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Exhibit 10.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-up Agreement (the "Agreement") is
entered into as of December 11, 1995 by and among Summit Properties Inc., a
Maryland corporation (the "Company"), Bissell Ballantyne, LLC, a North Carolina
limited liability company ("Bissell"), which contemporaneously herewith is to
become a partner of Summit Properties Partnership, L.P., a Delaware limited
partnership (the "Partnership"), and its successors and assigns (together with
Bissell, the "Holders," or individually, a "Holder").
WHEREAS, Bissell is to receive contemporaneously herewith units of limited
partnership interest in the Partnership, issued without registration under the
Securities Act of 1933, as amended (the "Securities Act"), in consideration for
its contribution to the Partnership of land pursuant to that certain Contract
for Purchase of Real Estate between the Company and Bissell and others dated as
of October __, 1995 and any amendment thereto (collectively, the "Acquisition
Agreement");
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, it is a condition precedent to the closing of the Acquisition
Agreement that the Company provide Bissell 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.
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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
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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 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.
2. Lock-Up Agreement.
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(a) Each Holder hereby agrees that, except as set forth in Section
2(b) below, for one hundred eighty (180) days from the date hereof (the "Lock-Up
Period"), without the prior written consent of the Company, it will not offer,
sell, contract to sell, hypothecate, pledge, 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 Holder
retains the entire beneficial interest;
(ii) a Holder that is a corporation, partnership,
joint venturer 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 to
his or her estate, executor, administrator or personal
representative or to his or her 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) the 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 of
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1933 and must provide the Company with such representations and other assurances
that the transferee is an accredited investor as the Company deems necessary or
appropriate, and PROVIDED, HOWEVER, in the case of any transfer of Shares or
Units pursuant to clauses (i), (ii), (iv) and (v), the transferring Holder
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 pursuant to 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.
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(a) DEMAND REGISTRATION. Subject to the conditions set forth in this
Agreement, at any time after one hundred eighty (180) days from the date of the
closing of the Acquisition Agreement, 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, 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 a portion
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. If the
Holder chooses to register less than all of the Registrable Shares at one time,
then (i) it must seek to register a minimum of 10,000 Shares (or if such Holder
owns less than 10,000 Registrable Shares, the total number of Registrable Shares
then owned), (ii) no Holder (including the Holder making the request) has made a
request to register any Registrable Shares during the one (1) year period ending
on the date of such request; and (iii) the total number of requests which may be
made by Holders in the aggregate under this Section 3(a) shall not exceed three
(3). 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. The Company agrees to use reasonable efforts to keep the
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 of Common Stock in
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connection with the redemption of Holders' Units, or in the alternative, if the
registration of such original issuance is not practicable, the sale by Holders
of Registrable Shares in the form of the Common Stock to be received in
connection with the redemption of Holders' Units then, 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 or Units are outstanding (without any obligation to do so) the Company
proposes to file a registration statement under the Securities Act in connection
with an 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 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), whether or not for its own account, the Company
shall give prompt written notice of such proposed filing to each Holder. 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, (ii) second, if such Piggyback Registration Statement is being used to
register shares of the Company's Common Stock of holders of registration rights
granted under that certain Registration Rights Agreement dated as of May 16,
1995 among the Company and those other parties listed therein (the
"Xxxxxxxx-related holders") up to the full number of such other shares of Common
Stock requested to be included in such registration by the Xxxxxxxx-related
holders which, in the opinion of such managing underwriter, can be sold without
adversely affecting the price range or probability of
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success of such offering, allocated among the Xxxxxxxx-related holders
requesting registration on a pro rata basis, (iii) third, up to the full number
of shares of Common Stock requested to be included in such registration by
certain stockholders of the Company pursuant to that certain Continuing Investor
Registration Rights Agreement among the Company and the stockholders named
therein dated February 8, 1994, which in the opinion of such managing
underwriter, can be sold without adversely affecting the price range or
probability of success of such offering, allocated among such holders requesting
registration on a pro rata basis; and (iv) fourth, 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 other than
those described in clauses (ii) and (iii), respectively, 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) The Company shall notify each Holder of the effectiveness of any
Registration Statement and shall furnish to each 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.
(d) 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
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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.
(e) The Company shall promptly notify each Holder of, and confirm in
writing, (i) the receipt by the Company of any request by the SEC for amendments
or supplements to any Registration Statement or the Prospectus related thereto
or for additional information, and (ii) 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.
(f) 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 Holder a reasonable number of copies of a supplement to or an amendment of
such Prospectus as may 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
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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.
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 its connection with
such Holder, and any underwriter and any person who controls the underwriter
within the meaning of the Securities Act (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 for use
in connection with the Registration Statement or the Prospectus contained
therein by such Indemnitee or (ii) such Indemnitee's failure to send or
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give a copy of the final prospectus furnished to it by the Company through no
fault of 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 prospectus.
7. COVENANTS AND REPRESENTATIONS OF HOLDER(S). Each Holder hereby
agrees (a) to cooperate with the Company and to furnish to the Company all such
information concerning its plan of distribution and ownership interests with
respect to its Registrable Shares in connection with the preparation of the
Registration Statement and any filings with any state securities commissions as
the Company may reasonably request, (b) to deliver or cause delivery of the
Prospectus contained in the Registration Statement to any purchaser of the
shares covered by the Registration Statement from the Holder and (c) 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 a 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 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 expressly 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 the Registration Statement from the Holder
through no fault of the Company.
The Holders represent and warrant to the Company that (i) the transfer of
Bissell's interest in the land in exchange for Units in the Partnership was
approved by the holders of more than two-thirds (2/3rds) of the voting interests
in Bissell and (ii) that any distribution of such Units to members of Bissell
will be in accordance with the provisions of the operating agreement of Bissell.
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8. Suspension of Registration Requirement.
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(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 the Registration Statement 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 the 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 use its best efforts
to cause the Registration Statement and any filings with any state securities
commission to become effective or to amend or supplement the 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 sale
of Registrable Shares under the Registration Statement would have a material
adverse effect on 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 events or its effect is
continuing but in no event will that suspension exceed ninety (90) days. 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 nonunderwritten
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 of any class included in
such Registration Statement, 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 date of effectiveness 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
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days from and including the date of the giving of any notice pursuant to Section
3(c) or (f) 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) hereof.
9. BLACK-OUT PERIOD. Following the effectiveness of the Registration
Statement and the filings with any state securities commissions, each Holder
agrees that it will not effect any sales of the Registrable Shares pursuant to
the Registration Statement or any such filings at any time after it 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. Each 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) 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
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indemnification if the indemnification provided for under Sections 6 or 7 hereof
had been available under the circumstances.
The Company and each of the Holders agree that it would not be just and
equitable if contribution 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(d) 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.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.,
Senior Vice President,
Secretary and General Counsel
Telecopy: (000) 000-0000
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with a copy to: Xxxxxxx, Procter & Xxxx
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, P.C.
Telecopy: (000) 000-0000
If to the Holders: As listed on the applicable Holder
Signature Page
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 and
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 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 to 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
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supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SUMMIT PROPERTIES INC.
By: /S/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Sr. Vice President
-------------------------------
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Holder:
Bissell Ballantyne, LLC
By: /s/ X.X. Xxxxxxx
-------------------------------------
Name: X.X. Xxxxxxx, President
--------------------------------
Title: Authorized Member
Address for Notice:
------------------
Bissell Ballantyne, LLC
Attn: X.X. Xxxxxxx
-----------------------------------
Phone Number:
------------
(000) 000-0000
----------------------------------------
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S U M M I T
- - - - - -
PROPERTIES
December 12, 1995
Bissell Ballantyne, LLC
x/x X. X. Xxxxxx, XXX, Xxxxxxx
Perry Xxxxxxx Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
This letter is being written in connection with the Registration Rights
and Lock-Up Agreement being entered into of even date herewith (the "Agreement")
between Summit Properties Inc. ("Summit") and Bissell Ballantyne, LLC
("Bissell"). This letter will confirm our understanding that in the event Summit
undertakes to file a so-called "shelf" registration statement for any of its
securities, that it will, upon the request of Bissell, include in such
registration statement any "Registrable Shares" (as that term is defined in the
Agreement) which Bissell owns or which it may receive as a result of the
redemption by Summit of Bissell's partnership units in Summit Properties
Partnership, L.P. (the "Partnership") unless (y) such shelf registration
involves an offering described in clauses (i) through (v) of the first sentence
of Section 3(b) of the Agreement or (z) Summit is advised by its underwriters or
its legal counsel that the inclusion of such Registrable Shares would (A) result
in material marketing problems with respect to the other securities Summit
proposes to include therein, or (B) raise material legal concerns (including
concerns which would result in significant additional disclosure requirements, a
materially higher level of review by the Securities and Exchange Commission or
state securities regulators or significant additional legal or accounting
expenses in connection with the preparation of such registration statement)
which might have a material and adverse effect on the Summit's ability register
the other securities that it proposes to register under said shelf registration.
Very truly yours,
SUMMIT PROPERTIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President and
General Counsel
