Company have agreed to combine their properties and
related assets;
WHEREAS, pursuant to the Contribution Agreement, the Company
has agreed to issue shares of common stock of the Company (the "Company Shares")
to certain of the Contributors, Contributing Partners and Distributees (as such
terms are defined in the Contribution Agreement) (the Contributors, Contributing
Partners and Distributees being referred to herein collectively as the
"Investors"), and the Operating Company has agreed to issue units of membership
interest of the Operating Company (the "Units") to certain of the Investors;
WHEREAS, the Units are convertible, at any time after one year
following issuance, into Company Shares or, at the option of the Company, cash,
as set forth in the Operating Company's Limited Liability Company Agreement (the
"LLC Operating Agreement"); and
WHEREAS, in order to permit the Investors to freely offer and
sell the Company Shares that may be issued upon conversion of Units upon or
after the date hereof and to permit the Investors to freely offer and sell the
Company Shares that they receive pursuant to the Contribution Agreement, the
Company has agreed to provide the Investors with the registration rights
provided herein.
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:
ARTICLE 1. Registration Rights.
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The Investors shall be entitled to registration of their
Registrable Shares under the Securities Act of 1933, as amended (the "Securities
Act"), upon and subject to the terms and conditions set forth herein (the
"Registration Rights"). As used herein, the term "Registrable Shares" means the
Company Shares issued to the Investors pursuant to the Contribution Agreement
and the Company Shares issued to the Investors upon conversion or exchange of
Units, excluding (i) any Company Shares that have been sold or otherwise
disposed of by an
Investor under a Registration Statement (as hereinafter defined) or other
effective registration statement under the Securities Act or pursuant to Rule
144 under the Securities Act, (ii) any Company Shares that are eligible for sale
pursuant to Rule 144(k) under the Securities Act, which are held by any Investor
(or permitted assignee) who is not an affiliate of the Company within the
meaning of Rule 144 (a "Rule 144 Affiliate"), and (iii) any Company Shares held
by any Investor (or permitted assignee) who is a Rule 144 Affiliate if all of
such Company Shares are eligible for sale pursuant to Rule 144 under the
Securities Act and could be sold within a period of three months in accordance
with the volume limitations contained in Rule 144(e)(1).
Section 1.1 Initial Registrations.
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(a) Company Shares Issued Upon Conversion of Units. Within
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six (6) months after the date hereof or at such later date as may be appropriate
under applicable rules or regulations of the Securities and Exchange Commission
(the "SEC") but in all events within eleven (11) months following the date
hereof, the Company shall cause to be filed with the SEC a registration
statement ("Registration Statement") under Rule 415 of the Securities Act and
related prospectus ("Prospectus") that comply in all material respects with
applicable SEC rules providing for registration under the Securities Act of the
offer and sale by the Investors of the total number of Registrable Shares that
the Investors would own if they were to convert all Units owned by them, for
which a sale by such Investors has not been consummated. The Company shall
(subject to Section 1.6 hereof) use its best efforts to cause the Registration
Statement to be declared effective by the SEC as soon as practicable. So long as
any Company Shares issuable upon conversion of Units remain Registrable Shares,
the Company shall (subject to Section 1.6 hereof) use its reasonable efforts to
keep the Registration Statement pursuant to this paragraph effective until the
earlier of (i) such time as Form S-3 (or similar successor form of registration
statement) is not available to the Company for registration of the Registrable
Shares (the "S-3 Expiration Date") or (ii) the last to occur of (a) the tenth
anniversary of the effectiveness thereof or (b) the first date upon which at
least ten percent (10%) of the Units issued to the Investors under the terms of
the Contribution Agreement are no longer outstanding.
(b) Company Shares Issued the Pursuant to the Contribution
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Agreement. The Company shall cause to be filed with the SEC, no later than ten
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(10) Business Days after the date hereof, a Registration Statement under Rule
415 of the Securities Act and related Prospectus that comply in all material
respects with applicable SEC rules providing for registration under the
Securities Act of the offer and sale by the Investors of all Registrable Shares
received by them pursuant to the Contribution Agreement. The Company shall
(subject to Section 1.6 hereof) use its best efforts to cause such Registration
Statement to be declared effective by the SEC as soon as practicable. So long as
any Company Shares received pursuant to the Contribution Agreement remain
Registrable Shares, the Company shall (subject to Section 1.6 hereof) use its
reasonable efforts to keep the Registration Statement pursuant to this paragraph
effective with respect to all, and not less than all, of such Company Shares
(and will not permit the registration of any securities of the Company other
than Registrable Shares under such Registration Statement), until the earlier of
(i) the S-3 Expiration Date or (ii) the second anniversary of the effectiveness
thereof (the "Two Year Expiration Date"); provided, however, that solely with
respect to any Registrable Shares issued pursuant to the Contribution Agreement
to The Prudential Insurance
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Company of America ("Prudential"), the Two Year Expiration Date shall
automatically and without lapse or any action of the parties be extended to and
through the first date upon which counsel for the Company reasonably acceptable
to Prudential advises the Company in writing (a copy of which is delivered to
Prudential) that all Registrable Shares then owned by Prudential may be disposed
of in a single transaction without registration pursuant to Rule 144(e)(1) or
144(k) of the Securities Act.
Section 1.2 Registration Rights if Form S-3 is Not Available. The
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following provisions shall apply with respect to Registrable Securities held by
Investors during the period, if any, beginning on the date of the occurrence of
an S-3 Expiration Date and ending on the date when the Company would no longer
be obligated to maintain the applicable Registration Statement in effect
pursuant to the terms of Section 1.1 but for the occurrence of the S-3
Expiration Date (the "Supplemental Rights Period"). During the Supplemental
Rights Period, the Investors shall have the following rights:
(a) Demand Right. Investors may make a written request for
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registration under the Securities Act of all or part of its or their Registrable
Shares (a "Demand Registration"); provided, however, that (i) the Company shall
not be obligated to effect more than one Demand Registration for Investors other
than Prudential in any twelve month period and with respect to Prudential more
than one Demand Registration in any twelve month period (subject, however, to
Prudential's right to request a second Demand Registration within such twelve
month period with respect to Registrable Securities held by it as provided in
the last sentence of this subsection 1.2(a)), (ii) the number of Registrable
Shares proposed to be sold by the Investors making such written request shall
have an estimated market value at the time of such request (based upon the then
market price of a Company Share) of at least $10,000,000 and (iii) an Investor
shall be entitled to make or join in a maximum of two Demand Registrations.
Subject to the foregoing, the number of Demand Registrations which may be made
during the Supplemental Rights Period pursuant to this Section 1.2(a) shall be
unlimited. The Company shall (subject to Section 1.6 hereof) file any
registration statement required by this paragraph with the SEC within thirty
(30) days of receipt of the requisite Investor request and shall use its
reasonable efforts to cause such registration statement to be declared effective
by the SEC as soon as practicable thereafter. The Company shall (subject to
Section 1.6 hereof) use its reasonable efforts to keep each such registration
statement filed hereunder continuously effective for a period of 90 days, unless
such offering is an underwritten offering and the managing underwriter requires
that the registration statement be kept effective for a longer period of time,
in which event for such longer period up to 120 days (such period, in each case,
to be extended by the number of days, if any, during which Investors were not
permitted to make offers or sales under such registration statement by reason of
Section 1.6). The Company may elect to include in any such registration
statement additional Common Shares to be issued by the Company subject, in the
case of an underwritten secondary Demand Registration, to cutback by the
managing underwriters. A registration shall not constitute a Demand Registration
under this Section 1.2(a) until it has been declared effective. Notwithstanding
the foregoing, Prudential may request a second Demand Registration within a
twelve month period (subject to the $10,000,000 limitation set forth above)
provided that the Company shall not be obligated to file a registration
statement pursuant to any such Demand Registration within six months after the
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effective date of any earlier registration statement filed by the Company so
long as Prudential was given a notice offering it the opportunity to sell its
Registrable Shares under the earlier registration statement and Prudential did
not request that all of its Registrable Shares be included; provided, however,
that this limitation shall not apply if Prudential requested that all or a part
of its Registrable Shares be included in the earlier registration statement but
not all or such part were so included due to no fault of Prudential.
(b) Piggyback Rights. If the Company at any time during the
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Supplemental Rights Period proposes to file a registration statement under the
Securities Act with respect to an offering of Company Shares solely for cash
(other than under a shelf Registration Statement filed pursuant to Section 1.1
hereof or 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) in connection with a rights offering exclusively to
existing holders of Common Shares or an offering solely to employees of the
Company or its subsidiaries or (iii) relating to a transaction pursuant to Rule
145 of the Securities Act) the Company shall give written notice of the proposed
registration to the holders of Registrable Shares not later than the earlier to
occur of (i) the fifth day following receipt by the Company of notice of
exercise of any Demand Registration or (ii) thirty (30) days prior to the filing
thereof. The holders of Registrable Shares shall have the right to request that
all or any part of the Registrable Shares be included in the registration by
giving written notice to the Company within fifteen (15) days after the giving
of the notice by the Company; provided, however, that (A) if the registration
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relates to an underwritten primary offering on behalf of the Company and the
managing underwriters of the offering determine in good faith that the aggregate
amount of securities of the Company which those holders and the Company propose
to include in the registration statement exceeds the maximum amount of
securities that could practicably be included therein, the Company will include
in the registration, first, the securities which the Company proposes to sell,
second, pro rata, the Registrable Shares of the Investors, and third, pro rata,
the securities of any subsequent holders of other piggyback registration rights,
and (B) if the registration is an underwritten secondary registration on behalf
of any security holders of the Company (including Investors holding Registrable
Shares) and the managing underwriters determine in good faith that the aggregate
amount of securities which the holders of Registrable Shares and such security
holders propose to include in the registration exceeds the maximum amount of
securities that could practicably be included therein, the Company will include
in the registration, first, the securities to be sold for the account of those
holders who demanded the registration, second, pro rata, the Registrable Shares
of those Investors who did not exercise their demand registration rights and
third, pro rata, other securities to be sold for the account of other holders
electing to include securities in the registration. (It is understood, however,
that the underwriters shall have the right to terminate entirely the
participation therein of the holders of Registrable Shares if the underwriters
eliminate entirely the participation in the registration of all the other
holders electing to include (but not being entitled to demand inclusion of)
securities in the registration because it is not practicable to include such
securities in the registration.) If the registration is not an underwritten
registration, then all of the Registrable Shares requested to be included in the
registration shall be included. Registrable Shares proposed to be registered and
sold pursuant to an underwritten offering for the account of the holders of
Registrable Shares shall be sold to prospective underwriters selected by such
holders and approved by the Company and on the
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terms and subject to the conditions of one or more underwriting agreements
negotiated between the Company, the holders of Registrable Shares and any other
holders demanding registration and the prospective underwriters. Registrable
Shares need not be included in any Registration Statement pursuant to this
provision if in the opinion of counsel to the Company reasonably acceptable to
the holders of Registrable Shares (a copy of which opinion is delivered to such
holders) registration under the Securities Act is not required for public
distribution of the Registrable Shares without limitation as to number or
volume.
(c) Company Purchase. Upon receipt by the Company of a
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registration request pursuant to this Section 1.2, the Company may, but is not
obligated to, purchase from any Investor so requesting registration all, but not
less than all, of the Registrable Shares which are the subject of the request at
a price per share equal to the average closing prices of the Common Shares for
the five trading days immediately preceding the date of the registration
request. In the event the Company elects to purchase the Registrable Shares
which are the subject of request, the Company shall notify the Investor within
five business days of the date of receipt of the request by the Company, which
notice shall indicate: (i) that the Company will purchase the Registrable Shares
held by the Investor which are the subject of the request, (ii) the price per
Share, calculated in accordance with the preceding sentence, which the Company
will pay the Investor and (iii) the date upon which the Company shall repurchase
such Shares, which date shall not be later than the tenth business day after
receipt of the request relating to such Shares. If the Company so elects to
purchase the Shares which are the subject of a registration request made
pursuant to this Section 1.2, then upon such purchase the Company shall be
relieved of its obligations under subsections 1.2(a) and (b) with respect to
such Shares or as a result of the registration notice.
Section 1.3 Additional Registration Procedures.
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(a) The Company will provide to Investors a reasonable number
of copies of any final Prospectus and any amendments or supplements thereto.
(b) The Company will use its reasonable efforts to register or
qualify the Registrable Shares under such other securities or blue sky laws of
such jurisdictions as any Investor reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable in connection
with the disposition of the Registrable Shares owned by that Investor; provided
that the Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this subparagraph, (ii) subject itself to taxation in any such jurisdiction,
(iii) consent to general service of process in any such an jurisdiction, or (iv)
qualify Registrable Shares in a given jurisdiction where qualification would
require the Company to register as a broker or dealer in that jurisdiction.
(c) In accordance with Section 7.9 of the Contribution
Agreement, the Company will cause all Registrable Shares to be listed on each
securities exchange on which similar securities issued by the Company are listed
and to be qualified for trading on each system on which similar securities
issued by the Company are from time to time qualified.
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Section 1.4 Cooperation. Each Investor agrees to provide in a timely
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manner information regarding the proposed distribution by that Investor of the
Registrable Shares and all other information reasonably requested by the Company
in connection with preparation of and for inclusion in the Registration
Statement.
Section 1.5 Additional Shares. The parties agree that any Registration
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Statement may register shares that are not Registrable Shares but are Company
Shares held by others, or to be issued to others, subject, however, to the terms
and conditions of this Agreement.
Section 1.6 Suspension of Offering. Notwithstanding the foregoing
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provisions of this Agreement, the Company shall not be required to file a
Registration Statement or to keep the Registration Statement effective if the
negotiation or consummation of a transaction by the Company or its subsidiaries
is pending or an event has occurred, which negotiation, consummation or event
would require additional disclosure by the Company in the Registration Statement
of material information which the Company (in the judgment of its Board of
Directors, President or Chief Executive Officer) has a bona fide business
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purpose for keeping confidential and the nondisclosure of which in the
Registration Statement might cause the Registration Statement to fail to comply
with applicable disclosure requirements; provided, however, that the Company (i)
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will promptly notify the holders of Registrable Shares otherwise entitled to
registration of each such determination and (ii) may not delay, suspend or
withdraw the Registration Statement for such reason more than twice in any
twelve (12)-month period or three times in any twenty-four (24) month period or
for more than sixty (60) days at any one time. Upon receipt of any notice from
the Company of the happening of any event during the period the Registration
Statement is effective which is of a type specified in the preceding sentence or
as a result of which the Registration Statement or related Prospectus contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made (in the case of the
Prospectus) not misleading, Investors agree that they will immediately
discontinue offers and sales of the Registrable Shares under the Registration
Statement until Investors receive copies of a supplemented or amended Prospectus
that corrects the misstatement(s) or omission(s) referred to above and receive
notice that any post-effective amendment has become effective. If so directed by
the Company, Investors will deliver to the Company any copies of the Prospectus
covering the Registrable Shares in their possession at the time of receipt of
such notice.
Section 1.7 Expenses. The Company shall pay all expenses incident to
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the performance by it of its obligations under this Agreement, including (i) all
SEC or stock exchange registration, listing and filing fees, (ii) all expenses
incurred in connection with the preparation, printing and distributing of any
Registration Statement and Prospectus and any amended or supplemental
Prospectus, and (iii) fees and disbursements of counsel for the Company and of
the independent public accountants of the Company (including, without
limitation, comfort letters). Investors shall be responsible for the payment of
any and all other expenses incurred by them in connection with the conversion of
their Units and sale of their Registrable Shares, including, without limitation,
brokerage and sales commissions, underwriting discounts, fees and disbursements
of counsel representing any Investors, and any transfer taxes relating to the
sale or disposition of the Registrable Shares by Investors.
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ARTICLE 2. Indemnification; Contribution.
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Section 2.1 Indemnification by the Company. The Company agrees to
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indemnify and hold harmless each Investor, its officers and directors and each
person, if any, who controls any Investor within the meaning of Section 15 of
the Securities Act as follows:
(a) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto) pursuant to which the Registrable Shares were registered
under the 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 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 shall not be unreasonably withheld; and
(c) subject to the limitations set forth in Section 2.3,
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
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not apply to any Investor with respect to any loss, liability, claim, damage or
expense that arise out of or are based upon (x) any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by that Investor
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amended or supplement thereto) or (y) that Investor's
failure to deliver an amended or supplemental Prospectus provided by the Company
if such loss, liability, claim, damage or expense would not have arisen had such
delivery occurred.
Section 2.2 Indemnification by Investors. Each Investor agrees to
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indemnify and hold harmless the Company, and each of its directors and officers
(including each director and officer of the Company who signed the Registration
Statement), and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act, to the same extent as the
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indemnity contained in Section 2.1 hereof (except that any settlement described
in Section 2.1(b) shall be effected with the written consent of the Investor,
which shall not be unreasonably withheld), but only insofar as such loss,
liability, claim, damage or expense arises out of or is based upon (x) any
untrue statement or omission, or alleged untrue statement or omission, made in
the Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by that Investor expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or (y) that Investor's failure to deliver an
amended or supplemental Prospectus provided by the Company if the loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
Section 2.3 Conduct of Indemnification Proceedings. Each indemnified
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party shall give reasonably prompt notice to each 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 and
defenses and (ii) shall not, in any event, relieve the indemnifying party from
any obligations to the indemnified party other than the indemnification
obligation provided under Section 2.1 or 2.2 above. If the indemnifying party so
elects within a reasonable time after receipt of notice, the indemnifying party
may assume the defense of the action or proceeding at the indemnifying party's
own expense with counsel chosen by the indemnifying party and approved by the
indemnified party, which approval shall not be unreasonably withheld; provided,
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however, that, if the defendants in any such action or proceeding include both
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the indemnified party and the indemnifying party and the indemnified party
reasonably determines upon advice of counsel that a conflict of interest exists
where it is advisable for the indemnified party to be represented by separate
counsel or that, upon advice of counsel, there may be legal defenses available
to it which are different from or in addition to those available to the
indemnifying party, then the indemnified party shall be entitled to separate
counsel at the indemnifying party's expense, which counsel shall be chosen by
the indemnified party and approved by the indemnifying party, which approval
shall not be unreasonably withheld; provided, however, it is understood that the
indemnifying party shall not be liable for the fees, charges and disbursements
of more than one separate firm. If the indemnifying party does not assume the
defense, after having received the notice referred to in the first sentence of
this paragraph, the indemnifying party will pay the reasonable fees and expenses
of counsel for the indemnified party. In that event, however, the indemnifying
party will not be liable for any settlement effected without the written consent
of the indemnifying party, which shall not be unreasonably withheld. If an
indemnifying party assumes the defense of an action or proceeding in accordance
with this paragraph, the indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection
with that action or proceeding except as set forth in the proviso in the second
sentence of this Section 2.3. Unless and until a final judgment that an
indemnified party is not entitled to the costs of defense under the foregoing
provision, the indemnifying party shall reimburse promptly as they are incurred,
the indemnified party's costs of defense.
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Section 2.4 Contribution. To provide for just and equitable
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contribution in circumstances in which the indemnity agreement provided for in
this Section 2 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Company and each Investor shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by the indemnity agreement incurred by the Company and each
Investor, in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the Investor on the other, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, the indemnifying party or the indemnified party, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent the action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 2.4 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 Article 2, no Investor shall be required
to pay or contribute any amount in excess of the lesser of (i) the total price
at which the Registrable Shares of that Investor were sold to the public or (ii)
the amount of any damages which that Investor would otherwise have been required
to pay by reason of the untrue statement or omission.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 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 director
and officer of an Investor and each person, if any, who controls an Investor
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as that Investor, and each director of the Company, each
officer of the Company who signed the 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.
ARTICLE 3. Miscellaneous.
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Section 3.1 Amendments and Waivers. The provisions of this Agreement
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may not be amended, modified, supplemented or waived without the written consent
of the Company and Investors holding at least two-thirds (2/3) of the then
outstanding Registrable Shares and Units (on an as-converted basis) combined;
provided, however, that the provisions of this Agreement applicable to
Prudential may not be amended, modified, supplemented or waived without the
written consent of Prudential.
Section 3.2 Notices. All notices and other communications provided for
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or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail (return receipt
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requested), telex, telecopier, or any courier guaranteeing overnight delivery,
to each Investor at the address indicated on the records of the Company and the
Operating Company and to the Company at the address indicated below:
One Xxxxxxxxxx Street, Suite 2500
Telesis Tower
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. XxXxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxxx LLP
Thirtieth Floor
Xxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; three (3) business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; or at the time
delivered, if delivered by an air courier guaranteeing overnight delivery.
Section 3.3 Assignment; Successors and Assigns. This Agreement and the
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rights granted hereunder may not be assigned by any Investor without the written
consent of the Company; provided, however, that the rights granted hereunder may
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be assigned by any Investor in connection with a transfer of Registrable Shares
or Units (i) to any affiliate of such Investor, (ii) to any stockholder,
partner, member or other owner of such Investor, or (iii) to any other Investor.
Any permitted assignee of an Investor hereunder shall be entitled to all of the
benefits of this Agreement and subsequent to its obligations.
Section 3.4 Governing Law. The laws of the State of Maryland shall
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govern all questions concerning the relative rights of the Company and its
shareholders and questions concerning the construction, validity and
interpretation of this Agreement, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Maryland or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Maryland.
Section 3.5 Specific Performance. The parties hereto acknowledge that
--------------------
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at
10
law or in equity, shall be entitled to compel specific performance of the
obligation of any other party under this Agreement in accordance with the terms
and conditions of this Agreement in any court of the United States or any State
thereof having jurisdiction.
Section 3.6 Severability. If any provision of this Agreement is held
------------
to be illegal, invalid or unenforceable under any current or future law, and if
the rights or obligations of the parties under this Agreement would not be
materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance therefrom. In lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement, a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible, and the parties hereto
request the court or any arbitrator to whom disputes relating to this Agreement
are submitted to reform the otherwise illegal, invalid or unenforceable
provision in accordance with this Section 3.6.
Section 3.7 Descriptive Headings. The descriptive headings of this
--------------------
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
Section 3.8 Entire Agreement. This Agreement is intended by the
----------------
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
Section 3.9 Counterparts. This Agreement may be executed
------------
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
11
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed on its behalf as of the date first written above.
BRE PROPERTIES, INC.
By /s/ Xxxxx X. XxXxxxxx
---------------------------------
Xxxxx X. XxXxxxxx
Chief Executive Officer
BRE PROPERTY INVESTORS, LLC
By: BRE PROPERTIES, INC.
Its: Managing Member
By /s/ Xxxxx X. XxXxxxxx
---------------------------------
Xxxxx X. XxXxxxxx
Chief Executive Officer
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By /s/ Xxxx X. Xxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxx
Vice President
/s/ V. Xxx Xxxxxxx
------------------------------------
V. Xxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
CROW RESIDENTIAL REALTY
INVESTORS, L.P.
By: Crow Family Inc.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
TCF RESIDENTIAL PARTNERSHIP, LTD.
By: Mill Springs Holdings, Inc.,
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX X. XXXX FAMILY LIMITED
PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Xxxxxxx X. Xxxx
Its: General Partner
/s/ J. Xxxxxx Xxxxxxxxxxx
------------------------------------
J. Xxxxxx Xxxxxxxxxxx
J. XXXXXX XXXXXXXXXXX GRANTOR TRUST
By: /s/ J. Xxxxxx Xxxxxxxxxxx
---------------------------------
J. Xxxxxx Xxxxxxxxxxx, Trustee
/s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxxxx X. Xxxx
------------------------------
Xxxxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxxx X. Xxxxxxxx
CFP RESIDENTIAL, L.P.
By: Crow Family, Inc.
Its:General Partner
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
Vice President
/s/ E. Xxxxx Xxxxxxx
------------------------------
E. Xxxxx Xxxxxxx
/s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx
SALOMON BROTHERS REAL ESTATE
DEVELOPMENT CORP
By: /s/ Xxxx X. Xxxx
----------------------------
Name: Xxxx X. Xxxx
Title: Vice President
CROW-WESTERN N.C. HIGHLANDS LIMITED PARTNERSHIP
By: TCF Residential Partnership, Ltd.
Its: Managing General Partner
By: Mill Spring Holdings, Inc.
Its: General Partner
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
By: Xxxxxxx X. Xxxxx
Its: Vice President
CROW-WESTERN #402 - VALLEJO II LIMITED PARTNERSHIP
By: TCF Residential Partnership, Ltd.
Its: Managing General Partner
By: Mill Spring Holdings, Inc.
Its: General Partner
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
By: Xxxxxxx X. Xxxxx
Its: Vice President
EXHIBIT A
Xxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxx Residential Realty Investors, L.P.
CFP Residential, L.P.
Xxxxxx X. Xxxx
Xxxxxxxx X. Xxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxxx
E. Xxxxx Xxxxxxx
V. Xxx Xxxxxxx
Xxxxxx X. Xxxx
J. Xxxxxx Xxxxxxxxxxx Grantor Trust
Xxxxxxx X. Xxxx Family Limited Partnership
The Northwestern Mutual Life Insurance Company
Xxxxx X. Xxxx
The Prudential Insurance Company of America
RCS Development Corporation
Xxxxxx X. Xxxxxxx
TCF Residential Partnership Ltd.
J. Xxxxxx Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx Real Estate Development Corp
Xxxxx X. Xxxx
Crow-Western N.C. Highlands Limited Partnership
Crow-Western #402 - Vallejo II Limited Partnership
