EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of _________, 2004, is
entered into by and among Education Realty Trust, Inc., a Maryland corporation
(the "Company"), Education Realty Operating Partnership, LP, a Delaware limited
partnership (the "Operating Partnership"), JPI Investment Company, L.P., a Texas
limited partnership (the "Warrant Holder"), and the unit holders whose names are
set forth on the signature pages hereto (each a "Unit Holder" and collectively,
the "Unit Holders").
RECITALS
WHEREAS, in connection with the initial public offering of shares of
the Company's common stock, par value $.01 per share (the "Common Stock"), the
Company, the Operating Partnership, the Warrant Holder and the Unit Holders as
the parties which hold ownership interests in certain student housing properties
and other assets (the "Properties") will engage in certain formation
transactions (the "Formation Transactions") whereby the Warrant Holder and the
Unit Holders will contribute to the Operating Partnership their interests in the
Properties and other assets;
WHEREAS, the Unit Holders will receive among other consideration, units
of limited partnership interests ("Units") in the Operating Partnership in
exchange for their respective interests in the Properties and other assets, and
the Company will be the sole stockholder of the general partner of the Operating
Partnership;
WHEREAS, the Warrant Holder will receive a warrant (the "Warrant") for
shares of Common Stock in exchange for, among other consideration, its interest
in the Properties and other assets contributed to the Operating Partnership;
WHEREAS, pursuant to the Partnership Agreement (as defined below),
Units will be redeemable for cash or exchangeable for shares of Common Stock of
the Company upon the terms and subject to the conditions contained therein; and
WHEREAS, the Unit Holders and the Warrant Holder are willing to
contribute their respective interests in the Properties and other assets in
consideration of receiving, among other things, the registration rights set
forth in Article II hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. In addition to the definitions set forth above, the
following terms, as used herein, have the following meanings:
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under common control with such Person. For the
purposes of this definition, "control" when used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" means this Registration Rights Agreement, as it may be amended,
supplemented or restated from time to time.
"Business Day" means any day except a Saturday, Sunday or other day on which
commercial banks in Memphis, Tennessee are authorized by law to close.
"Commission" means the Securities and Exchange Commission.
"Demand Registration" means a Demand Registration as defined in Section 2.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended and the
rules and regulations promulgated thereunder.
"Exchangeable Units" means Units which may be redeemable for cash or
exchangeable for Common Stock pursuant to Section 7.4 of the Partnership
Agreement.
"General Partner" means the Company or its successors as general partner of the
Operating Partnership.
"Holder" means any Person who is the record or beneficial owner of any
Registrable Security or any assignee or transferee of such Registrable Security
(including assignments or transfers of Registrable Securities to such assignees
or transferees as a result of the foreclosure on any loans secured by such
Registrable Securities) to the extent (x) permitted under the Partnership
Agreement or the Warrant and (y) such assignee or transferee agrees in writing
to be bound by all the provisions hereof, unless such Registrable Security is
acquired in a public distribution pursuant to a registration statement under the
Securities Act or pursuant to transactions exempt from registration under the
Securities Act where securities sold in such transaction may be resold without
subsequent registration under the Securities Act.
"Initial Public Offering" means the offering of the Company's Common Stock
pursuant to the Form S-11 Registration Statement filed by the Company with the
Commission under the Securities Act.
"Market Value" means, with respect to the Common Stock, the average of the daily
market price for the ten (10) consecutive trading days immediately preceding the
date of a written request for registration pursuant to Section 2.2(a). The
market price for each such trading day shall be: (i) if the Common Stock is
listed or admitted to trading on any securities exchange or the NASDAQ National
Market System, the closing price, regular way, on such day, or if no such sale
takes place on such day, the average of the closing bid and asked prices on such
day, in either case as reported in the principal consolidated transaction
reporting system, (ii) if the Common Stock is not listed or admitted to trading
on any securities exchange or the NASDAQ National Market System, the last
reported sale price on such day or, if no sale takes place on such day, the
average of the closing bid and asked prices on such day, as reported by a
reliable quotation source designated by the Company, or (iii) if the Common
Stock is not listed or admitted to trading on any securities exchange or the
NASDAQ National Market System and no such last reported sale price or closing
bid and asked prices are available, the average of the reported high bid and low
asked prices on such day, as reported by a reliable quotation source designated
by the Company, or if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the most recent
day (not more than (10) days prior to the date in question) for which prices
have been so reported; provided that if there are no bid and asked prices
reported during the ten (10) days prior to the date in question, the Market
Value of the Common Stock shall be determined by the Board of
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Directors of the Company acting in good faith on the basis of such quotations
and other information as it considers, in its reasonable judgment, appropriate.
"Partnership Agreement" means the amended and restated agreement of limited
partnership of the Operating Partnership dated as of _________, 2004, as the
same may be amended, modified or restated from time to time.
"Person" means an individual or a corporation, partnership, limited liability
company, association, trust, or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Piggy-Back Registration" means a Piggy-Back Registration as defined in Section
2.3.
"Registrable Securities" means (a) shares of Common Stock of the Company at any
time owned, either of record or beneficially, by any Unit Holder (or any
permitted assignee or transferee thereof) and issued upon exchange of
Exchangeable Units received in the Formation Transactions, (b) shares of Common
Stock of the Company issuable to any Unit Holder (or any permitted assignee or
transferee thereof) upon exchange of Exchangeable Units received in the
Formation Transactions, (c) shares of Common Stock of the Company at any time
owned, either of record or beneficially, by the Warrant Holder (or any permitted
assignee or transferee thereof) and issued upon exercise of the Warrant issued
in the Formation Transactions, and (d) shares of Common Stock of the Company
issuable to the Warrant Holder (or any permitted assignee or transferee thereof)
upon exercise of the Warrant issued in the Formation Transactions (and, in the
case of clauses (a) and (c) above, any additional Common Stock issued as a
dividend, distribution or exchange for, or in respect of any such shares) until
(i) a registration statement covering such shares has been declared effective by
the Commission and such shares have been disposed of pursuant to such effective
registration statement, (ii) such shares are sold under circumstances in which
all of the applicable conditions of Rule 144 (or any similar provisions then in
force) under the Securities Act are met or under which such shares may be sold
pursuant to Rule 144(k), (iii) such shares held by such Person may be sold
pursuant to Rule 144 under the Securities Act and could be sold in one
transaction in accordance with the volume limitations contained in Rule
144(e)(1)(i) under the Securities Act, or (iv) such shares have been otherwise
transferred in a transaction that would constitute a sale thereof under the
Securities Act, the Company has delivered a new certificate or other evidence of
ownership for such shares not bearing the Securities Act restricted stock legend
and such shares may be resold without subsequent registration under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended and the rules and
regulations promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable Securities pursuant
to a registration statement under the Securities Act.
"Shelf Registration Statement" means a Shelf Registration statement as defined
in Section 2.1.
"Underwriter" means a securities dealer who purchases any Registrable Securities
as principal and not as part of such dealer's market-making activities.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. SHELF REGISTRATION. The Company shall, no later than the date that
is fifteen (15) days after the first anniversary of the consummation date of the
Initial Public Offering, prepare and file a
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"shelf" registration statement with respect to the Registrable Securities on an
appropriate form for an offering to be made on a continuous basis pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement") and shall
use its best efforts to cause the Shelf Registration Statement to be declared
effective as soon as practicable thereafter, and to keep such Shelf Registration
Statement continuously effective for a period ending when all shares of Common
Stock covered by the Shelf Registration Statement are no longer Registrable
Securities. In the event that the Company fails to file by the date identified
above, or if filed fails to maintain the effectiveness of, a Shelf Registration
Statement, Holders of shares of Common Stock issuable upon the exchange of
Exchangeable Units or issuable upon exercise of the Warrant may make a written
request for a Demand Registration (as defined below) pursuant to Section 2.2
herein or Piggy Back Registration (as defined below) pursuant to Section 2.3
herein; provided, further, that if and so long as a Shelf Registration Statement
is on file and effective, then the Company shall have no obligation to effect a
Demand Registration or Piggy Back Registration.
SECTION 2.2. DEMAND REGISTRATION.
(a) Request for Registration. Subject to Section 2.1 hereof, commencing
on or after the date which is eighteen (18) months after the consummation date
of the Initial Public Offering, Holders of Registrable Securities may make a
written request for registration under the Securities Act of all or part of its
or their Registrable Securities (a "Demand Registration"); provided, that the
Company shall not be obligated to effect more than one Demand Registration in
any twelve month period; and provided, further, that the number of shares of
Registrable Securities proposed to be sold by the Holders making such written
request shall have a Market Value of at least $2,000,000. Any such request will
specify the number of shares of Registrable Securities proposed to be sold and
will also specify the intended method of disposition thereof. Within ten (10)
days after receipt of such request, the Company will give written notice of such
registration request to all other Holders of the Registrable Securities and
include in such registration all such Registrable Securities with respect to
which the Company has received written requests for inclusion therein within
twenty (20) Business Days after the receipt by the applicable Holder of the
Company's notice. Each such request will also specify the number of shares of
Registrable Securities to be registered and the intended method of disposition
thereof.
(b) Effective Registration. A registration will not count as a Demand
Registration until it has become effective.
(c) Selling Holders Become Party to Agreement. Each Holder acknowledges
that by asserting or participating in its registration rights pursuant to this
Article II, such Holder may become a Selling Holder and thereby will be deemed a
party to this Agreement and will be bound by each of its terms.
(d) Underwriting. If the Holders of a majority of shares of the
Registrable Securities to be registered in a Demand Registration so elect by
written notice to the Company, the offering of such Registrable Securities
pursuant to such Demand Registration shall be in the form of an underwritten
offering. The Company shall select the book-running managing Underwriter in
connection with any such Demand Registration; provided that such managing
Underwriter must be reasonably satisfactory to the Holders of a majority of the
shares of the Registrable Securities. The Company may select any additional
investment banks and managers to be used in connection with the offering;
provided that such additional investment bankers and managers must be reasonably
satisfactory to a majority of the Holders making such Demand Registration. To
the extent 10% or more of the Registrable Securities so requested to be
registered are excluded from the offering in accordance with Section 2.4, the
Holders of such Registrable Securities shall have the right to one additional
Demand Registration under this Section in such twelve-month period with respect
to such Registrable Securities.
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SECTION 2.3. PIGGY-BACK REGISTRATION. Subject to Section 2.1 hereof, if the
Company proposes to file a registration statement under the Securities Act with
respect to an underwritten equity offering by the Company for its own account or
for the account of any of its respective security holders of any class of
security (other than (i) any registration statement filed in connection with a
demand registration other than a Demand Registration under this Agreement or
(ii) a registration statement on Form S-4 or Form S-8 (or any substitute form
that may be adopted by the Commission) or filed in connection with an exchange
offer or offering of securities solely to the Company's existing security
holders), then the Company shall give written notice of such proposed filing to
the Holders of Registrable Securities as soon as practicable (but in no event
less than ten (10) days before the anticipated filing date), and such notice
shall offer such Holders the opportunity to register such number of shares of
Registrable Securities as each such Holder may request (a "Piggy-Back
Registration"). The Company shall use its commercially reasonable efforts to
cause the managing Underwriter or Underwriters of a proposed underwritten
offering to permit the Registrable Securities requested to be included in a
Piggy-Back Registration to be included on the same terms and conditions as any
similar securities of the Company included therein. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
SECTION 2.4. REDUCTION OF OFFERING. Notwithstanding anything contained herein,
if the managing Underwriter or Underwriters of an offering described in Section
2.2 or 2.3 deliver a written opinion to the Company and the Holders of the
Registrable Securities included in such offering that (i) the size of the
offering that the Holders, the Company and such other persons intend to make or
(ii) the kind of securities that the Holders, the Company and/or any other
persons or entities intend to include in such offering are such that the success
of the offering would be materially and adversely affected by inclusion of the
Registrable Securities requested to be included, then (A) if the size of the
offering is the basis of such Underwriter's opinion, the amount of securities to
be offered for the accounts of Holders shall be reduced pro rata (according to
the Registrable Securities proposed for registration) to the extent necessary to
reduce the total amount of securities to be included in such offering to the
amount recommended by such managing Underwriter or Underwriters; provided that,
in the case of a Piggy-Back Registration, if securities are being offered for
the account of other persons or entities as well as the Company, then with
respect to the Registrable Securities intended to be offered by Holders, the
proportion by which the amount of such class of securities intended to be
offered by Holders is reduced shall not exceed the proportion by which the
amount of such class of securities intended to be offered by such other persons
or entities is reduced; and (B) if the combination of securities to be offered
is the basis of such Underwriter's opinion, (x) the Registrable Securities to be
included in such offering shall be reduced as described in clause (A) above
(subject to the proviso in clause (A)) or, (y) if the actions described in
clause (x) would, in the judgment of the managing Underwriter, be insufficient
to substantially eliminate the adverse effect that inclusion of the Registrable
Securities requested to be included would have on such offering, such
Registrable Securities will be excluded from such offering.
SECTION 2.5. REGISTRATION PROCEDURES; FILINGS; INFORMATION. In connection with
any Shelf Registration Statement under Section 2.1 or whenever Holders request
that any Registrable Securities be registered pursuant to Section 2.2 hereof,
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 as quickly as practicable, and in connection with any such
request:
(a) The Company will as expeditiously as possible prepare and file with
the Commission a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof, and
use its best efforts to cause such filed registration statement to become and
remain effective for a period
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of not less than 270 days; provided that if the Company shall furnish to the
Holders making a request pursuant to Section 2.2 a certificate signed by either
its Chairman, Chief Executive Officer or President stating that in his or her
good faith judgment it would be significantly disadvantageous to the Company or
its shareholders for such a registration statement to be filed as expeditiously
as possible, the Company shall have a period of not more than 180 days within
which to file such registration statement measured from the date of receipt of
the request in accordance with Section 2.2.
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to each
Selling Holder and each Underwriter, if any, of the Registrable Securities
covered by such registration statement copies of such registration statement as
proposed to be filed, and thereafter furnish to such Selling Holder and
Underwriter, if any, such number of conformed copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto and documents incorporated by reference therein), the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such Selling Holder or Underwriter may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Selling Holder.
(c) After the filing of the registration statement, the Company will
promptly notify each Selling Holder of Registrable Securities covered by such
registration statement of any stop order issued or threatened by the Commission
and take all reasonable actions required to prevent the entry of such stop order
or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify
the Registrable Securities under such other securities or blue sky laws of such
jurisdictions in the United States (where an exemption does not apply) as any
Selling Holder or managing Underwriter or Underwriters, if any, reasonably (in
light of such Selling Holder's intended plan of distribution) requests and (ii)
cause such Registrable Securities to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Selling Holder to
consummate the disposition of the Registrable Securities owned by such Selling
Holder; provided that the Company will not be required to (A) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (d), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(e) The Company will immediately notify each Selling Holder of such
Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the occurrence of an event
requiring the preparation of 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 required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading and promptly make available to each Selling Holder any such
supplement or amendment.
(f) The Company will enter into customary agreements (including an
underwriting agreement, if any, in customary form) and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities.
(g) The Company will make available for inspection by any Selling
Holder of such Registrable Securities, any Underwriter participating in any
disposition pursuant to such registration statement and any attorney, accountant
or other professional retained by any such Selling Holder or Underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents
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and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any Inspectors in connection with
such registration statement. Records which the Company determines, in good
faith, to be confidential and which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
registration statement or (ii) the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction. Each
Selling Holder of such Registrable Securities agrees that information obtained
by it as a result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the securities of the
company or its Affiliates unless and until such is made generally available to
the public. Each Selling Holder of such Registrable Securities further agrees
that it will, upon learning that disclosure of such Records is sought in a court
of competent jurisdiction, give notice to the Company and allow the Company, at
its expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential.
(h) The Company will furnish to each Selling Holder and to each
Underwriter, if any, a signed counterpart, addressed to such Selling Holder or
Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) if
eligible under SAS 72, a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such matters
of the type customarily covered by opinions or comfort letters, as the case may
be, as the Holders of a majority of the Registrable Securities included in such
offering or the managing Underwriter or Underwriters therefor reasonably
requests.
(i) The Company will otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and 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 Rule 158 of
the Commission promulgated thereunder (or any successor rule or regulation
hereafter adopted by the Commission).
(j) The Company will use its best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
The Company may require each Selling Holder of Registrable Securities
to promptly furnish in writing to the Company such information regarding such
Selling Holder, the Registrable Securities held by it and the intended method of
distribution of the Registrable Securities as the Company may from time to time
reasonably request and such other information as may be legally required in
connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 2.5(e)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.5(e) hereof, and,
if so directed by the Company, such Selling Holder will deliver to the Company
all copies, other than permanent file copies then in such Selling Holder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. Each Selling Holder of Registrable
Securities agrees that it will immediately notify the Company at any time when a
prospectus relating to the registration of such Registrable Securities is
required to be delivered under the Securities Act of the happening of an event
as a result of which information previously furnished by such Selling Holder to
the Company in writing for inclusion in such prospectus contains an untrue
statement of a material fact or omits to state any material fact required to be
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stated therein or necessary to make the statements therein not misleading in
light of the circumstances in which they were made. In the event the Company
shall give such notice, the Company shall extend the period during which such
registration statement shall be maintained effective (including the period
referred to in Section 2.5(a) hereof) by the number of days during the period
from and including the date of the giving of notice pursuant to Section 2.5(e)
hereof to the date when the Company shall make available to the Selling Holders
of Registrable Securities covered by such registration statement a prospectus
supplemented or amended to conform with the requirements of Section 2.5(e)
hereof.
SECTION 2.6. REGISTRATION EXPENSES. In connection with any registration
statement required to be filed hereunder, the Company shall pay the following
registration expenses incurred in connection with the registration hereunder
(the "Registration Expenses"): (i) all registration and filing fees, (ii) fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), (v) the fees
and expenses incurred in connection with the listing of the Registrable
Securities, (vi) reasonable fees and disbursements of counsel for the Company
and customary 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 2.5(h) hereof),
and (vii) the reasonable fees and expenses of any special experts retained by
the Company in connection with such registration. The Company shall have no
obligation to pay any underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities or any out-of-pocket expenses of the
Holders (or the agents who manage their accounts) or any transfer taxes relating
to the registration or sale of the Registrable Securities.
SECTION 2.7. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless each Selling Holder of Registrable Securities, its officers,
directors and agents, and each Person, if any, who controls such Selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by such Selling Holder or on
such Selling Holder's behalf expressly for inclusion therein. The Company also
agrees to indemnify any Underwriters of the Registrable Securities, their
officers and directors and each Person who controls such Underwriters within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 2.7, provided that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter of the Registrable Securities from whom the person asserting any
such losses, claims, damages or liabilities purchased the Registrable Securities
which are the subject thereof if such person did not receive a copy of the
prospectus (or the prospectus as supplemented) at or prior to the confirmation
of the sale of such Registrable Securities to such person in any case where such
delivery is required by the Securities Act and the untrue statement or omission
of a material fact contained in such preliminary prospectus was corrected in the
prospectus (or the prospectus as supplemented).
SECTION 2.8. INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. Each Selling
Holder agrees, severally but not jointly, to indemnify and hold harmless the
Company, its officers, directors and agents
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and each Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Selling Holder, but
only with respect to information relating to such Selling Holder furnished in
writing by such Selling Holder or on such Selling Holder's behalf expressly for
use in any registration statement or prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary
prospectus. In case any action or proceeding shall be brought against the
Company or its officers, directors or agents or any such controlling person, in
respect of which indemnity may be sought against such Selling Holder, such
Selling Holder shall have the rights and duties given to the Company, and the
Company or its officers, directors or agents or such controlling person shall
have the rights and duties given to such Selling Holder, by Section 2.7. Each
Selling Holder also agrees to indemnify and hold harmless Underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such Underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act on substantially the same basis as that of
the indemnification of the Company provided in this Section 2.8, provided that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter of the Registrable Securities from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Registrable Securities which are the subject thereof if such person did not
receive a copy of the prospectus (or the prospectus as supplemented) at or prior
to the confirmation of the sale of such Registrable Securities to such person in
any case where such delivery is required by the Securities Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus was corrected in the prospectus (or the prospectus as supplemented).
SECTION 2.9. CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 2.7 or
2.8, such person (an "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (an "Indemnifying Party") in writing
and the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all fees and expenses. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnified Party
and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by (i) in the case of Persons
indemnified pursuant to Section 2.7 hereof, the Selling Holders which owned a
majority of the Registrable Securities sold under the applicable registration
statement and (ii) in the case of Persons indemnified pursuant to Section 2.8,
the Company. The Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent, or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the Indemnifying Party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 Business Days after receipt
by such Indemnifying Party of the aforesaid request and (ii) such Indemnifying
Party shall not have reimbursed the Indemnified Party in accordance with such
request
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prior to the date of such settlement. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of with any Indemnified Party is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability arising out of such proceeding.
SECTION 2.10. CONTRIBUTION. If the indemnification provided for in Section 2.7
or 2.8 hereof is unavailable to an Indemnified Party or insufficient in respect
of any losses, claims, damages or liabilities referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) as between the Company and
the Selling Holders on the one hand and the Underwriters on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Holders on the one hand and the Underwriters on the
other from the offering of the securities, or if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits but also the relative fault of the Company and the
Selling Holders on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) between the Company on the one hand and each Selling
Holder on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of each Selling Holder in connection with such
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Holders on the one
hand and the Underwriters on the other shall be deemed to being the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and the Selling Holders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the prospectus. The relative fault of the Company and the Selling
Holders on the one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether 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 the Company and the Selling
Holders or by the Underwriters. The relative fault of the Company on the one
hand and of each Selling Holder on the other shall be determined by reference
to, among other things, whether 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.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.10 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 2.10, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the securities of such Selling Holder were offered to the
public exceeds the amount of any damages which such Selling Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the
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meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Selling Holder's obligations to contribute pursuant to
this Section 2.10 are several in proportion to the proceeds of the offering
received by such Selling Holder bears to the total proceeds of the offering
received by all the Selling Holders and not joint.
SECTION 2.11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any underwritten registration hereunder unless such Person (a)
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 (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and these
registration rights provided for in this Article II.
SECTION 2.12. RULE 144. The Company covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act and
that it will take such further action as any Holder may reasonably request, all
to the extent required from time to time to enable Holders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
SECTION 2.13. HOLDBACK AGREEMENTS.
(a) To the extent not inconsistent with applicable law, each Holder
whose securities are included in a registration statement agrees not to effect
any sale or distribution of the issue being registered or a similar security of
the Company, or any securities convertible into or exchangeable or exercisable
for such securities, including a sale pursuant to Rule 144 under the Securities
Act, during the 14 days prior to, and during the 90-day period beginning on, the
effective date of such registration statement (except as part of such
registration), if and to the extent requested in writing by the managing
Underwriter or Underwriters in the case of an underwritten public offering.
(b) If the Company determines in its good faith judgment that the
filing of the Shelf Registration Statement under Section 2.1 or a Demand
Registration under Section 2.2 hereof or the use of any related prospectus would
require the disclosure of material information that the Company has a bona fide
business purpose for preserving as confidential or the disclosure of which would
impede the Company's ability to consummate a significant transaction, and that
the Company is not otherwise required by applicable securities laws or
regulations to disclose, upon written notice of such determination by the
Company, the rights of the Holders to offer, sell or distribute any Registrable
Securities pursuant to the Shelf Registration Statement or a Demand Registration
or to require the Company to take action with respect to the registration or
sale of any Registrable Securities pursuant to the Shelf Registration Statement
or a Demand Registration shall be suspended until the earlier of (i) the date
upon which the Company notifies the Holders in writing that suspension of such
rights for the grounds set forth in this Section 2.12(c) is no longer necessary
and (ii) 180 days. The Company agrees to give such notice as promptly as
practicable following the date that such suspension of rights is no longer
necessary.
(c) If all reports required to be filed by the Company pursuant to the
Exchange Act have not been filed by the required date without regard to any
extension, or if the consummation of any business combination by the Company has
occurred or is probable for purposes of Rule 3-05 or Article 11 of Regulation
S-X under the Act, upon written notice thereof by the Company to the Holders,
the rights of the Holders to offer, sell or distribute any Registrable
Securities pursuant to the Shelf Registration Statement or a Demand Registration
or to require the Company to take action with respect to the registration or
sale of any Registrable Securities pursuant to the Shelf Registration
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Statement or a Demand Registration shall be suspended until the date on which
the Company has filed such reports or obtained and filed the financial
information required by Rule 3-05 or Article 11 of Regulation S-X to be included
or incorporated by reference, as applicable, in the Shelf Registration
Statement, and the Company shall notify the Holders as promptly as practicable
when such suspension is no longer required.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. REMEDIES. In addition to being entitled to exercise all rights
provided herein and granted by law, including recovery of damages, the Warrant
Holder and the Unit Holders shall be entitled to specific performance of the
rights under this Agreement. The Company 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.
SECTION 3.2. 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, in each case without the written consent of the Company and the Holders
of a majority of the Registrable Securities. No failure or delay by any party to
insist upon the strict performance of any covenant, duty, agreement or condition
of this Agreement or to exercise any right or remedy consequent upon any breach
thereof shall constitute waiver of any such breach or any other covenant, duty,
agreement or condition.
SECTION 3.4. NOTICES. All notices and other communications in connection with
this Agreement shall be made in writing by hand delivery, registered first-class
mail, telecopier, or air courier guaranteeing overnight delivery:
(a) if to any Unit Holder or Warrant Holder, to the address
for such Unit Holder or Warrant Holder set forth on the signature
page(s) hereto; and
(b) if to the Company, initially at 000 Xxx Xxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxxx 00000 (Attention: President), or to such other
address as the Company may hereafter specify in writing.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when received if
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
SECTION 3.5. SUCCESSORS AND ASSIGNS. Except as expressly provided in this
Agreement the rights and obligations of the Warrant Holder and the Unit Holders
under this Agreement shall not be assignable by the Warrant Holder or any Unit
Holder to any Person that is not a Warrant Holder or Unit Holder. This Agreement
shall be binding upon the parties hereto and their respective successors and
assigns.
SECTION 3.6. 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. Each party shall become
bound by this Agreement immediately upon affixing its signature hereto.
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SECTION 3.7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without regard to the
choice of law provisions thereof.
SECTION 3.8. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
SECTION 3.9. 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. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
SECTION 3.10. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 3.11. NO THIRD PARTY BENEFICIARIES. Nothing express or implied herein is
intended or shall be construed to confer upon any person or entity, other than
the parties hereto and their respective successors and assigns, any rights,
remedies or other benefits under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMPANY:
EDUCATION REALTY TRUST, INC.
By:
--------------------------------------
Xxxx X. Xxxxx
President and Chief Executive Officer
OPERATING PARTNERSHIP:
EDUCATION REALTY OPERATING
PARTNERSHIP, LP
By: Education Realty OP GP, Inc., its General Partner
By:
--------------------------------------
Name:
------------------------------------
Title: President
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
WARRANT HOLDER:
JPI INVESTMENT COMPANY, L.P.
By: JPI/H Limited Partnership, a Texas
limited Partnership, general partner
By: Xxxxxx XX LLC, a Texas limited
liability Company, general partner
Address:
By:
--------------------------------- --------------------------------
Telecopier ( ) Name:
--------------------- ------------------------------
Title:
-----------------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
UNIT HOLDERS:
Xxxxx & X'Xxxx, Inc. XXXXX & O'HARA, INC.
000 Xxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000 By:
Telecopier: (000) 000.0000 --------------------------------
Name: Xxxx X. Xxxxx
Title: President
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
JPI MULTIFAMILY INVESTMENTS L.P.
By: New GP LLC, a Delaware limited
liability company, its General Partner
Address: By:
--------------------- ---------------------------------------
Name:
----------------------------- --------------------------------------
Telecopier ( ) Title:
----------------- -------------------------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Address:
-------------------------- -------------------------------------
Xxxx X. Xxxxx
----------------------------------
Telecopier ( )
----------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Address:
-------------------------- ---------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------
Telecopier ( )
----------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Address:
------------------------- --------------------------------------
Xxxxx X. Xxxxxxxx
---------------------------------
Telecopier ( )
---------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Address:
---------------------------- -------------------------------------
Xxxxxxx X. Xxxxxx
------------------------------------
Telecopier ( )
------------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Address:
------------------------- -------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------
Telecopier ( )
---------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Address:
--------------------------- ------------------------------------
Xxxxxx X. Xxxx
-----------------------------------
Telecopier ( )
-----------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Address:
------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxx
--------------------------------------
Telecopier ( )
--------------------------
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