1
EXHIBIT 10.29
REGISTRATION RIGHTS AGREEMENT
This Registration Rights and Lock-Up Agreement (the "Agreement") is
entered into as of November 25, 1996 among SUN COMMUNITIES, INC., a
Maryland corporation (the "Company"), XXXXXX X. XXXXX ("Xxxxx"), individually,
and S&K XXXXX CO., a Michigan co-partnership ("S&K"; S&K and Xxxxx are
sometimes hereinafter collectively referred to as the "New Investors").
RECITALS
A. Sun Communities Operating Limited Partnership, a Michigan limited
partnership (the "Partnership"), and the New Investors entered into a
Contribution Agreement pursuant to which the Company has agreed to issue
limited partnership interests in the Partnership ("Common OP Units") to the New
Investors.
B. The limited partnership agreement of the Partnership (the
"Partnership Agreement") provides that the Company, in its capacity as general
partner of the Partnership, will, subject to certain limitations, exchange one
share of the Company's common stock ("Common Stock") for one (1) Common OP
Unit.
C. The Company, Xxxxxx Brothers, Inc., and certain other holders of
Common Stock and Common OP Units (the "Original Investors") previously entered
into a Registration Rights and Lock-Up Agreement dated as of December 15, 1993
(the "Original Registration Rights Agreement") pursuant to which the Company
granted certain rights to the Original Investors.
D. The Company and certain holders of Common OP Units (the "MLVA
Investors") previously entered into a Registration Rights and Lock-Up Agreement
dated as of April 7, 1994 (the "MLVA Registration Rights Agreement") pursuant
to which the Company granted certain rights to the MLVA Investors.
E. The Company and certain holders of Common OP Units (the "Scio
Investors") previously entered into a Registration Rights and Lock-Up Agreement
dated as of March 30, 1995 (the "Scio Registration Rights Agreement") pursuant
to which the Company granted certain rights to the Scio Investors.
F. The Company and a holder of Common OP Units (the "Kensington
Investor") previously entered into a Registration Rights and Lock-Up Agreement
dated as of May 1, 1995 (the "Kensington Registration Rights Agreement")
pursuant to which the Company granted certain rights to the Kensington
Investor.
G. The Company and certain holders of Common OP Units (the "Aspen
Investors") previously entered into a Registration Rights and Lock-Up Agreement
dated as of April 30, 1996 (the "Aspen Registration Rights Agreement") pursuant
to which the Company granted certain rights to the Aspen Investors.
H. The Company and the New Investors are entering into this Agreement
to set forth certain rights and restrictions with respect to the Common OP
Units held by the New Investors.
2
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms shall have
the following definitions:
"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly, controls, is controlled by or under common control with
such Person.
"Existing Investors" means the Aspen Investors, Kensington Investor,
Scio Investors, MLVA Investors, and the Original Investors.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or a government or any
department or agency thereof.
"Registrable Securities" means (i) the Common Stock issued or issuable
upon exchange of the Common OP Units, (ii) the Common Stock issued or issuable
upon exercise of stock options, (iii) the Common Stock issued prior to or
contemporaneously with the Company's initial public offering of Common Stock,
and (iv) any Common Stock issued or issuable with respect to the Common Stock
referred to in clauses (i) through (iii), inclusive, above by way of stock
dividend, stock split or in connection with a combination of stock,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be Registrable
Securities when they have been sold to the public pursuant to an offering
registered under the Securities Act or sold to the public in compliance with
Rule 144 under the Securities Act (or any similar rule then in force). For
purposes of this Agreement, (i) Registrable Securities shall include those
Registrable Securities held by Existing Investors, the New Investors, and their
successors and assigns, and (ii) a Person will be deemed to be a holder of
Registrable Securities whenever such Person has the right to acquire directly
or indirectly such Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"Registration Rights Agreements" means this Agreement, the Aspen
Registration Rights Agreement, the Kensington Registration Rights Agreement,
the Scio Registration Rights Agreement, the MLVA Registration Rights Agreement,
and the Original Registration Rights Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Water Oak" means Water Oak Ltd., a Florida limited partnership.
"Water Oak Registration" means the registration rights granted to Water
Oak pursuant to Section 1(b) of the Original Registration Rights Agreement.
-2-
3
2. DEMAND REGISTRATIONS.
(a) From the one year anniversary of the date of this Agreement until the five
year anniversary of the date of this Agreement, subject to the terms and
conditions set forth herein, the New Investors may request registration under
the Securities Act of all or part of their Registrable Securities (each, a
"Demand Registration"). Any request (a "Registration Request") for a Demand
Registration shall specify (i) the number of Registrable Securities requested to
be registered (but not less than 20,000 shares of Common Stock), and (ii)
whether or not such Demand Registration should be filed pursuant to Rule 415 of
Regulation C promulgated under the Securities Act (or any successor rule) (a
"Shelf Registration"); provided, however, that the Company may elect, at its
option, to file for a Shelf Registration. Within ten (10) days after the date
of sending of such request, the Company will give written notice of such
requested registration to all other holders of Registrable Securities, if any,
and will include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within
fifteen (15) days after the date of sending of the Company's notice.
(b) From and after the one year anniversary of the date of this Agreement, the
holders of Registrable Securities will be entitled to request six (6) Demand
Registrations, each of which may be an underwritten registration or a Shelf
Registration to remain effective for up to six months; provided, however, that
the New Investors shall not be entitled to request an additional Demand
Registration as long as the Company maintains an effective Shelf Registration
covering all Registrable Securities held by the New Investors or their
transferees until the five year anniversary of the date of this Agreement and
otherwise complies with the terms of this Agreement. Demand Registrations
requested under the Original Registration Agreement, the MLVA Registration
Agreement, the Scio Registration Rights Agreement, the Kensington Registration
Rights Agreement, and the Aspen Registration Rights Agreement shall be included
in the definition of Demand Registrations for purposes of determining the number
of Demand Registrations permitted under this Section 2(b) as long as the New
Investors have the right to include their Registrable Securities in such
registrations.
(c) The New Investors and any of their transferees participating in the Demand
Registration will pay all Registration Expenses (as defined in Section 8) in
connection with such Demand Registration in proportion to the amount of
Registrable Securities held by each New Investor or transferee participating in
the Demand Registration.
(d) A registration will not count as one of the Demand Registrations unless the
holders of Registrable Securities are able to register and in fact sell at least
75% of the Registrable Securities requested to be included in such registration.
(e) Until the three year anniversary of the date of this Agreement, the Company
will not include in any Demand Registration any securities which are not
Registrable Securities without the prior written consent of the holders of a
majority of the shares of Registrable Securities included in such registration.
If a Demand Registration or a Water Oak Registration is an underwritten offering
and the managing underwriters advise the Company in writing that in their
opinion the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering, exceeds the number of
Registrable Securities and other securities, if any, which can be sold in an
orderly manner
-3-
4
in such offering within a price range acceptable to Water Oak or the holders of
a majority of the Registrable Securities initially requesting registration, as
the case may be, the Company will (i) in the case of a Demand Registration,
include in such registration prior to the inclusion of any securities which are
not Registrable Securities the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold in an orderly
manner within the price range of such offering, pro rata among the respective
holders thereof on the basis of the amount of Registrable Securities owned by
each such holder and (ii) in the case of a Water Oak Registration, the Company
will include in such registration first, the number of Water Oak Shares
requested to be included and second, the number of Registrable Securities which
in the opinion of such underwriters can be sold in an orderly manner within the
price range of such offering, pro rata among the respective holders thereof on
the basis of the amount of Registrable Securities owned by each such holder.
(f) In the case of an underwritten offering, the holders of a majority of the
then outstanding shares of Registrable Securities or, in the case of a Water Oak
Registration, Water Oak, will have the right to select the investment banker(s)
and manager(s) to administer the offering, subject to the Company's approval
which will not be unreasonably withheld.
3. ADDITIONAL SHELF REGISTRATIONS.
(a) In addition to their rights set forth in Section 2, the New Investors may
request in writing that the Company register all or part of their Registrable
Securities pursuant to an additional Shelf Registration (an "Additional Shelf
Registration") at any time from the one year anniversary of the date of this
Agreement (the "Shelf Request Date") through the five year anniversary of the
date of this Agreement, provided that the Company shall not be required to
effect more than one Additional Shelf Registration in any calendar year pursuant
to the Registration Rights Agreements. Any request for an Additional Shelf
Registration shall specify the number of Registrable Securities to be registered
(but not less than the lesser of ten thousand (10,000) shares of Common Stock or
all of the New Investors' Registrable Securities). Within ten (10) days after
the sending of such request, the Company will give written notice of such
requested Additional Shelf Registration to all other holders of Registrable
Securities, if any, and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within fifteen (15) days after the date of sending of the
Company's notice.
(b) Additional Shelf Registrations shall not count as Demand Registrations;
provided, however, that the New Investors shall not be entitled to request an
Additional Shelf Registration as long as the Company maintains an effective
Shelf Registration covering all Registrable Securities held by the New Investors
or their transferees until the five year anniversary of the date of this
Agreement and otherwise complies with the terms of this Agreement.
(c) Each New Investor and any of their transferees participating in an
Additional Shelf Registration will pay all Registration Expenses in connection
with such Additional Shelf Registration in proportion to the amount of
Registrable Securities held by each New Investor or transferee participating in
the Additional Shelf Registration.
-4-
5
4. FINAL SHELF REGISTRATION.
(a) In addition to their rights set forth in Sections 2 and 3, the New
Investors may request in writing that the Company register all or part of their
Registrable Securities pursuant to an additional Shelf Registration (a "Final
Shelf Registration") at any time after the five year anniversary of the date of
this Agreement (the "Shelf Request Date"), provided that the Company shall not
be required to effect more than one Final Shelf Registration in any calendar
year pursuant to this Agreement. Any request for a Final Shelf Registration
shall specify the number of Registrable Securities to be registered (but not
less than the lesser of one hundred thousand (100,000) shares of Common Stock or
all of the New Investors' Registrable Securities).
(b) Final Shelf Registrations shall not count as Demand Registrations;
provided, however, that a New Investor shall not be entitled to request a Final
Shelf Registration during any calendar year as long as the Company maintains an
effective Shelf Registration covering all Registrable Securities held by the New
Investor or his transferees until the end of the relevant calendar year.
(c) Each New Investor and any of their transferees participating in the Final
Shelf Registration will pay all Registration Expenses in connection with such
Final Shelf Registration in proportion to the amount of Registrable Securities
held by each New Investor or transferee participating in the Final Shelf
Registration.
(d) Notwithstanding anything to the contrary, the Company shall not be required
to register any Registrable Securities pursuant to a Final Shelf Registration if
the Company delivers an opinion letter from its counsel stating that the
relevant Registrable Securities may be sold to the public in compliance with
Rule 144 under the Securities Act (or any similar rule then in force).
5. PIGGYBACK REGISTRATIONS.
(a) Until the date five (5) years after the date of this Agreement, if the
Company proposes to register any of its securities under the Securities Act
(other than pursuant to (i) a Demand Registration or an Additional Shelf
Registration pursuant to the Registration Rights Agreements, (ii) a registration
on Form S-4 or any successor form, or (iii) an offering of securities in
connection with an employee benefit, stock dividend, stock ownership or dividend
reinvestment plan) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration (each a "Piggyback Notice") and, subject
to Sections 5(c) and 5(d) below, the Company will include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within fifteen (15) days after the date
of sending of the Company's notice (the "Included Registrable Securities");
provided, however, that, at the Company's option, the Company may file a
separate registration statement for, and with respect to, Included Registrable
Securities in satisfaction of the Company's obligation hereunder.
(b) The Company will pay all Registration Expenses in connection with the
Piggyback Registrations.
-5-
6
(c) If a Piggyback Registration is an underwritten primary registration
on behalf of the Company, and the managing underwriters advise the
Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which
can be sold in an orderly manner within a price range acceptable to the
Company, the Company will include in such registration (i) first, the
securities the Company proposes to sell and (ii) second, the Registrable
Securities requested to be included in such Registration and any other
securities requested to be included in such registration, pro rata among
the holders of Registrable Securities requesting such registration and
the holders of such other securities on the basis of the number of
shares owned by each such holder.
(d) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities other than
the holders of Registrable Securities, and the managing underwriters
advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a
price range acceptable to the holders initially requesting such
registration, the Company will include in such registration first, all
of the securities requested to be included therein by the holders
initially requesting such registration and second, the Registrable
Securities requested to be included in such registration pro rata among
the holders of such Registrable Securities on the basis of the number of
shares owned by each such holder.
(e) In the case of an underwritten Piggyback Registration, the Company
will have the right to select the investment banker(s) and manager(s) to
administer the offering.
6. HOLDBACK AGREEMENTS. The Company agrees (a) not to effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
90-day period beginning on the effective date of any underwritten Demand
Registration (except pursuant to (i) registrations on Form S-8 or any successor
form, (ii) registrations on Form S-4 or any successor form, and (iii)
registrations of securities in connection with the Company's dividend
reinvestment plan on form(s) applicable to such securities) unless the
underwriters managing the registered public offering otherwise agree, and (b)
to use its reasonable efforts to obtain agreements from its officers, directors
and affiliated stockholders (including, without limitation, each holder of more
than five percent (5%) of the outstanding Common Stock), to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
7. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof and pursuant thereto the Company will as
expeditiously as possible:
-6-
7
(a) prepare and file with the Securities and Exchange Commission a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective and, in the case of an
Additional Shelf Registration, remain effective for a period of ninety days
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the period required by the intended method of
disposition or to describe the terms of any offering made from an effective
Shelf Registration, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of copies of
such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 7(d), (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process in any such
jurisdiction, or (iv) qualify such Registrable Securities in a given
jurisdiction where expressions of investment interest are not sufficient in such
jurisdiction to reasonably justify the expense of qualification in the
jurisdiction or where such qualification would require the Company to register
as a broker or dealer in such jurisdiction).
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any material fact necessary to make the statements therein not
misleading, and, at the request of any such seller, the Company will prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such 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;
-7-
8
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company
are then listed and to be qualified for trading on each system on which
similar securities issued by the Company are from time to time
qualified;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement and thereafter maintain such a transfer agent and registrar;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
holders of a majority of the shares of Registrable Securities being sold
or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(i) make available for inspection by any underwriter participating in
any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such underwriter,
all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information
reasonably requested by any such underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months
beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of
such registration or comparable statement and to require the insertion
therein of material, furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included;
(l) make available appropriate management personnel for participation
in the preparation and drafting of such registration or comparable
statement, for due diligence meetings;
(m) provided the registration statement covers at least four hundred
thousand (400,000) shares of Common Stock, make available appropriate
management personnel for participation in "road show" meetings;
(n) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any common stock included in such registration
statement for sale in any jurisdiction, the company will use its
reasonable best efforts to promptly obtain the withdrawal of such order;
and
-8-
9
(o) use reasonable efforts to obtain a cold comfort letter from the
Company's independent public accountants addressed to the selling
holders of Registrable Securities in customary form and covering such
matters of the type customarily covered by cold comfort letters as the
holders of a majority of the Registrable Securities being sold
reasonably request.
Each New Investor agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 7(e) or (n) hereof,
such New Investor will forthwith discontinue disposition of shares of Common
Stock pursuant to a Demand, Piggyback, or Final Shelf Registration until
receipt of the copies of an appropriate supplement or amendment to the
prospectus under Section 7(e) or until the withdrawal of such order under
Section 7(n). If any such registration or comparable statement refers to any
holder by name or otherwise as the holder of any securities of the Company and
if, in its sole and exclusive judgment, such holder is or might be deemed to be
a controlling person of the Company, such holder shall have the right to
require (i) the insertion therein of language, in form and substance
satisfactory to such holder and presented to the Company in writing, to the
effect that the holding by such holder of such securities is not to be
construed as a recommendation by such holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
such holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such holder by name or
otherwise is not required by the Securities Act or any similar Federal statute
then in force, the deletion of the reference to such holder; provided that with
respect to this clause (ii) such holder shall furnish to the Company an opinion
of counsel to such effect, which opinion and counsel shall be reasonably
satisfactory to the Company.
8. REGISTRATION EXPENSES. The term "Registration Expenses" means all
expenses incident to the Company's performance of or compliance with this
agreement, including, without limitation, all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of
counsel for the Company and all independent certified public accountants,
underwriters (excluding underwriting discounts and commissions which shall
always be paid by the selling stockholders out of the proceeds of the offering)
and other Persons retained by the Company.
9. SUBSEQUENT HOLDERS. The Company and each New Investor hereby agree
that any subsequent holder of Registrable Securities shall be entitled to all
benefits hereunder as a holder of Registrable Securities; provided, however,
that, in any event, if the Company's Charter prohibits the acquisition of the
desired number of shares by such holder, such number shall be reduced to the
amount of shares of Registrable Securities such holder may acquire and such
holder's transferees shall also be entitled to all benefits hereunder as a
holder of Registrable Securities.
10. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers, directors and
trustees and each Person who controls (within the meaning of the
Securities Act) such holder against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue
statement of material fact contained in any registration statement,
prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of 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 to the
-9-
10
Company in writing by such holder expressly for use therein or by such
holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company
has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each
Person who controls (within the meaning of the Securities Act) such
underwriters to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish
to the Company in writing such information as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the
Company, its directors and officers and each Person who controls (within
the meaning of the Securities Act) the Company against any losses,
claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof
or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information so furnished in
writing by such holder; provided that the obligation to indemnify will
be individual to each holder.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject to
any liability for any settlement made by the indemnified party without
its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of
any indemnified party a conflict of interest may exist between such
indemnified party and any other such indemnified parties with respect to
such claim.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and will survive the transfer of
securities. The Company also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such
party in the event the Company's indemnification is unavailable for any
reason.
11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration
shall be required to make any representations or
-10-
11
warranties to the Company or the underwriters other than representations and
warranties regarding such holder and such holder's intended method of
distribution.
12. LISTING REQUIREMENTS. The Company hereby agrees to cause all
Registrable Securities to be promptly listed on each securities exchange on
which similar securities issued by the Company are listed and to be qualified
for trading on each system on which similar securities issued by the Company
are from time to time qualified.
13. REPORTS AND INFORMATION. The Company hereby agrees to provide to
the New Investors copies of all documents distributed to the Company's
shareholders.
14. MISCELLANEOUS.
(a) The Company will not hereafter enter into any agreement with
respect to its securities which is inconsistent with or violates the
rights granted to the holders of Registrable Securities in this
Agreement.
(b) The Company will not take any action, or permit any change to
occur, with respect to its securities which would materially and
adversely affect the ability of the holders of Registrable Securities to
include such Registrable Securities in a registration undertaken
pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or
a combination of shares) provided that this subsection (b) shall not
apply to actions or changes with respect to the Company's business,
earnings or revenues where the effect of such actions or changes on the
Registrable Securities is merely incidental.
(c) Any Person having rights under any provision of this Agreement will
be entitled to enforce such rights specifically to recover damages
caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent
jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or
prevent violation of the provisions of this Agreement.
(d) Except as otherwise provided herein, the provisions of this
Agreement may be amended or waived only upon the prior written consent
of the Company and holders of a majority of the then outstanding shares
of Registrable Securities. However, the Company may unilaterally amend
this Agreement to provide (i) that other holders of Registrable
Securities shall be added as parties to this Agreement and included
within the definition of "New Investors" or (ii) that Registrable
Securities held by any holder shall be included within the definition of
"Registrable Securities".
(e) Subject to Section 9 hereof, all covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and
inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not. In addition, whether or not
any express assignment has been made but subject in any case to Section
9 hereof, the provisions of this Agreement which are for the benefit of
purchasers or holders
-11-
12
of Registrable Securities are also for the benefit of, and enforceable
by, any subsequent holder of Registrable Securities.
(f) Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by
or invalid under applicable law, such provision will be ineffective only
to the extent of such prohibition or invalidity, without invalidating
the remainder of this Agreement.
(g) This Agreement may be executed in two or more counterparts, any one
of which need not contain the signatures of more than one party, but all
such counterparts taken together will constitute one and the same
Agreement.
(h) The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(i) The corporate laws of the State of Maryland will govern all
questions concerning the relative rights of the Company or its
stockholders and the laws of Michigan will govern all questions
concerning the relative rights of holders of Common OP Units. All other
questions concerning the construction, validity and interpretation of
this Agreement will be governed by and construed in accordance with the
domestic laws of the State of Michigan, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State
of Michigan or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Michigan. This
Section 14(i) shall not be interpreted as granting exclusive
jurisdiction to the States of Michigan and Maryland.
(j) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable express
courier service (charges prepaid) or mailed to the recipient by
certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications will be sent to
each New Investor at the address indicated on the records of the Company
and to the Company at the address indicated below:
00000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending
party.
-12-
13
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth above.
SUN COMMUNITIES, INC.,
a Maryland corporation
By: Xxxxxxxx Xxxxx
-----------------------
Its: Sr. VP - Acquisitions
----------------------
"NEW INVESTORS"
Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
S&K XXXXX CO.,
a Michigan co-partnership
By: Xxxxx X. Xxxxx
-----------------------
Its: Xxxxx X. Xxxxx, Partner
------------------------
-13-
