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EXHIBIT 10.45
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") made and
entered into as of this __ day of __________ ___, 1996 by and among BRANDYWINE
REALTY TRUST, a Maryland real estate investment trust (the "Company"), RAI REAL
ESTATE ADVISERS, INC. ("RAI"), as the voting trustee of a voting trust executed
by the Commonwealth of Pennsylvania State Employes' Retirement System as
shareholder and RAI as voting trustee dated as of November 6, 1996 (the "Voting
Trust").
BACKGROUND
Pursuant to a Contribution Agreement, dated November 6, 1996,
by and among, inter alia, the Company and the Voting Trust (the "Contribution
Agreement"), the Company has issued to the Voting Trust (a) ________ shares of
the Company's Series A Convertible Preferred Shares (the "Preferred Shares"),
par value $.01 per share, and may issue additional Preferred Shares on June 10,
1998, and December 31, 1999 (such issued and issuable Preferred Shares are
collectively referred to as the "Property Shares") and (b) a warrant (the
"Warrant") to purchase 400,000 shares of the Company's common shares of
beneficial interest par value $.01 per share (the "Common Stock").
Pursuant to a Securities Purchase Agreement dated as of
November 6, 1996 by and between the Company and the Voting Trust (the
"Securities Purchase Agreement"), the Company is obligated to issue to the
Voting Trust additional Common Stock or Preferred Shares (the "Additional
Shares").
To induce the Voting Trust to enter into the foregoing
transactions, the Company has agreed to provide it with the registration rights
set forth in this Agreement.
1. CERTAIN DEFINITIONS.
In addition to the other terms defined in this Agreement, the
following terms shall be defined as follows:
"Additional Holders" means the Persons who have registration
rights with respect to certain securities of the Company pursuant to either of
the Additional Registration Rights Agreements.
"Additional Registration Rights Agreements" means that certain
Registration Rights Agreement dated August 22, 1996 to which the Company is a
party and the Registration Rights Agreement which the Company will enter into
with Xxxxxx Xxxxxxx Institutional Fund, Inc. - U.S. Real Estate Portfolio and
Xxxxxx Xxxxxxx SICAV Subsidiary, SA.
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"Additional Securities" means those securities of the Company
which are or become subject to the registration provisions of either of the
Additional Registration Rights Agreements.
"Brokers Transactions" has the meaning ascribed to such term
pursuant to Rule 144 under the Securities Act.
"Business Day" means any day on which the American Stock
Exchange is open for trading.
"Closing Date" means the date of closing under the
Contribution Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the relevant time.
"Fair Market Value" means:
(a) If the Registrable Security is listed on a
national securities exchange or admitted to unlisted trading privileges on such
exchange or listed for trading on The NASDAQ Stock Market, the fair market value
shall be the last reported sale price of the Registrable Security on such
exchange or system on the last business day prior to the date the determination
of fair market value is made, or if no such sale is made on such day, the
average closing bid and asked prices of the Registrable Security for such day on
such exchange or system; or
(b) If the Registrable Security is not so listed or
admitted to unlisted trading privileges, the fair market value shall be the mean
of the last reported bid and asked prices reported by the National Quotation
Bureau, Inc., on the last business day prior to the date the determination of
fair market value is made; or
(c) If the Registrable Security is not so listed or
admitted to unlisted trading privileges and bid and asked prices are not so
reported, the fair market value per share shall be an amount, not less than 90%
of the book value per share of the Registrable Security as at the end of the
most recent fiscal year of the Company ending prior to the date the
determination of fair market value is made, determined in such reasonable manner
as may be prescribed in good faith by the Board of Trustees of the Company.
"Holders" means the Voting Trust for so long as (and to the
extent that) it owns any Registrable Securities, and its successors, assigns,
and direct and indirect transferees who become registered owners of Registrable
Securities or securities exercisable, exchangeable or convertible into
Registrable Securities.
"Outstanding" means with respect to any securities as of any
date, all such securities theretofore issued, except any such securities
theretofore converted, exercised or
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canceled or held by the issuer or any successor thereto (whether in its treasury
or not) or any affiliate of the issuer or any successor thereto.
"Person" means an individual, a partnership (general or
limited), corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
"Registrable Security(ies)" means (i) all or any portion of
the Additional Shares (to the extent they are shares of Common Stock), (ii) all
or any portion of any shares of Common Stock that may be issued upon conversion
of, or in exchange for, the Property Shares or the Additional Shares (to the
extent they are Preferred Shares), (iii) all or any portion of any shares of
Common Stock that may be issued upon the exercise of, or in exchange for, the
Warrant, (iv) any additional shares of Common Stock or other equity securities
of the Company issued or issuable after the Closing Date in respect of any such
securities (or other equity securities issued in respect thereof) by way of a
stock dividend or stock split, in connection with a combination, exchange,
reorganization, recapitalization or reclassification of Company securities, or
pursuant to a merger, division, consolidation or other similar business
transaction or combination involving the Company, and (v) any other shares of
Common Stock obtained in open market transactions or otherwise; provided that in
the case of equity securities other than Common Stock such securities are
registered under Section 12(b) or Section 12(g) of the Exchange Act; and further
provided that: as to any particular Registrable Securities, such securities
shall cease to constitute Registrable Securities (i) when a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of thereunder; or (ii) when such securities shall have ceased to be issued and
outstanding. Any time this Agreement requires the vote or consent of the Holder
of a "majority" or other stated percentage of the Registrable Securities, the
term Registrable Securities shall, solely for purposes of calculating such vote,
be deemed to include the Registrable Securities that could be issued under the
Preferred Shares and the Warrant and any other securities exercisable or
exchangeable for, or convertible into, Registrable Securities. The term
Registrable Securities shall not include the Preferred Shares or the Warrant.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following: (i) the
fees, disbursements and expenses of the Company's counsel(s), accountants, and
experts in connection with the registration under the Securities Act of
Registrable Securities; (ii) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus, any other offering document and amendments and supplements
thereto, and the mailing and delivering of copies thereof to the underwriters
and dealers, if any; (iii) the cost of printing or producing any agreement(s)
among underwriters, underwriting agreement(s) and blue sky or legal investment
memoranda, any selling agreements, and any other documents in connection
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with the offering, sale or delivery of Registrable Securities to be disposed of;
(iv) any other expenses in connection with the qualification of Registrable
Securities for offer and sale under state securities laws, including the fees
and disbursements of counsel for the underwriters in connection with such
qualification and in connection with any blue sky and legal investment surveys;
(v) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of Registrable
Securities to be disposed of and any blue sky registration or filing fees, and
(vi) the fees and expenses incurred in connection with the listing of
Registrable Securities on each securities exchange (or The NASDAQ Stock Market)
on which Company securities of the same class are then listed; provided,
however, that Registration Expenses with respect to any registration pursuant to
this Agreement shall not include (x) expenses incurred by any Holder in
connection with any offering, including the fees and expenses of counsel,
accountants, and experts retained by such Holder (other than the fees and
expenses of one counsel for the Holders as and to the extent provided in Article
10), (y) any underwriting discounts or commissions attributable to Registrable
Securities, or (z) any transfer taxes applicable to Registrable Securities.
"SEC" means the United States Securities and Exchange
Commission, or such other federal agency at the time having the principal
responsibility for administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
"Shelf Registration Statement" means a Shelf Registration
Statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers Common Stock on an appropriate form then permitted by the
SEC to be used for such registration and the sales contemplated to be made
thereby, under Rule 415 under the Securities Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such Registration
Statement, including pre- and post-effective amendments thereto, in each case
including the prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Shelf Registration" means a registration of Common Stock
effected pursuant to Section 2(b) hereof.
"Trading Day" means a day on which the principal securities
exchange or stock market on which the applicable security is traded is open for
the transaction of business.
2. DEMAND REGISTRATION; SHELF REGISTRATION.
(a) (i) A Holder or Holders may request at any time (by
written notice delivered to the Company) that the Company register under the
Securities Act all or any portion of the Registrable Securities held by (or then
issuable to) such Holder or Holders (the "Requesting Holders"), representing in
the aggregate not less than twenty percent of the Registrable
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Securities, for sale in the manner specified in such notice (including, but not
limited to, an underwritten public offering); provided, however, that no such
request may be made when the Voting Trust would be prohibited from selling
Registrable Securities pursuant to an effective registration statement under the
Securities Act by the terms of the Standstill Agreement, dated the Closing Date,
between the Company and the Voting Trust; provided further, however, that no
such request shall be made prior to one hundred twenty (120) days after the date
that the Company's Registration Statement on Form S-11 (File No. 333-13969)(the
"1996 Registration Statement") has been declared effective by the SEC. In each
such case, such notice shall specify the number of Registrable Securities for
which registration is requested, the proposed manner of disposition of such
securities, and the minimum price per share at which the Requesting Holders
would be willing to sell such securities in an underwritten offering. The
Company shall, within five (5) Business Days after its receipt of any Requesting
Holders' notice under this Section 2(a)(i), give written notice of such request
to all other Holders and all Additional Holders and afford them the opportunity
of including in the requested registration statement such of their Registrable
Securities or Additional Securities, as the case may be, as they shall specify
in a written notice given to the Company within twenty (20) days after their
receipt of the Company's notice. Within ten (10) Business Days after the
expiration of such twenty (20) day period, the Company shall notify all Holders
and all Additional Holders requesting registration of (A) the aggregate number
of Registrable Securities or Additional Securities, as the case may be, proposed
to be registered by all Holders and all Additional Holders, (B) the proposed
filing date of the registration statement, and (C) such other information
concerning the offering as any Holder or Additional Holder may have reasonably
requested. If the Holders of a majority in aggregate amount of the Registrable
Securities to be included in such offering shall have requested that such
offering be underwritten, the managing underwriter for such offering shall be
chosen by the Holders of a majority in aggregate amount of the Registrable
Securities being registered, with the consent of the Company, which consent
shall not be unreasonably withheld, not less than thirty (30) days prior to the
proposed filing date stated in the Company's notice, and the Company shall
thereupon promptly notify such Holders, and any Additional Holders to be
included in such offering, as to the identity of the managing underwriter, if
any, for the offering. On or before the 30th day prior to such anticipated
filing date, any Holder or Additional Holder may give written notice to the
Company and the managing underwriter specifying either that (A) Registrable
Securities or Additional Securities, as the case may be, of such Holder or
Additional Holder are to be included in the underwriting, on the same terms and
conditions as the securities otherwise being sold through the underwriters under
such registration or (B) such Registrable Securities or Additional Securities,
as the case may be, are to be registered pursuant to such registration statement
and sold in the open market without any underwriting, on terms and conditions
comparable to those normally applicable to offerings in reasonably similar
circumstances, regardless of the method of disposition originally specified in
Holder's or Additional Holder's request for registration. To the extent that any
or all of the Registrable Securities to be included in any registration pursuant
to this Section 2(a)(i) or any other provision of this Agreement are to be
issued upon conversion, exercise or exchange of other securities, there shall be
no obligation for any Holder to effect any such conversion, exercise or exchange
until immediately prior to the closing of the sale of such Registrable
Securities.
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(ii) The Company shall use its commercially
reasonable best efforts to file with the SEC within eighty (80) days (thirty
(30) days if the Company may use a Registration Statement on Form S-3 to
register such Registrable Securities) after the Company's receipt of the initial
Requesting Holders' written notice pursuant to Section 2(a)(i), a registration
statement for the public offering and sale, in accordance with the method of
disposition specified by such Holders, of the number of Registrable Securities
specified in such notice, and thereafter use its commercially reasonable best
efforts to cause such registration statement to become effective within sixty
(60) days after its filing. Such registration statement may be on Form S-1 or
Form S-11 or another appropriate form (including Form S-3) that the Company is
eligible to use and that is reasonably acceptable to the managing underwriter;
provided, however, that if any Form other than Form S-1 or Form S-11 is used in
an underwritten offering, upon the request of the managing underwriter, or the
selling shareholders, the prospectus included in the registration statement
shall be amplified to include such additional information as such persons may
reasonably request regarding the Company, its business and management
(including, without limitation, the information called for by Items 101, 102,
103, 201, 202, 301 and 303 of Regulation S-K under the Securities Act).
(iii) The Company shall not have any obligation
hereunder (A) to permit or participate in more than two offerings pursuant to
this Section 2(a), or (B) to register any Registrable Securities under this
Section 2(a) unless it shall have received requests from Holders to register at
least 20% of the aggregate Registrable Securities issued at the date hereof.
(iv) If the Company is required to use commercially
reasonable best efforts to register Registrable Securities and Additional
Securities in a registration initiated upon the demand of any Holder pursuant to
Section 2(a) of this Agreement and the managing underwriters for such offering
advise that the inclusion of all securities sought to be registered by the
Holders and Additional Holders may interfere with an orderly sale and
distribution of or may materially adversely affect the price of such offering,
then, unless all such Holders and Additional Holders otherwise notify the
Company in writing, the aggregate number of Registrable Securities and
Additional Securities included by the Holders and Additional Holders in such
offering shall be reduced to a number which the managing underwriters advise
will not likely have such effect and the maximum number of Registrable
Securities and Additional Securities able to be included in such offering by
each Holder and Additional Holder shall be reduced giving first preference to
all Registrable Securities before any Additional Securities are included and
thereafter pro rata (in accordance with such Holder's or Additional Holder's, as
the case may be, proportionate share of all Registrable Securities and
Additional Securities duly requested to be included in such registration).
(b) At any time during the 60-day period following the end of
any fiscal year of the Company, other than the fiscal year in which a
registration statement is to be filed pursuant to Section 2(a) (except that the
registration pursuant to a Deemed Additional Share Request shall not be subject
to such limitation), any Holder or Holders may request in writing that the
Company register under the Securities Act all or any portion of the Registrable
Securities held by (or then issuable to) such Requesting Holders for sale
pursuant to a Shelf Registration Statement; provided that any distribution or
sale pursuant to any such Shelf Registration shall be limited to Brokers'
Transactions or other transactions that do not involve
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an underwritten public offering. By closing under the Securities Purchase
Agreement, the Voting Trust shall be deemed to have made (as of the date of such
closing) a request under Section 2(b) (the "Deemed Additional Share Request")
that the Company register for sale pursuant to a Shelf Registration Statement
all Additional Shares (or, if applicable, all shares of Common Stock issuable
upon conversion of the Additional Shares). The Company shall, within five (5)
Business Days after its receipt of any Requesting Holders' notice under this
Section 2(b), give written notice of such request to all other Holders and all
Additional Holders and afford them the opportunity of including in the requested
Shelf Registration Statement such of their Registrable Securities or Additional
Securities, as the case may be, as they shall specify in a written notice given
to the Company within twenty (20) days after their receipt of the Company's
notice. The Company shall thereupon use its commercially reasonable best efforts
to file the Shelf Registration Statement with the SEC within sixty (60) days
after its receipt of the initial Requesting Holders' notice and to cause such
registration statement to be declared effective within sixty (60) days after its
filing (or in the case of the Deemed Additional Share Request, the earlier of 60
days after filing or March 31, 1997); provided, however, that the Company shall
not be required (A) to effect more than one registration pursuant to this
Section 2(b) in any fiscal year for Holders, or (B) to effect any registration
pursuant to this Section 2(b) during the fiscal year during which Registrable
Securities are registered pursuant to Section 2(a) of this Agreement, or (C) to
register any Registrable Securities under this Section 2(b) (other than pursuant
to the Deemed Additional Share Request) unless it shall receive requests from
Holders to register at least 10% of the aggregate Registrable Securities issued
at the date hereof. The Company shall use its commercially reasonable best
efforts to keep such Shelf Registration Statement (or, if required hereunder, a
successor Shelf Registration Statement filed pursuant to Section 2(d) below)
continuously effective in order to permit the prospectus forming a part thereof
to be usable by Holders and Additional Holders until all securities included in
such Shelf Registration Statement have ceased to be Registrable Securities or
Additional Securities, as the case may be, (the "Lapse Date").
(c) Notwithstanding any other provision of this Agreement, the
Company shall have the right to defer the filing or effectiveness of a
registration statement relating to any registration requested under Section 2(a)
for a reasonable period of time not to exceed 180 days if (x) the Company is, at
such time, working on an underwritten, primary public offering of its securities
and is advised by its managing underwriter(s) that such offering would in its or
their opinion be materially adversely affected by such filing; or (y) a prior
registration statement of the Company for an underwritten, primary public
offering by the Company of its securities was declared effective by the SEC less
than 120 days prior to the anticipated effective date of the requested
registration.
(d) If the Company is precluded by Rule 415 or any other
applicable rule under the Securities Act from including all Registrable
Securities and Additional Securities in any Shelf Registration or from keeping
any Shelf Registration Statement continuously effective from the filing date
thereof through the Lapse Date, the Company shall file such additional or
further Shelf Registration Statements, as may be required, so that, subject to
the other provisions of this Agreement, all Registrable Securities and
Additional Securities requested to be included are included on a continuously
effective Shelf Registration Statement for substantially all of the period from
the filing date of the first Shelf Registration Statement through the Lapse
Date.
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(e) Neither the Company nor any Person other than a Holder or
an Additional Holder shall be entitled to include any securities held by it or
him in any underwritten offering pursuant to Section 2(a) of this Agreement.
(f) No registration of Registrable Securities under this
Article 2 shall relieve the Company of its obligation (if any) to effect
registrations of Registrable Securities pursuant to Article 3.
3. INCIDENTAL REGISTRATION.
(a) Until all securities subject to this Agreement have ceased
to be Registrable Securities, if the Company proposes, other than pursuant to
Article 2 hereof and other than pursuant to the 1996 Registration Statement, to
register any of its Common Stock or other securities issued by it having terms
substantially similar to Registrable Securities or any successor securities
(collectively, "Other Securities") for public sale under the Securities Act
(whether proposed to be offered for sale by the Company or by any other Person)
on a form and in a manner which would permit registration of Registrable
Securities for sale to the public under the Securities Act, it will give prompt
written notice (which notice shall specify the intended method or methods of
disposition) to the Holders and the Additional Holders of its intention to do
so, and upon the written request of any Holder or Additional Holder delivered to
the Company within fifteen (15) Business Days after the giving of any such
notice (which request shall specify the number of Registrable Securities or
Additional Securities, as the case may be, intended to be disposed of by such
Holder or Additional Holder), the Company will use its commercially reasonable
best efforts to effect, in connection with the registration of the Other
Securities, the registration under the Securities Act of all Registrable
Securities and Additional Securities which the Company has been so requested to
register by Holders and Additional Holders; provided, however, that:
(i) if, at any time after giving such written notice
of its intention to register Other Securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such Other Securities,
the Company may, at its election, give written notice of such determination to
the Holders and Additional Holders requesting registration and thereupon the
Company shall be relieved of its obligation to register such Registrable
Securities and Additional Securities in connection with the registration of such
Other Securities (but not from its obligation to pay Registration Expenses to
the extent incurred in connection therewith as provided in Article 11), without
prejudice, however, to the rights (if any) of the Holders to request that such
registration be effected as a registration under Article 2; and
(ii) the Company will not be required to effect any
registration of Registrable Securities or Additional Securities pursuant to this
Article 3 in connection with a primary offering of securities by it if the
Company shall have been advised in writing (with a copy to the Holders
requesting registration) by a nationally recognized investment banking firm
(which may be the managing underwriter for the offering) selected by the Company
that, in such firm's opinion, a registration of Registrable Securities and
Additional Securities at that time may interfere with an orderly sale and
distribution of the securities being sold by the Company in such offering or
materially and adversely affect the price of such securities; provided, however,
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that if an offering of some but not all of the Registrable Securities and
Additional Securities requested to be registered by the Holders and Additional
Holders would not adversely affect the distribution or price of the securities
to be sold by the Company in the offering in the opinion of such firm or are
included in such offering notwithstanding any such opinion, the Company shall
only include such lesser amount of Registerable Securities and Additional
Securities and the aggregate number of Registerable Securities and Additional
Securities to be included in such offering by each Holder and Additional Holder
shall be allocated pro rata among the Holders and Additional Holders requesting
such registration on the basis of the percentage of the securities held by such
Holders and Additional Holders which have requested that such securities be
included; provided further, however, that a registration under this Article 3
pursuant to demand registration rights of any Additional Holders shall be
treated as a primary offering for purposes of this clause (ii) with the result
that the applicable Additional Holders shall be entitled to the same priority
with respect to the Holders to which the Company is entitled as provided above;
and
(iii) The Company shall not be required to give
notice of, or effect any registration of Registrable Securities under this
Article 3 incidental to, the registration of any of its securities in connection
with mergers, consolidations, acquisitions, exchange offers, subscription
offers, dividend reinvestment plans or stock options or other employee benefit
or compensation plans.
(b) No registration of Registrable Securities effected under
this Article 3 shall relieve the Company of its obligations (if any) to effect
registrations of Registrable Securities pursuant to Article 2.
4. HOLDBACKS AND OTHER RESTRICTIONS.
(a) Each Holder hereby covenants and agrees with the Company
that:
(i) such Holder shall not, if requested by the
managing underwriters in an underwritten offering that includes such Holder's
Registrable Securities, effect any public sale or distribution of securities of
the Company of the same class as the securities included in such registration
statement (or convertible into such class), including a sale pursuant to Rule
144(k) under the Securities Act (except as part of such underwritten
registration): (A) during the ninety (90)-day period (or such longer period of
not more than one hundred eighty (180) days if such longer period is also
required by the managing underwriters of the Company and all other Persons
having securities included in such registration) beginning on the effective date
of such registration statement, to the extent timely notified in writing by the
Company or the managing underwriters; and (B) in the event of a primary offering
by the Company, to the extent such Holder does not elect to sell such securities
in connection with such offering, during the period of distribution of the
Company's securities in such offering and during the period in which the
underwriting syndicate, if any, participates in the aftermarket. In any such
case the Company shall require the underwriters to notify the Company and the
Company, in turn, shall notify all Holders of Registrable Securities included in
the offering promptly after such participation ceases;
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(ii) such Holder shall not, during any period in
which any of his or its Registrable Securities are included in any effective
registration statement: (A) effect any stabilization transactions or engage in
any stabilization activity in connection with the Common Stock or other equity
securities of the Company in contravention of Rule 10b-7 under the Exchange Act;
(B) permit any Affiliated Purchaser (as that term is defined in Rule 10b-6 under
the Exchange Act) to bid for or purchase for any account in which such Holder
has a beneficial interest, or attempt to induce any other person to purchase,
any shares of Common Stock or Registrable Securities in contravention of Rule
10b-6 under the Exchange Act; or (C) offer or agree to pay, directly or
indirectly, to anyone any compensation for soliciting another to purchase, or
for purchasing (other than for such Holder's own account), any securities of the
Company on a national securities exchange in contravention of Rule 10b-2 under
the Exchange Act; and
(iii) such Holder shall, in the case of a
registration including Registrable Securities to be offered by it for sale
through Brokers Transactions, furnish each broker through whom such Holder
offers Registrable Securities such number of copies of the prospectus as the
broker may require and otherwise comply with the prospectus delivery
requirements under the Securities Act.
(b) The Company covenants and agrees with the Holders not to
effect any public or private sale or distribution (other than distributions
pursuant to employee benefit plans) of its securities, including a sale pursuant
to Regulation D under the Securities Act (or Section 4(2) thereof), during the
ten (10) day period prior to, and during the ninety (90) day period beginning
with, the effectiveness of a Registration Statement filed under Section 2(a)
hereof, to the extent timely requested in writing by the managing underwriters,
if any, or, if there be none, by the Holders of a majority in aggregate amount
of the Registrable Securities included on such registration statement for such
registration, except pursuant to registrations on Form X-0, Xxxx X-0 or any
successor form.
5. REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this
Agreement to use commercially reasonable best efforts to effect or cause a
registration as provided in this Agreement, the Company will:
(a) Use its commercially reasonable best efforts to prepare
and file with the SEC, a registration statement within the time periods
specified herein, and use its commercially reasonable best efforts to cause such
registration statement to become effective as promptly as practicable and to
remain effective under the Securities Act until (i) the Lapse Date with respect
to registrations pursuant to Section 2(b) and (ii) until the earlier of such
time as all securities covered thereby are no longer Registrable Securities or
one hundred and eighty (180) days after such registration statement becomes
effective with respect to registrations pursuant to Section 2(a), in every case
as any such period may be extended pursuant to Section 5(h) hereto.
(b) Prepare and file (and, if applicable, cause to become
effective) with the SEC, as promptly as practicable, such amendments,
post-effective amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be
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necessary to keep such registration statement effective for such period of time
required by Section 5(a) above, as such period may be extended pursuant to
Section 5(h) hereto.
(c) Comply in all material respects with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during the period during which any such registration
statement is required to be effective.
(d) Furnish to any Holder and any underwriter of Registrable
Securities, (i) such number of copies (including manually executed and conformed
copies) of such registration statement and of each amendment thereof and
supplement thereto (including all annexes, appendices, schedules and exhibits),
(ii) such number of copies of the prospectus used in connection with such
registration statement (including each preliminary prospectus, any summary
prospectus and the final prospectus), and (iii) such number of copies of other
documents, in each case as such Holder or such underwriter may reasonably
request.
(e) Use its commercially reasonable best efforts to register
or qualify all Registrable Securities covered by such registration statement
under the securities or "blue sky" laws of states of the United States as any
Holder or any underwriter shall reasonably request, and do any and all other
acts and things which may be reasonably requested by such Holder or such
underwriter to consummate the offering and disposition of Registrable Securities
in such jurisdictions; provided, however, that the Company shall not be required
to qualify generally to do business as a foreign corporation or as a dealer in
securities, subject itself to taxation, or consent to general service of process
in any jurisdiction wherein it is not then so qualified or subject.
(f) Use, as soon as practicable after the effectiveness of the
registration statement, commercially reasonable best efforts to cause the
Registrable Securities covered by such registration statement to be registered
with, or approved by, such other United States public, governmental or
regulatory authorities, if any, as may be required in connection with the
disposition of such Registrable Securities.
(g) Use its commercially reasonable best efforts to list the
Common Stock covered by such registration statement on any securities exchange
(or if applicable, The NASDAQ Stock Market) on which any securities of the
Company are then listed, if the listing of such Registrable Securities in then
permitted under the applicable rules of such exchange (or if applicable, The
NASDAQ Stock Market).
(h) Notify each Holder as promptly as practicable and, if
requested by any Holder, confirm such notification in writing, (i) when a
prospectus or any prospectus supplement has been filed with the SEC, and, with
respect to a registration statement or any post-effective amendment thereto,
when the same has been declared effective by the SEC, (ii) of the issuance by
the SEC of any stop order or the coming to the Company's attention of the
initiation of any proceedings for such or a similar purpose, (iii) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose, (iv) of the
occurrence of any event which requires the making of any changes to a
registration statement or related prospectus so that such documents will not
contain any untrue statement of a material
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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 the Company shall promptly prepare and
furnish to each Holder a reasonable number of copies of a supplemented or
amended prospectus such that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading), and (v) of the Company's determination
that the filing of a post-effective amendment to the Registration Statement
shall be necessary or appropriate. Upon the receipt of any notice from the
Company of the occurrence of any event of the kind described in clause (iv) or
(v) of this Section 5(h), the Holders shall forthwith discontinue any offer and
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until all Holders shall have received
copies of a supplemented or amended prospectus which is no longer defective and,
if so directed by the Company, shall deliver to the Company, at the Company's
expense, all copies (other than permanent file copies) of the defective
prospectus covering such Registrable Securities which are then in the Holders'
possession. If the Company shall provide any notice of the type referred to in
the preceding sentence, the period during which the registration statements are
required to be effective as set forth under Section 5(a) shall be extended by
the number of days from and including the date such notice is provided, to and
including the date when Holders shall have received copies of the corrected
prospectus.
(i) Enter into such agreements and take such other appropriate
actions as are customary and reasonably necessary to expedite or facilitate the
disposition of such Registrable Securities, and in that regard, deliver to the
Holders such documents and certificates as may be reasonably requested by any
Holder of the Registrable Securities being sold or, as applicable, the managing
underwriters, to evidence the Company's compliance with this Agreement
including, without limitation, using commercially reasonable best efforts to
cause its independent accountants to deliver to the Company's Board of Trustees
(and to the Holders of Registrable Securities being sold in any registration) an
accountants' comfort letter substantially similar to that in scope delivered in
an underwritten public offering and covering audited and interim financial
statements included in the registration statement or, if such letter cannot be
obtained through the exercise of commercially reasonable best efforts, cause its
independent accountants to deliver to the Company's Board of Trustees (and to
the Holders of Registrable Securities being sold in any registration) a comfort
letter based on negotiated procedures providing comfort with respect to the
Company's financial statements included or incorporated by reference in the
registration statement at the highest level permitted to be given by such
accountants under the then applicable standards of the Association of
Independent Certified Accountants with respect to such registration statement.
In addition, the Company shall furnish to the Holders of Registrable Securities
being included in any registration hereunder an opinion of counsel substantially
identical in substance and scope to that customarily delivered to underwriters
in public offerings.
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6. UNDERWRITING.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration hereunder, the
Company will enter into and perform its obligations under an underwriting
agreement with the underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, customary provisions
relating to indemnities and contribution and the provision of opinions of
counsel and accountants' letters.
(b) If any registration pursuant to Article 3 hereof shall
involve, in whole or in part, an underwritten offering, the Company may require
Registrable Securities requested to be registered pursuant to Article 3 to be
included in such underwriting on the same terms and conditions as shall be
applicable to the securities being sold through underwriters under such
registration. In such case, each Holder requesting registration shall be a party
to any such underwriting agreement. Such agreement shall contain such
representations and warranties by the Holders requesting registration and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, provisions relating to indemnities and contribution.
(c) In any offering of Registrable Securities pursuant to a
registration hereunder, each Holder requesting registration shall also enter
into such additional or other agreements as may be customary in such
transactions, which agreements may contain, among other provisions, such
representations and warranties as the Company or the underwriters of such
offering may reasonably request (including, without limitation, those concerning
such Holder, its Registrable Securities, such Holder's intended plan of
distribution and any other information supplied by it to the Company for use in
such registration statement), and customary provisions relating to indemnities
and contribution.
7. RULE 144.
The Company shall use commercially reasonable best efforts to
take all actions necessary to comply with the filing requirements described in
Rule 144(c)(1) or any successor thereto so as to enable the Holders to sell
Registrable Securities without registration under the Securities Act. Upon the
written request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with the filing requirements under Rule
144(c)(1) or any successor thereto.
8. PREPARATION; REASONABLE INVESTIGATION; INFORMATION.
In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act, (a) the Company will give the Holders and the underwriters, if any, and
their respective counsel and accountants, drafts of such registration statement
for their review and comment prior to filing and (during normal business hours
and subject to such reasonable limitations as the Company may impose to prevent
disruption of its business) such reasonable and customary access to its books
and records and such opportunities to discuss the business of the Company with
its officers and the independent
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public accountants who have certified its financial statements as shall be
necessary, in the reasonable opinion of the Holders of a majority in aggregate
amount of the Registrable Securities being registered and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act and (b) as a condition precedent to including any
Registrable Securities of any Holder in any such registration, the Company may
require such Holder to furnish the Company such information regarding such
Holder and the distribution of such securities as the Company may from time to
time reasonably request in writing or as shall be required by law or the SEC in
connection with any registration; provided, however, that, upon the reasonable
request of the supplier of any such information, the recipient thereof shall
enter into a confidentiality agreement respecting such information in customary
form for an underwritten public offering.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) In the case of each offering of Registrable Securities
made pursuant to this Agreement, the Company shall indemnify and hold harmless
each Holder, its officers, directors and trustees, each underwriter of
Registrable Securities so offered and each Person, if any, who controls any of
the foregoing Persons within the meaning of the Securities Act ("Holder
Indemnitees"), from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any of them
may become subject, under the Securities Act or otherwise, including any amount
paid in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claims and defending any actions,
insofar as such losses, claims, damages, liabilities or actions shall arise out
of, or shall be based upon, any violation or alleged violation by the Company of
the Securities Act, or relating to action taken or action or inaction required
of the Company in connection with such offering, or shall arise out of, or shall
be based upon, any untrue statement or alleged untrue statement of a material
fact contained in the registration statement (or in any preliminary or final
prospectus included therein) relating to the offering and sale of such
Registrable Securities, or any amendment thereof or supplement thereto, or in
any document incorporated by reference therein, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, that the
Company shall not be liable to any Holder Indemnitee in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement, or any
omission, if such statement or omission shall have been made in reliance upon
and in conformity with information furnished to the Company in writing by or on
behalf of such Holder specifically for use in the preparation of the
registration statement (or in any preliminary or final prospectus included
therein), or any amendment thereof or supplement thereto. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Holder and shall survive the transfer of such securities. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Holder Indemnitee.
(b) In the case of each offering of Registrable Securities
made pursuant to this Agreement, each Holder, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and trustees, and each
Person, if any, who controls any of the foregoing within the meaning of the
Securities Act and (if requested by the underwriters) each underwriter
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who participates in the offering and each Person, if any, who controls any such
underwriter within the meaning of the Securities Act (the "Company
Indemnitees"), from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any of them
may become subject, under the Securities Act or otherwise, including any amount
paid in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claims and defending any actions,
insofar as any such losses, claims, damages, liabilities or actions shall arise
out of, or shall be based upon, any violation or alleged violation by such
Holder of the Securities Act, any blue sky laws, securities laws or other
applicable laws of any state or country in which the Registrable Securities are
offered and relating to action taken or action or inaction required of such
Holder in connection with such offering, or shall arise out of, or shall be
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) relating to the offering and sale of such
Registrable Securities or any amendment thereof or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that such untrue statement is contained in, or
such fact is omitted from, information furnished in writing to the Company by or
on behalf of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus included
therein). The liability of each Holder under such indemnity provision (and under
Section 9(d) below) shall be limited to an amount equal to the total net
proceeds received by such Holder from such offering. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company and shall survive the transfer of such securities. The foregoing
indemnity is in addition to any liability which Holder may otherwise have to any
Company Indemnitee.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Article 9, such Person (the
"indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 9(a) or (b) shall be available to any
person who shall fail to give notice as provided in this Section 9(c) if the
indemnifying party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 9(a) or (b). In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred the fees and expenses of the counsel retained by the
indemnified party in the event (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 indemnifying party and the indemnified party and
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representation of both parties by the same counsel, in the written opinion of
such 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 for all such indemnified parties. Such firm shall be designated in
writing by the Holders of a majority in aggregate Fair Market Value of the then
Outstanding Registrable Securities in the case of parties indemnified pursuant
to Section 9(a) and by the Company in the case of parties indemnified pursuant
to Section 9(b). 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 judgement for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Article 9 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 9(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
or if the indemnified party failed to give the notice required under Section
9(c) above, then each indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in proportion as is
appropriate to reflect not only both the relative benefits received by such
party (as compared to the benefits received by all other parties) from the
offering in respect of which indemnity is sought, but also the relative fault of
all parties in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by a party shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by it bear to the total amounts (including, in the case of
any underwriter, underwriting commission and discounts) received by each other
party. Relative fault 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 party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to above shall be deemed to include 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 subsection (d),
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
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10. EXPENSES.
In connection with any registration under this Agreement, the
Company shall pay all Registration Expenses. In addition, in connection with
each registration, the Company shall pay the reasonable fees and expenses of one
counsel to represent the interests of the Holders selling Registrable Securities
in such registration. Notwithstanding the foregoing, in the event that any
Holder or Holders require the Company to conduct an underwritten public offering
of Registrable Securities pursuant to Section 2(a) prior to 12 months after the
date hereof, each such Holder or Holders shall pay its pro rata share of all
Registration Expenses.
11. NOTICES.
Except as otherwise provided below, whenever it is provided in
this Agreement that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties hereto, or whenever any of the parties hereto, desires to provide to or
serve upon the other party any other communication with respect to this
Agreement, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be delivered in person, mailed
by registered or certified mail (return receipt requested) or sent by overnight
courier service or via facsimile transmission (which is confirmed), as follows:
(a) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Article 11, which address initially is, with respect to the Voting Trust, the
address set forth in the Securities Purchase Agreement; and (b) if to the
Company, initially at the address set forth in the Securities Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Article 11. The furnishing of any notice required
hereunder may be waived in writing by the party entitled to receive such notice.
Every notice, demand, request, consent, approval, declaration or other
communication hereunder shall be deemed to have been duly furnished or served on
the party to which it is addressed, in the case of delivery in person or by
facsimile, on the date when sent (with receipt personally acknowledged in the
case of telecopied notice), in the case of overnight mail, on the day after it
is sent and in all other cases, five business days after it is sent. Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
12. ENTIRE AGREEMENT.
This Agreement represents the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes any and all prior oral and written agreements, arrangements and
understandings among the parties hereto with respect to such subject matter; and
this Agreement can be amended, supplemented or changed, and any provision hereof
can be waived or a departure from any provision hereof can be consented to, only
by a written instrument making specific reference to this Agreement signed by
the Company and the Holders of at least 80% of the Registrable Securities then
outstanding; provided that any amendment that adversely affects the rights of
any Holder must be signed by the adversely
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affected Holder; provided further that any waiver must be signed by the party
entitled to the benefit of the term or matter being waived.
13. ARTICLE HEADINGS.
The article headings contained in this Agreement are for
general reference purposes only and shall not affect in any manner the meaning,
interpretation or construction of the terms or other provisions of this
Agreement.
14. APPLICABLE LAW.
This Agreement shall be governed by, construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania applicable to
contracts to be made, executed, delivered and performed wholly within such state
and, in any case, without regard to the conflicts of law principles of such
state.
15. SEVERABILITY.
If at any time subsequent to the date hereof, any provision of
this Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon and shall not impair the enforceability of any other provision of this
Agreement.
16. EQUITABLE REMEDIES.
The parties hereto agree that irreparable harm would occur in
the event that any of the agreements and provisions of this Agreement were not
performed fully by the parties hereto in accordance with their specific terms or
conditions or were otherwise breached, and that money damages are an inadequate
remedy for breach of this Agreement because of the difficulty of ascertaining
and quantifying the amount of damage that will be suffered by the parties hereto
in the event that this Agreement is not performed in accordance with its terms
or conditions or is otherwise breached. It is accordingly hereby agreed that the
parties hereto shall be entitled to an injunction or injunctions to restrain,
enjoin and prevent breaches of this Agreement by the other parties and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, such remedy being in addition to and
not in lieu of, any other rights and remedies to which the other parties are
entitled to at law or in equity.
17. NO WAIVER.
The failure of any party at any time or times to require
performance of any provision hereof shall not affect the right at a later time
to enforce the same. No waiver by any party of any condition, and no breach of
any provision, term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
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18. COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one and the same original instrument.
19. THIRD PARTY BENEFICIARIES; SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding
upon the successors, assigns and transferees of each of the parties hereto; and;
provided that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Securities in violation of the terms of the
Securities Purchase Agreement, the Warrant, the Standstill Agreement of even
date herewith between the Company and the Voting Trust, the Contribution
Agreement or applicable law. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registerable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement.
21. NON-RECOURSE.
No recourse shall be had for any obligation of the Company
hereunder, or for any claim based thereon or otherwise in respect thereof,
against any past, present or future trustee, shareholder, officer or employee of
the Company, whether by virtue of any statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such other liability
being expressly waived and released by each other party hereto.
22. OTHER REGISTRATION RIGHTS AGREEMENTS.
The Company represents and warrants to the Holder that it (i)
has not granted any registration rights to any Person other than to the
Additional Holders pursuant to the Additional Registration Rights Agreements,
and (ii) has caused to be amended all agreements relating to registration rights
to which it is a party so that such agreements do not conflict with this
Agreement, including without limitation Sections 2(a)(iv) and 3(a)(ii) hereof.
The Company covenants and agrees that it will not grant any Person any
registration rights that are in conflict with this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the date first above written.
BRANDYWINE REALTY TRUST
By:________________________________
Xxxxxx X. Xxxxxxx, President
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RAI REAL ESTATE ADVISERS, INC.,
as voting trustee of a voting trust dated
November 6, 1996.
By:___________________________________
Title:
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