COMMON STOCK PURCHASE AGREEMENT
2,373,418 SHARES OF CLASS A COMMON STOCK
OF
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
TABLE OF CONTENTS
PAGE
----
I. PURCHASE AND SALE OF STOCK. . . . . . . . . . . . . . . . . . . . . .1
1.1 Issuance and Sale of Common Stock. . . . . . . . . . . . . . .1
1.2 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.. . . . . . . . . . . .2
2.1 Registration of Common Stock.. . . . . . . . . . . . . . . . .2
2.2 Organization, Good Standing and Qualification. . . . . . . . .3
2.3 Capitalization.. . . . . . . . . . . . . . . . . . . . . . . .4
2.4 Authorization; Enforcement.. . . . . . . . . . . . . . . . . .5
2.5 Valid Issuance of Shares.. . . . . . . . . . . . . . . . . . .6
2.6 Compliance with Other Instruments. . . . . . . . . . . . . . .6
2.7 SEC Documents; Financial Statements; Other Information.. . . .6
2.8 Litigation.. . . . . . . . . . . . . . . . . . . . . . . . . .7
2.9 Title to Properties; Leasehold Interests.. . . . . . . . . . .7
2.10 Environmental Compliance.. . . . . . . . . . . . . . . . . . .8
2.11 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.12 Key Employees. . . . . . . . . . . . . . . . . . . . . . . . .9
2.13 Legal Compliance.. . . . . . . . . . . . . . . . . . . . . . .9
2.14 Accountants. . . . . . . . . . . . . . . . . . . . . . . . . .9
2.15 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.16 Operating Partnership. . . . . . . . . . . . . . . . . . . . 10
2.17 Registration Rights. . . . . . . . . . . . . . . . . . . . . 10
2.18 Investment Company.. . . . . . . . . . . . . . . . . . . . . 10
2.19 Cuba.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. . . . . . . . . . . 10
3.1 Authorization; Enforcement.. . . . . . . . . . . . . . . . . 10
3.2 Pro Forma Financial Statements.. . . . . . . . . . . . . . . 11
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING.. . . . . . . . 11
-i-
4.1 Representations and Warranties.. . . . . . . . . . . . . . . 11
4.2 Performance. . . . . . . . . . . . . . . . . . . . . . . . . 12
4.3 Compliance Certificate.. . . . . . . . . . . . . . . . . . . 12
4.4 Opinion of Company Counsel.. . . . . . . . . . . . . . . . . 12
4.5 NYSE Listing.. . . . . . . . . . . . . . . . . . . . . . . . 12
4.6 Opinion as to REIT Status. . . . . . . . . . . . . . . . . . 12
4.7 No Material Change.. . . . . . . . . . . . . . . . . . . . . 12
4.8 No Stop Order. . . . . . . . . . . . . . . . . . . . . . . . 12
4.9 Registration Rights Agreement. . . . . . . . . . . . . . . . 13
V. COVENANTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1 REIT Status. . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2 Stop Orders. . . . . . . . . . . . . . . . . . . . . . . . . 13
5.3 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 13
5.4 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 13
5.5 Future Offerings.. . . . . . . . . . . . . . . . . . . . . . 14
5.6 Action by Board of Directors.. . . . . . . . . . . . . . . . 14
VI. MISCELLANEOUS.. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.1 Survival of Warranties.. . . . . . . . . . . . . . . . . . . 14
6.2 Successors and Assigns.. . . . . . . . . . . . . . . . . . . 14
6.3 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 15
6.4 Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . 15
6.5 Titles and Subtitles.. . . . . . . . . . . . . . . . . . . . 15
6.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.7 No Finders' Fees.. . . . . . . . . . . . . . . . . . . . . . 16
6.8 Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.9 Amendments and Waivers.. . . . . . . . . . . . . . . . . . . 16
6.10 Severability.. . . . . . . . . . . . . . . . . . . . . . . . 17
6.11 Entire Agreement.. . . . . . . . . . . . . . . . . . . . . . 17
-ii-
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
the 26th day of August, 1997 by and between Apartment Investment and Management
Company, a Maryland corporation (the "Company"), and ABKB/LaSalle Securities
Limited Partnership, a registered investment adviser (the "Investor"), as agent
for and for the benefit of the clients listed on Exhibit A hereto (each a
"Pecuniary Owner," and collectively, the "Pecuniary Owners"). Exhibit A shall
be provided by the Investor to the Company at least two (2) business days prior
to the Closing (as defined below).
THE PARTIES HEREBY AGREE AS FOLLOWS:
I. PURCHASE AND SALE OF STOCK.
1.1 ISSUANCE AND SALE OF COMMON STOCK
(a) Subject to the terms and conditions of this Agreement, the
Investor agrees to purchase at the Closing (as defined below), and the
Company agrees to issue and sell to the Investor at the Closing, 2,373,418
shares (the "Shares") of the Company's Class A Common Stock, par value $.01 per
share (the "Common Stock") at a price of $31.60 per share for an aggregate price
(the "Issue Price") of Seventy-Five Million Eight Dollars and Eighty Cents
($75,000,008.80).
1.2 CLOSING.
At the closing of the transactions contemplated by this Agreement (the
"Closing"), the Investor shall deliver to the Company a cashier's or certified
check or wire transfer payable to the Company's order for the Issue Price
against delivery by the Company to the Issuer of certificates representing the
shares of Common Stock to be sold to the Investor hereunder in the names and
denominations set forth in written instructions from the Investor to the Company
provided at least two (2) business days prior to the Closing. The date for
Closing (the "Closing Date") shall be as soon as practicable after September 8,
1997 following written notice from the Company that all of the conditions set
forth in Section 4 of this Agreement have been fulfilled, but in no event later
than September 12, 1997. Either party may terminate this Agreement if closing
does not occur on or before September 12, 1997, so long as there has been no
breach of this Agreement by the party seeking to terminate this Agreement.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the representations and warranties set forth below
to the Investor and the Pecuniary Owners.
2.1 REGISTRATION OF COMMON STOCK.
(a) A registration statement on Form S-3 (File No. 333-26415) with
respect to the Common Stock has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended, and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the Commission
under the Act. The Company has complied with the conditions for the use of Form
S-3. Copies of such registration statement, including any amendments thereto
and the exhibits, financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to the Investor. Such
registration statement, herein referred to as the "Registration Statement," has
been declared effective by the Commission under the Act and no post-effective
amendment to the Registration Statement has been filed as of the date of this
Agreement. The prospectus constituting a part of the Registration Statement and
the prospectus supplement relating to the offering of the Common Stock hereunder
(the "Prospectus Supplement"), including all documents incorporated by reference
therein (the "Incorporated Documents"), as from time to time amended or
supplemented pursuant to the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or otherwise, are collectively referred to herein
as the "Prospectus." Any reference herein to the Registration Statement, any
Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the documents incorporated by reference therein, as of the date of such
Registration Statement, Prospectus or Prospectus Supplement, as the case may be,
and, in the case of any reference herein to any Prospectus or Prospectus
Supplement, also shall be deemed to include any documents incorporated by
reference therein, and any supplements or amendments relating to the Common
Stock being issued and sold pursuant hereto, filed with the Commission after the
date of filing of the Prospectus under Rule 424(b), and prior to the Closing
Date.
(b) The Commission has not issued an order preventing or suspending
the use of any Prospectus relating to the proposed offering of the Common Stock
nor instituted proceedings for that purpose. The Registration Statement and the
Prospectus and any amendments or supplements thereto comply, or will comply, in
all material respects with the requirements of the Act and the Rules and
Regulations. The documents incorporated by reference in the Prospectus, at the
time they were filed or will be filed with the Commission, complied or will
comply at the time of filing, in all material
2
respects to the requirements of the Exchange Act or the Act, as applicable, and
the Rules and Regulations of the Commission thereunder. Neither the
Registration Statement nor any amendment thereto, and neither the Prospectus nor
any supplement thereto, including any documents incorporated by reference
therein, contains or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Except as may be disclosed in or contemplated by the Registration
Statement or the Incorporated Documents, since the respective dates as of which
information is given in the Registration Statement, as it may be amended or
supplemented, there has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the condition,
financial or otherwise, of the Company or the earnings, business affairs,
management or business prospects of the Company, whether or not occurring in the
ordinary course of business, and there has not been any material transaction
entered into by the Company other than transactions in the ordinary course of
business and changes and transactions contemplated by the Registration
Statement, as it may be amended or supplemented. The Company has no material
contingent obligations which are not disclosed in the Registration Statement, as
it may be amended or supplemented.
2.2 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
(a) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Maryland with full corporate
power and authority to own its properties and conduct its business as now being
conducted, and has been duly qualified as a foreign corporation for the conduct
of business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business so as to require
such qualification, and where the failure to be so qualified in any such
jurisdiction would cause a Material Adverse Effect. "Material Adverse Effect"
means any material adverse effect on the operations, assets, business,
properties or financial condition of the Company and its subsidiaries, taken as
a whole.
(b) Each "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X) of the Company (each a "Subsidiary," and collectively,
the "Subsidiaries") is listed on Schedule 2.2 hereto. Each Subsidiary is a
corporation, limited partnership, limited liability company or trust, as the
case may be, duly organized or formed and validly existing and in good standing
under the laws of its jurisdiction of incorporation or formation. Each
Subsidiary has the power and authority (corporate and other) to conduct its
businesses as now being conducted, and each Subsidiary has been duly qualified
as a foreign corporation for the conduct of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or
3
conducts any business, so as to require such qualification, and where the
failure to be so qualified in any such jurisdiction would cause a Material
Adverse Effect. All of the outstanding capital stock, partnership interests,
limited liability company membership interests or trust beneficial interests, as
the case may be, issued by the Subsidiaries or created by agreements to which
the Subsidiaries are parties (i) have been duly and validly issued or created
(and in the case of capital stock are fully paid and nonassessable) and (ii) are
owned or held, directly or indirectly by the Company free and clear of any
security interest, lien, adverse claim, equity or other encumbrance (each of the
foregoing, a "Lien") except for such Liens as (A) are described in the
Registration Statement or the Prospectus or (B) would not have a Material
Adverse Effect.
2.3 CAPITALIZATION.
(a) The authorized capital stock (the "Capital Stock") of the Company
consists of:
(i) PREFERRED STOCK. 9,250,000 shares currently classified as
Preferred Stock, par value $.01 (the "Preferred Stock"), of which no shares are
issued and outstanding.
(ii) CLASS B CUMULATIVE CONVERTIBLE PREFERRED STOCK. 750,000
shares currently classified as Class B Cumulative Convertible Preferred Stock,
par value $.01 (the Class B Preferred Stock"), all of which are issued and
outstanding. All of such shares have been duly authorized and validly issued
and are fully paid and nonassessable.
(iii) CLASS A COMMON STOCK. 150 million shares currently
classified as Class A Common Stock, par value $.01 (the "Class A Common Stock"),
of which 25,553,554 shares are issued and outstanding and 7,088,986 shares are
reserved for issuance pursuant to options and other securities. All of such
outstanding shares have been duly authorized and validly issued and are fully
paid and nonassessable.
(iv) CLASS B COMMON STOCK. 425,000 shares currently classified
as Class B Common Stock, par value $.01 (the "Class B Common Stock"), of which
325,000 shares are issued and outstanding. All of such outstanding shares have
been duly authorized and validly issued and are fully paid and nonassessable.
(b) No shares of Capital Stock are entitled to preemptive rights.
Except as disclosed in the SEC Documents (as defined below) or in this
Agreement, there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of the
Company or any of its subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may
4
become bound to issue additional shares of capital stock of the Company or any
Subsidiary. The Company has furnished to the Investor true and correct copies
of the Company's Articles of Incorporation, as amended as of the date hereof
(the "Charter") and the Company's Bylaws, as in effect on the date hereof (the
"Bylaws").
(c) Except as disclosed in or contemplated by the Registration
Statement or the Incorporated Documents or as otherwise disclosed in writing to
the Investor, the Company has no obligation (contingent or other) to purchase,
redeem or otherwise acquire any of its capital stock or any interest therein or
to pay any dividend or make any other distribution in respect thereof, other
than as required by the Real Estate Investment Trust provisions of the Internal
Revenue Code.
(d) Except as disclosed in or contemplated by the Registration
Statement or the Incorporated Documents or as otherwise disclosed in writing to
the Investor, the Company has no knowledge of any voting agreements, voting
trusts, stockholders' agreements, proxies or other agreements or understandings
that are currently in effect or that are currently contemplated with respect to
the voting of any capital stock of the Company.
(e) All of the outstanding securities of the Company were issued in
compliance with all applicable federal and state securities laws, except for
such noncompliance as would not reasonably be expected to result in a Material
Adverse Effect.
2.4 AUTHORIZATION; ENFORCEMENT.
(a) The Company has the requisite corporate power and authority to
enter into and perform this Agreement and to issue the Shares in accordance with
the terms hereof.
(b) The execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required.
(c) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
5
2.5 VALID ISSUANCE OF SHARES.
The Common Stock which is being purchased by the Investor hereunder,
when issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable and will be issued in compliance with all applicable federal and
state laws and stock exchange requirements.
2.6 COMPLIANCE WITH OTHER INSTRUMENTS.
The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby do not (i) result in a violation of the Charter or Bylaws (other than a
violation of the Ownership Limit (as defined in the Charter) as a result of the
ownership of the Investor or its affiliates of other securities of the Company)
or (ii) conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, or result in a violation of any law, rule, regulation,
order, judgment or decree applicable to the Company, any of its subsidiaries or
by which any property or asset of the Company or any of its subsidiaries is
bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect or materially
impair the Company's ability to perform its obligations under the Agreements).
The Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under the
Agreements or issue and sell the Shares in accordance with the terms hereof,
except such as have been or will be obtained prior to the Closing.
2.7 SEC DOCUMENTS; FINANCIAL STATEMENTS; OTHER INFORMATION.
(a) Since January 1, 1997, the Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the Commission pursuant to the reporting requirements of Section 13 of the
Exchange Act (all of the foregoing filed prior to the date hereof being
hereinafter referred to as the "SEC Documents"). As of their respective dates,
the SEC Documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder applicable to such SEC Documents, and none of the SEC Documents (when
read together with all exhibits included therein and financial statement
schedules thereto and documents (other than exhibits) incorporated by reference)
contained any untrue statement of a material fact or omitted to state a material
6
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances in which they were made, not misleading.
The financial statements, together with related schedules and notes, of the
Company and of the properties acquired by the Company included or incorporated
by reference in the Registration Statement and the Prospectus (and any amendment
or supplement thereto), present fairly (i) the consolidated financial position,
results of operations and changes in financial position of the Company and the
Subsidiaries and (ii) the combined revenues and expenses of the properties
acquired by the Company, as the case may be, on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
or incorporated by reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are accurately presented and prepared
on a basis consistent with such financial statements and the books and records
(i) of the Company and the Subsidiaries and (ii) the properties acquired by the
Company, as the case may be.
(b) Since January 1, 1997, (i) the business of the Company has been
conducted in the ordinary course and (ii) there has been no Material Adverse
Effect on the Company and its subsidiaries taken as a whole, except, in each
case, as disclosed in or contemplated by the Registration Statement or the
Incorporated Documents or as disclosed in writing to the Investor.
2.8 LITIGATION.
There is no action, suit, proceeding, investigation or claim pending
against the Company or, to the knowledge of the Company, threatened against the
Company in law, equity or otherwise before any federal, state, municipal or
local court, administrative agency, commission, board, bureau, instrumentality
or arbitrator which either (a) questions the validity of this Agreement or the
Shares or any action taken or to be taken pursuant hereto or thereto, or (b) may
adversely affect the right, title or interest of the Investor to the Shares or
(c) would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
2.9 TITLE TO PROPERTIES; LEASEHOLD INTERESTS.
(a) Except as set forth in the Registration Statement and Prospectus,
the Company and its subsidiaries have good and marketable title to all property
described in the Registration Statement and Prospectus as owned by them which is
material to the business of the Company and its subsidiaries and (b) any real
property and buildings described in the Registration Statement and Prospectus as
held under lease by the
7
Company and its subsidiaries are held under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the Company
and its subsidiaries, in each case except as described in the Registration
Statement and the Prospectus or as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect. Each lease
or agreement to which the Company is a party under which it is the lessee of any
property, real or personal, is a valid and subsisting agreement without any
material default of the Company thereunder and, to the best of the Company's
knowledge, without any material default thereunder of any other party thereto,
except for such defaults that would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect. No event has occurred and
is continuing which, with due notice or lapse of time or both, would constitute
a default or event of default by the Company under any such lease or agreement
or, to the best of the Company's knowledge, by any party thereto, except for
such defaults that would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
2.10 ENVIRONMENTAL COMPLIANCE.
(a) The Company and each Subsidiary (i) is in compliance with all
applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (the "Environmental Laws"),
(ii) has received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and
(iii) is in compliance with all terms and conditions of any such permit, license
or approval, except, with respect to clauses (i), (ii) and (iii) above, where
such noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals are otherwise disclosed in the Prospectus
or would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties or in connection with
off-site disposal of hazardous substances) that would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
8
2.11 TAXES.
The Company and each of the Subsidiaries have filed all federal and
state tax returns required to be filed and have paid all taxes shown thereon as
due and there is no tax deficiency that has been, or to the knowledge of the
Company, is threatened to be, asserted that could reasonably be expected to have
a Material Adverse Effect.
2.12 KEY EMPLOYEES.
The Company does not have any knowledge as to any intentions of any
key employee or any group of employees currently employed by the Company to
leave the employ of the Company.
2.13 LEGAL COMPLIANCE.
(a) The Company has complied with all applicable laws, rules,
regulations, orders, licenses, judgments, writs, injunctions, decrees or
demands, except to the extent that failure to comply would not reasonably be
expected to have a Material Adverse Effect.
(b) There are no adverse orders, judgments, writs, injunctions,
decrees or demands of any court or administrative body, domestic or foreign, or
of any other governmental agency or instrumentality, domestic or foreign,
outstanding against the Company which would reasonably be expected to result in
a Material Adverse Effect.
2.14 ACCOUNTANTS.
Ernst & Young LLP, who have certified the financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) are independent public
accountants with respect to the Company as required by the Act.
2.15 INSURANCE.
The Company and the Subsidiaries self insure or maintain insurance
with insurers of recognized financial responsibility against losses and risks
and in such amounts as are generally deemed adequate for their respective
businesses and consistent with coverage maintained by similar companies in the
businesses in which they are engaged; and neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew the coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect.
9
2.16 OPERATING PARTNERSHIP.
As of July 31, 1997, the Company indirectly owned an aggregate of
approximately 87% of the partnership interests in AIMCO Properties, L.P., a
Delaware limited partnership (the "Operating Partnership"). Such partnership
interests are free and clear of all Liens. A wholly-owned subsidiary of the
Company is the sole general partner of the Operating Partnership.
2.17 REGISTRATION RIGHTS.
No holder of any security of the Company or the Operating Partnership
has any unwaived right to require registration of shares of Capital Stock or any
other security of the Company or limited partnership units in the Operating
Partnership (the "OP Units") because of the filing of the Registration Statement
or the consummation of the transactions contemplated by this Agreement
2.18 INVESTMENT COMPANY.
The Company and the Subsidiaries are not now, and after the sale of
the Common Stock to be sold hereunder and application of the net proceeds from
such sale as described in the Prospectus Supplement under the caption "Use of
Proceeds," none of them will be, an "investment company" or an "entity
controlled by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
2.19 CUBA.
The Company has complied with all provisions of Florida Statutes
Section 517.075, relating to issuers doing business with Cuba.
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor hereby makes the representations and warranties set forth
below to the Company.
3.1 AUTHORIZATION; ENFORCEMENT.
(a) The Investor has the requisite power and authority to enter into
and perform this Agreement and to consummate the transactions contemplated
hereby.
10
(b) The execution and delivery of this Agreement by the Investor and
the consummation by it of the transactions contemplated hereby have been duly
authorized by the Investor and no further consent or authorization is required.
(c) This Agreement has been duly executed and delivered by the
Investor and constitutes the legal, valid and binding obligation of the Investor
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
3.2 PRO FORMA FINANCIAL STATEMENTS.
The Investor (a) acknowledges that it has received and reviewed copies
of (i) the Company's Current Report on Form 8-K/A, dated August 14, 1997,
containing certain pro forma financial information (the "Pro Formas") and (ii)
the letter from the Staff of the Commission with respect to certain comments on,
among other things, the Pro Formas, (b) has had an opportunity to discuss any
questions it or its advisors may have with respect to the Pro Formas and other
matters with the Company and its accountants and (c) understands that the Pro
Formas are subject to change as a result of the ongoing review thereof by the
Staff of the Commission in connection with its review of the preliminary proxy
material filed by the Company relating to the proposed transaction with NHP
Incorporated.
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING.
The obligations of the Investor at the Closing under subsection 1.1 of this
Agreement are subject to the fulfillment on or before the Closing of each of the
following conditions:
4.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company contained in Section
2 shall be true in all material respects on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the date of such Closing.
11
4.2 PERFORMANCE.
The Company shall have performed and complied in all material respects
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing.
4.3 COMPLIANCE CERTIFICATE.
The Chairman of the Company shall have delivered to the Investor at
the Closing a certificate certifying that the conditions specified in Sections
4.1, 4.2 and 4.10 have been fulfilled.
4.4 OPINION OF COMPANY COUNSEL.
The Investor shall have received on the Closing date the opinion of
the Company's counsel, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, and special
Maryland counsel dated as of the Closing, substantially in the form attached
hereto as Schedule 4.4.
4.5 NYSE Listing.
The shares of Common Stock being purchased hereunder shall have been
approved for listing on the NYSE upon official notice of issuance.
4.6 OPINION AS TO REIT STATUS.
(a) At or before the Closing, the Investor and the Pecuniary Owners
shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Company (or such other counsel as shall be reasonably acceptable to the
Investor and the Pecuniary Owners), an opinion that the Company should be
classified as a "real estate investment trust" under Section 856 of the Internal
Revenue Code of 1986, as amended (after giving effect to the investment
contemplated by this Agreement).
4.7 NO MATERIAL CHANGE.
No event or change of circumstances shall have occurred and be
continuing at the Closing which, in the reasonable opinion of the Investor, is
likely to have a Material Adverse Effect.
4.8 NO STOP ORDER.
No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose
12
shall have been taken or, to the knowledge of the Company, shall be contemplated
by the Commission.
4.9 REGISTRATION RIGHTS AGREEMENT.
The Company and the Investor shall have entered into the Registration
Rights Agreement in the form attached hereto as Exhibit B.
V. COVENANTS.
5.1 REIT STATUS.
The Company will use its best efforts to operate in a manner which
will not cause it to be classified other than as a "real estate investment
trust" under Section 856 of the Internal Revenue Code of 1986, as amended (after
giving effect to the investment contemplated by this Agreement).
5.2 STOP ORDERS.
The Company will promptly advise the Investor in writing of (i) any
request by the Commission for amendment of or a supplement to the registration
Statement or the Prospectus, and (ii) any issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Common Stock for offering or sale in any
jurisdiction or the initiation of any proceeding for such purpose. If at any
time the Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, the Company will use its best efforts to obtain the
withdrawal of such order as soon as possible.
5.3 USE OF PROCEEDS.
The Company will apply the net proceeds received hereunder
substantially in accordance with the description set forth under the caption
"Use of Proceeds" in the Prospectus Supplement.
5.4 CONFIDENTIALITY.
Until the filing by the Company of a current report on Form 8-K with
respect to this Agreement, (a) the parties to this Agreement will not disclose
to any other party any information about this Agreement, the transactions
contemplated hereby, and the parties hereto except as required by law or the
rules of the New York Stock Exchange, or with the prior written consent of the
other party and (b) any public announcement of
13
the commitment of the Investor or the Pecuniary Owners hereunder must be
approved by the Investor.
5.5 FUTURE OFFERINGS.
Until the first anniversary of the Closing date, the Company will give
prior written notice to the Investor of potential underwritten public offerings
of the Capital Stock or any other equity security of the Company (an
"Offering"). The Company will use its reasonable efforts to allow the Investor
to participate in an Offering in order to allow the Investor to maintain its
percentage equity interest in the Company.
5.6 ACTION BY BOARD OF DIRECTORS.
In the event that the beneficial ownership of the Investor or the
Pecuniary Owners exceeds the Ownership Limit (as defined in the Charter) as a
result of the beneficial ownership of shares of Common Stock purchased pursuant
to this Agreement, the Board of Directors of the Company shall adopt a
resolution waiving the application of the Ownership Limit to the Investor and
the Pecuniary Owners to the extent permitted by the Charter.
VI. MISCELLANEOUS.
6.1 SURVIVAL OF WARRANTIES.
The warranties, representations and covenants of the Company and the
Investor contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing (except that the
representations and warranties contained in Sections 2 (other than Sections 2.3
and 2.4) hereof shall survive for a period of three years), and shall in no way
be affected by any investigation of the subject matter thereof made by or on
behalf of the Investor or the Company.
6.2 SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto, including the Pecuniary Owners.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto and the Pecuniary Owners or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement. Notwithstanding the foregoing, the Investor
shall have the right to allocate a portion of the Shares to its affiliate,
LaSalle Advisors Limited Partnership, a registered investment
14
adviser ("LaSalle"), on behalf of certain clients of LaSalle listed on Exhibit A
hereto (the "LaSalle Clients"). References herein to "Investor" and "Pecuniary
Owner" shall be deemed to include LaSalle and the LaSalle Clients, respectively.
6.3 GOVERNING LAW.
This Agreement shall be governed by and construed under the internal
laws of the State of Maryland.
6.4 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6.5 TITLES AND SUBTITLES.
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
6.6 NOTICES.
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given (a)
upon personal delivery to the party to be notified, (b) on the fifth business
day after deposit with the United States Post Office, by registered or certified
mail, postage prepaid, (c) on the next business day after dispatch via
nationally recognized overnight courier or (d) upon confirmation of transmission
by facsimile, all addressed to the party to be notified at the address indicated
for such party on the signature page hereof, or at such other address as such
party may designate by ten (10) days' advance written notice to the other
parties. Notices should be provided in accordance with this Section at the
following addresses:
If to the Investor, to: With a copy to:
ABKB/LaSalle Securities Limited Partnership Piper & Marbury L.L.P.
000 Xxxx Xxxxx Xxxxxx 00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Xx. Attn: Xxxxxxxxx Xxxxx, Esq.
Managing Director
15
If to the Company, to: With a copy to:
Apartment Investment and Skadden, Arps, Slate, Xxxxxxx
Management Company & Xxxx LLP
0000 Xxxxx Xxxxxxxx Xxxxxx, 17th Floor 000 Xxxxx Xxxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000 Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx Attn: Xxxxxx X. Xxxxxx, Xx., Esq.
Chairman of the Board of Directors
6.7 NO FINDERS' FEES.
Except for a financial advisory fee payable by the Company to Xxxxx
Xxxxxx Inc., each party represents that it neither is nor will be obligated for
any finders' fee or commission in connection with this transaction. The
Investor agrees to indemnify and to hold harmless the Company from any liability
for any commission or compensation in the nature of a finder's fee (and the
costs and expenses of defending against such liability or asserted-liability)
for which the Investor or any of its officers, partners, employees, or
representatives is responsible. The Company agrees to indemnify and hold
harmless the Investor from any liability for any commission or compensation in
the nature of a finder's fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
6.8 EXPENSES.
The Company shall pay costs and expenses of the Investor incident to
the performance by the Company of its obligations hereunder and pay the
Investor's reasonable fees and expenses, including but not limited to the fees
and expenses of Piper & Marbury L.L.P., incurred in connection with the
transactions contemplated by this Agreement, up to a maximum of $15,000. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
6.9 AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended, and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Investor. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
securities purchased under this Agreement at the time outstanding, each future
holder of all such securities, and the Company.
16
6.10 SEVERABILITY.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
6.11 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the parties and
no party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth
herein.
[Signatures follow on next page]
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ABKB/LA SALLE SECURITIES APARTMENT INVESTMENT AND
LIMITED PARTNERSHIP MANAGEMENT COMPANY
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
---------------------------- -------------------------------
Xxxxx Xxxxxx Name: Xxxxx Xxxxxxxxx
Managing Director Title: Vice Chairman
18
EXHIBIT A
Pecuniary Owners
PECUNIARY OWNER AMOUNT
[To be supplied by the Investor]
19
EXHIBIT B
Registration Rights Agreement
20
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of August ___, 1997, by and among Apartment Investment and
Management Company, a Maryland corporation (the "COMPANY"), and ABKB/LaSalle
Securities Limited Partnership, a registered investment advisor (the
"INVESTOR"), acting as agent for and on behalf of certain clients (the
"PECUNIARY OWNERS") listed on Exhibit A to the Purchase Agreement (as defined
below).
WITNESSETH:
WHEREAS, pursuant to that certain Common Stock Purchase Agreement of
even date herewith, between the Company and the Investor, as agent for and on
behalf of each of the Pecuniary Owners (the "PURCHASE AGREEMENT"), the Investor
has agreed to purchase up to 2,373,418 shares of Class A Common Stock (the
"COMMON STOCK") of the Company as agent for and on behalf of the Pecuniary
Owners; and
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company
and the Investor have agreed that the Company will grant certain registration
rights to the Investor with respect to the Shares;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
CAPITAL STOCK: As defined in the Purchase Agreement.
CLOSING DATE: The closing date as defined in the Purchase Agreement.
COMMON STOCK: The Class A Common Stock, $.01 par value per share, of
the Company purchased by the Investor for or on behalf of the Pecuniary Owners
pursuant to the Purchase Agreement.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended from
time to time.
21
PERSON: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
PROSPECTUS: The prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
PURCHASE AGREEMENT: As defined in the Recitals to this Agreement.
REGISTRABLE SECURITIES: (a) The Common Stock and (b) any securities
issued or issuable with respect to the Common Stock by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. Any Registrable
Security will cease to be a Registrable Security when (i) a registration
statement covering such Registrable Security has been declared effective by the
SEC and the Registrable Security has been disposed of pursuant to such effective
registration statement, (ii) the Registrable Security is sold under
circumstances in which all of the applicable conditions of Rule l44 (or any
similar provisions then in force) under the Securities Act are met or (iii) the
Registrable Security has been otherwise sold or transferred.
REGISTRATION EXPENSES: See Section 4 hereof.
REGISTRATION STATEMENT: The Registration Statement of the Company that
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
SEC: The Securities and Exchange Commission or any successor entity.
SECURITIES ACT: The Securities Act of 1933, as amended from time to
time.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which Registrable Securities of the Company are sold to an underwriter for
reoffering to the public in a manner requiring registration under the Securities
Act.
2. DEMAND REGISTRATION.
(a) At any time during the two year period following the Closing
Date, the Investor on behalf of one or more Pecuniary Owners holding in the
aggregate not less than (i) 25% of the aggregate Registrable Securities
outstanding or (ii) Registrable Securities having a fair market value of at
least $2 million, whichever is less, may make a written request (the
22
"DEMAND NOTICE") for registration under the Securities Act (a "DEMAND
REGISTRATION") of such Registrable Securities. The Demand Notice will specify
the number of shares of Registrable Securities proposed to be sold and will also
specify the intended method of disposition thereof. Following receipt of a
Demand Notice from the Investor, the Company promptly will file a registration
statement on any appropriate form which will cover the Registrable Securities
that the Company has been so requested to register by the Investor.
(b) Unless the Investor shall consent in writing, no party (including
the Company) other than a Pecuniary Owner shall be permitted to offer securities
under any such Demand Registration. The Company shall not be required to effect
more than one Demand Registration under this Section 2. A registration
requested pursuant to this Section 2 will not be deemed to have been effected
(and it shall not count as the one Demand Registration) unless the Registration
Statement relating thereto has become effective under the Securities Act;
PROVIDED, HOWEVER that if, after such Registration Statement has become
effective, the offering of the Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court, such registration
will be deemed not to have been effected (and it shall not count as the one
Demand Registration).
(c) The offering of Registrable Securities pursuant to the Demand
Registration shall be in the form of an Underwritten Offering.
(d) The Company may delay the filing of a Registration Statement
pursuant to this Section 2 for up to 120 days if (i) the Company determines in
good faith that, due to business interests or pending transactions, it would not
be in Company's best interests to file such Registration Statement at that time.
If the Company delays the filing of a Registration Statement pursuant to this
Section 2(d), the Investor may (i) withdraw its Demand Registration (in which
case such Demand Registration shall not count as the one Demand Registration) or
(ii) proceed with the Demand Registration (in which case such Demand
Registration will count as the one Demand Registration).
3. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Section 2 hereof, the Company will use its
commercially reasonable efforts to effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will use commercially
reasonable efforts to as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, and in any
event within 60 days from the date of request, a Registration Statement relating
to the applicable registration on any appropriate form under the Securities Act,
which forms shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof and shall
include all financial statements of the Company, and use its commercially
reasonable efforts to cause such Registration Statement to become effective;
23
PROVIDED that before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, other than documents incorporated by
reference after the initial filing of the Registration Statement, the Company
will furnish the Investor and the underwriters, copies of all such documents
proposed to be filed, which documents will be subject to the review of the
Investor and the underwriters, and the Company will not file any Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(other than such documents incorporated by reference) to which the Investor or
the underwriters shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period, or such shorter
period which will terminate when all Registrable Securities included in such
Registration Statement have been sold; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the provisions of
all securities included in such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to the
Prospectus; the Company shall not be deemed to have used commercially reasonable
efforts to keep a Registration Statement effective during the applicable period
if it voluntarily takes any action that would result in the Investor not being
able to sell its Registrable Securities during that period unless such action is
required under applicable law; PROVIDED that the foregoing shall not apply to
actions taken by the Company in good faith and for valid business reasons,
including without limitation the acquisition or divestiture of assets, so long
as the Company promptly thereafter complies with the requirements of Section
3(j) hereof, if applicable;
(c) notify the Investor and the managing underwriters, promptly, and
(if requested by any such Person) confirm such advice in writing, (l) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (2) of any request by the SEC for
amendments or supplements to the Registration Statement or the Prospectus or for
additional information, (3) of 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, (4) if at any time the representations and
warranties of the Company contemplated by paragraph (l) below cease to be true
and correct, (5) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (6) of the happening of any event which makes any statement made in
the Registration Statement, the Prospectus or any document incorporated therein
by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus or any document incorporated therein by
reference in order to make the statements therein not misleading;
24
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if reasonably requested by the managing underwriter or
underwriters or by the Investor holding in the aggregate in excess of 50% of the
Registrable Securities covered by the Registration Statement, promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters and the Investor agree should be
included therein relating to the sale of the Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
Underwritten (or best efforts underwritten) Offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(f) furnish to the Investor and each managing underwriter, without
charge, at least one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(g) deliver to the Investor and the underwriters, without charge, as
many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons may reasonably request; the
Company consents to the use of the Prospectus or any amendment or supplement
thereto by the Investor and the underwriters, in connection with the offering
and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the Investor, the underwriters, and their
respective counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions as the Investor or any underwriter reasonably requests in
writing and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Registrable Securities covered by
the Registration Statement, provided, however, that the Company will not be
required to submit to general service of process or taxation in any jurisdiction
in which it is not so subject;
(i) cooperate with the Investor and the managing underwriters, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business days
prior to any sale of Registrable Securities to the underwriters;
25
(j) upon the occurrence of any event contemplated by Section 3(c)(6)
above, prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(k) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
(l) enter into such agreements (including an underwriting agreement)
and take all such other actions in connection therewith in order to expedite or
facilitate the disposition of such Registrable Securities and in connection
therewith, whether or not an underwriting agreement is entered into, (1) make
such representations and warranties to the underwriters, in form, substance and
scope as are customarily made by issuers to underwriters in primary underwritten
offerings; (2) use its reasonable efforts to obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Investor and the managing
underwriters) covering the matters customarily covered in opinions requested in
Underwritten Offerings and such other matters as may be reasonably requested by
the Investor and the underwriters; (3) use its reasonable efforts to obtain
"cold comfort" letters and updates thereof from the Company's independent
certified public accountants addressed to the Investor and the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters by underwriters in connection with
primary Underwritten Offerings; (4) if an underwriting agreement is entered
into, the same shall set forth in full the indemnification provisions and
procedures of Section 5 hereof with respect to all parties to be indemnified
pursuant to said Section; and (5) deliver such documents and certificates as may
be reasonably requested by the managing underwriters, to evidence compliance
with clause (1) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The
above shall be done at each closing under such underwriting or similar agreement
or as and to the extent required thereunder;
(m) make available for inspection by a representative of any
underwriter participating in any disposition pursuant to such registration, and
any attorney or accountant retained by the underwriter, all financial and other
records, pertinent corporate documents and properties of the Company and cause
the Company's officers, trust managers and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such registration; PROVIDED that any records,
information or documents that the Company designates in writing as confidential
shall be kept confidential by such Persons unless disclosure of such records,
information or documents is required by court or administrative order;
26
(n) otherwise use its commercially reasonable efforts to make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering a period of 12 months, beginning within three months
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act; and
(o) cooperate with each underwriter participating in the disposition
of such Registrable Securities and their respective counsel in connection with
any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
The Company may require the Investor and each Pecuniary Owner, as
applicable, to furnish to the Company such information regarding the
distribution of Registrable Securities as the Company may from time to time
reasonably request in writing.
The Investor agrees by acquisition of the Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(j) hereof, the Investor will forthwith discontinue
disposition of Registrable Securities until the Investor's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(j) hereof,
or until it is advised in writing (the "ADVICE") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by the Company, the Investor will deliver to the Company (at the
Company's expense), all copies, other than permanent file copies then in the
Investor's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods regarding the effectiveness of
Registration Statements set forth in Section 2 hereof and Section 3(b) hereof
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 3(c)(6) hereof to the date
when the Investor shall receive copies of the supplemented or amended prospectus
contemplated by Section 3(j) hereof or the Advice.
4. REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation:
all registration and filing fees; fees with respect to filings required to be
made with the NASD; fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities and determination of their eligibility for investment under the laws
of such jurisdictions as the managing underwriters and the Investor may
designate); printing expenses, messenger, telephone and delivery expenses; fees
and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including the
expenses of any comfort letters or costs associated with the delivery by
independent certified public accountants of a comfort letter or comfort letters
requested pursuant to Section 4(l) hereof); securities acts liability insurance,
if the Company so desires; all internal expenses of the Company (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties); the expense of any annual audit; the
fees
27
and expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed; and the fees and expenses of any Person, including
special experts, retained by the Company (all such expenses being herein called
"REGISTRATION EXPENSES") will be borne by the Company regardless of whether the
Registration Statement becomes effective. The Company shall also reimburse the
Investor for the fees and expenses of counsel in accordance with Section 6.8 of
the Purchase Agreement. The Company shall not have any obligation to pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, or any legal fees and expenses of counsel to the
Investor, except as expressly provided herein.
5. INDEMNIFICATION: CONTRIBUTION.
(a) INDEMNIFICATION BY COMPANY. The Company agrees to indemnify and
hold harmless the Investor and each Pecuniary Owner and their respective
partners, officers, directors, employees and agents, and each Person who
controls any such Persons (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) against all losses, claims, damages,
liabilities and expenses arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary 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 not misleading, except insofar as the same are caused by
or contained in any information furnished in writing to the Company by the
Investor or such Pecuniary Owner, as the case may be, expressly for use therein.
The Company will also indemnify underwriters, selling brokers, dealer managers
and similar securities industry professionals participating in the distribution,
their officers and trust managers and each Person who controls such Persons
(within the meaning of 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 Investor and each Pecuniary Owner, if requested.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. The Investor
and each Pecuniary Owner, severally and not jointly, agrees to indemnify and
hold harmless the Company and its trust managers, officers, employees and
agents, and each Person who controls the Company (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue statement of
a material fact or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary prospectus or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by the Investor, as agent for and on behalf
of each Pecuniary Owner, to the Company specifically for inclusion in such
Registration Statement or Prospectus. In no event shall the liability of the
Investor or any Pecuniary Owner hereunder be greater in amount than the dollar
amount of the proceeds received by such Person upon the sale of the Registrable
Securities giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
28
distribution, to the same extent as provided above with respect to information
so furnished in writing by such Persons specifically for inclusion in any
Prospectus or Registration Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; PROVIDED, HOWEVER that any Person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (a) the
indemnifying party has agreed to pay such fees or expenses, (b) the indemnifying
party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such Person or (c) based upon written advice of
counsel to such Person, there shall be one or more defenses available to such
Person that are not available to the indemnifying party or there shall exist
conflicts of interest pursuant to applicable rules of professional conduct
between such Person and the indemnifying party (in which case, if the Person
notifies the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of
such Person), in each of which events the reasonable fees and expenses of such
counsel shall be at the expense of the indemnifying party, provided that in no
event shall the Company be responsible for the fees and expenses of more than
one counsel for all of the indemnified persons. The indemnifying party will not
be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld), but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the indemnifying party shall indemnify and hold harmless the
indemnified parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. No indemnified party will be
required to consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
(d) CONTRIBUTION. If for any reason the indemnification provided for
in the preceding clauses (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by the preceding clauses (a)
and (b), then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnified party and the indemnifying party, but also
the relative fault of the indemnified party and the indemnifying party, as well
as any other relevant equitable considerations, PROVIDED, that neither the
Investor nor any Pecuniary Owner shall be required to contribute an amount
greater than the dollar amount of the proceeds received by such Person with
respect to the sale of the Registrable Securities giving rise to such
indemnification obligation. The relative fault of the Company on the one hand
and of the Investor and each Pecuniary Owner, on the other shall be determined
by reference to, among other things, whether
29
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such party, and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 10(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentations.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) The investment banker or investment bankers and manager or
managers that will administer the Underwritten Offering will be selected by the
Investor; PROVIDED that such investment bankers and managers must be reasonably
satisfactory to the Company.
(b) No Person may participate in any Underwritten Registration
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Nothing in this Section 6 shall be construed to create any additional rights
regarding the registration of Registrable Securities in any Person otherwise
than as set forth herein.
7. MISCELLANEOUS.
(a) REMEDIES. Each party hereto, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement to the extent available under applicable law. Each party hereto
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) THIRD PARTY REGISTRATION RIGHTS. The Company will not on or
after the date of this Agreement, without the written consent of the Investor,
enter into any agreement granting any Person holding securities of the Company
the right to participate in a Registration Statement filed because of a demand
for registration by the Investor pursuant to this Agreement, unless such rights
provide that the securities to be registered for the Investor would not be
subject to any exclusion from a Registration Statement because of the inclusion
of such Person's securities in such Registration Statement.
(c) INVESTOR AS AGENT. (i) The Company acknowledges and agrees that
each of the Pecuniary Owners has initially appointed the Investor to act as its
agent and on its behalf in connection with the matters contemplated by this
Agreement. Until such time as the
30
Company shall have received a written notice from any Pecuniary Owner or the
Investor that the Investor is no longer acting as such Pecuniary Owner's agent
hereunder, the Company shall be entitled to rely on any instructions and notices
received from the Investor on behalf of Pecuniary Owner as if received from such
Pecuniary Owner directly. The parties hereto further acknowledge and agree that
Investor shall act solely as agent for and on behalf of the Pecuniary Owners in
connection with the matters set forth in this Agreement, and that the Investor
shall not, under any circumstances, have any liability to the Company in its
individual capacity arising out of or in connection with this Agreement or the
transactions contemplated hereby.
(ii) In the event that any Pecuniary Owner shall at anytime subsequent
to the date hereof appoint a successor agent to the Investor in connection with
the matters set forth in this Agreement, such successor shall be entitled to,
and to exercise on behalf of such Pecuniary Owner, all of the rights and
remedies provided for herein with respect to the Investor or such Pecuniary
Owner, as the case may be, and the rights and remedies of such Pecuniary Owner
hereunder shall not in any way be modified, limited, delayed or impaired as a
consequence of such appointment. The Company shall grant such successor agent
such registration rights as are necessary to preserve the rights of such
Pecuniary Owner under this Agreement, provided that such rights shall not
conflict with the rights of the Investor hereunder.
(iii) The provisions of Sections 4, 5 and of this Section 7(c) shall
remain in full force and effect with respect to the Investor notwithstanding any
termination of the Investor's appointment as agent for and on behalf of any or
all of the Pecuniary Owners hereunder.
(iv) Reference herein to the Investor "holding" Registrable Securities
shall mean holding such securities as agent for and on behalf of the Pecuniary
Owners.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the written consent of the Company and the Investor;
PROVIDED, that the provisions of Sections 4, 5, and 7(c) may not, under any
circumstances and notwithstanding any termination of the Investor's appointment
as agent for and on behalf of any or all of the Pecuniary Owners hereunder, be
amended, modified, supplemented or waived without the written consent of the
Investor.
(e) NOTICES. The notice provisions contained in Section 6.6 of the
Purchase Agreements shall be incorporated herein and shall be governing under
this Agreement.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, other than any subsequent holders of Registrable Securities, provided
further, that the Company cannot assign its rights hereunder except pursuant to
a merger. Notwithstanding the foregoing, the Investor shall have the right to
allocate a portion of the Common Stock to its affiliate, LaSalle Advisors
Limited Partnership, a registered investment adviser ("LaSalle"), on behalf of
certain clients of LaSalle
31
listed on Exhibit A to the Purchase Agreement (the "LaSalle Clients").
Following such allocation, references herein to "Investor" and "Pecuniary Owner"
shall be deeded to include LaSalle and the LaSalle Clients, respectively.
(g) 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.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO, SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF MARYLAND, WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
(j) 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,
and 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 simultaneously 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 7(j).
(k) ARBITRATION. In the event of a dispute hereunder which cannot be
resolved by the parties, such dispute shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and judgment on the award rendered by the arbitration panel may be
entered in any court or tribunal of competent jurisdiction.
(l) 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.
32
In any proceeding brought to enforce any provision of this Agreement the
successful party shall be entitled to recover reasonable attorneys' fees in
addition to its costs and expenses and any other available remedy.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
"COMPANY"
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By:
-----------------------------------
Name:
Title:
"INVESTOR"
ABKB/LA SALLE SECURITIES LIMITED,
as agent for and on behalf of
the Pecuniary Owners
By:
-----------------------------------
Name:
Title:
33
SCHEDULE 2.2
Subsidiaries
AIMCO/NHP Holdings, Inc.
AIMCO Properties, L.P.
NHP Incorporated
Property Asset Management Services, Inc.
Property Asset Management Services, L.P.
AIMCO/NHP Partners, L.P.
AIMCO-L.P., Inc.
34
SCHEDULE 4.4
OPINION OF
SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP
OR
MARYLAND COUNSEL
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Maryland. The Company has the
corporate power pursuant to its Charter and By-laws to own its current
properties and conduct its business substantially as now conducted as described
in the Registration Statement.
2. The Company has the corporate power pursuant to its Charter and
By-laws to execute, deliver and perform the Agreement. The execution, delivery
and performance of the Agreement have been duly authorized by the Company.
3. The Company has duly executed and delivered the Agreement as of
the date thereon. The Agreement is enforceable against the Company in
accordance with its terms.
4. The authorized stock of the Company is as set forth in the
Agreement. All of the outstanding shares of Capital Stock have been duly
authorized and are validly issued, fully paid and nonassessable.
5. The Shares have been duly authorized for issuance and sale and,
when sold and delivered against payment therefor in the manner described in the
Agreement, will be validly issued, fully paid and nonassessable, and not subject
to any preemptive or other similar rights arising by operation of law, under the
Charter or By-laws, under any resolution adopted by the board of directors of
the Company or any committee thereof or, to such counsel's knowledge, otherwise.
6. The execution, delivery, performance and compliance with the
terms of the Agreement on the part of the Company do not and will not violate
the Charter or the Bylaws of the Company or any applicable law, rule or
regulation.
7. The stock certificate for the Shares is in due and proper form
and complies with Maryland law.
35
8. To such counsel's knowledge, based solely on discussions with,
and representations from, officers and other representatives of the Company, and
on correspondence from certain of the Company's legal counsel to its independent
accountants, there are no legal or governmental proceedings pending or
threatened against the Company or any of its subsidiaries, or to which the
Company or any of its subsidiaries or any of their respective properties is
subject, that are required to be described in the Registration Statement, the
Prospectus or the Prospectus Supplement by the Act or the Exchange Act that are
not so described as required, and there are no agreements, contracts,
indentures, leases or other instruments that are required to be described in the
Registration Statement, the Prospectus or the Prospectus Supplement or to be
filed as an exhibit to the Registration Statement or any Incorporated Documents
that are not so described or filed.
9. The execution and delivery by the Company of the Purchase
Agreement, and the performance by the Company of its obligations thereunder,
will not (a) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, the certificate of
incorporation of AIMCO-GP, Inc. or AIMCO-LP, Inc., or the certificate of limited
partnership or limited partnership agreement of AIMCO Properties, L.P., a
Delaware limited partnership (the "Operating Partnership"), or (b) conflict with
or constitute a breach of, or default under, any of the Applicable Contracts
(The term "Applicable Contracts" shall include all agreements that are material
to the Company or any Subsidiary).
10. All Governmental Approvals (as hereinafter defined) legally
required for the issuance and sale of the Shares as contemplated by the Purchase
Agreement have been obtained and are effective. "Governmental Approval" means
any consent, approval, license, authorization or validation of, or filing,
recording or registration with, any United States, Delaware or Maryland
executive, legislative, judicial, administrative or regulatory body, pursuant to
the laws, rules and regulations of the United States of America, the State of
Maryland and the Delaware Statutes that, in such counsel's experience, are
normally applicable to transactions of the type contemplated by the Purchase
Agreement, provided, however, that such counsel need express no opinion as to
the "blue sky" or state securities or real estate syndication laws of any
jurisdiction.
11. The Registration Statement, as of its effective date, and the
Prospectus and the Prospectus Supplement, as of their respective dates, appeared
on their face to be appropriately responsive in all material respects to the
requirements of the Act, except that, in each case, such counsel need express no
opinion as to the financial statements, schedules or other financial and
statistical data included or incorporated by reference therein or excluded
therefrom or the exhibits to the Registration Statement, and such counsel need
not assume any responsibility for the accuracy, completeness or
36
fairness of the statements contained in the Registration Statement, the
Prospectus and the Prospectus Supplement.
12. The Prospectus Supplement has been filed with the Commission
pursuant to Rule 424(b) under the Act.
13. The Registration Statement has become effective under the Act,
and such counsel has been advised by the Commission that no stop order
suspending the effectiveness of the Registration Statement has been issued and,
to the best of such counsel's knowledge, no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
No facts have come to such counsel's attention that have led it to
believe that the Registration Statement (including the Incorporated Documents),
at the time it became effective and as of the date of the Purchase Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading or that
the Prospectus Supplement (including the Incorporated Documents), as of its date
and as of the date hereof, contained or contain an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances in which they were
made, not misleading (except that such counsel need express no opinion as to
financial statements, schedules and other financial information included or
incorporated by reference therein or excluded therefrom or the exhibits to the
Registration Statement).
37
