EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of December 22, 1997
by and between
NORTHSTAR CAPITAL INVESTMENT CORP.
as the Company,
and
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
as the Initial Purchaser
This Registration Rights Agreement is made and entered into as of December
22, 1997, by and between NorthStar Capital Investment Corp., a Maryland
corporation (the "Company"), and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc. (the
"Initial Purchaser").
This Agreement is entered into pursuant to the purchase agreement (the
"Purchase Agreement"), dated December 17, 1997, between the Company and the
Initial Purchaser. In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
provided for in this Agreement to the Initial Purchaser and its direct and
indirect transferees. The execution of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
AFFILIATE: As to any specified person shall mean any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
AGREEMENT: This Registration Rights Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
BUSINESS DAY: With respect to any act to be performed hereunder, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York or other applicable place where such
act is to occur are authorized or obligated by applicable law, regulation or
executive order to close.
CLOSING DATE: December 22, 1997, or such other time or such other date as
the Initial Purchaser and the Company may agree.
COMMISSION: The United States Securities and Exchange Commission.
COMMON STOCK: Common stock, $0.01 par value per share, of the Company.
COMPANY: NorthStar Capital Investment Corp., a Maryland corporation, and
any successor corporation thereto.
CONTROLLING PERSON: As defined in Section 8(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission thereunder.
HOLDER: Each registered holder of any Registrable Shares from time to
time, including the Initial Purchaser and its Affiliates.
INITIAL PURCHASER: NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.
NASD: National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The Offering Memorandum of the Company dated December
17, 1997 pursuant to which the Shares are offered and sold.
OPERATING PARTNERSHIP: NorthStar Partnership, L.P., a Delaware limited
partnership for which the Company serves as sole general partner.
PERSON: An individual, partnership, corporation, trust, or unincorporated
organization, or government and agency or political subdivision thereof.
PROCEEDING: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or, to the knowledge of the person subject thereto,
threatened.
PROSPECTUS: The prospectus included in any Registration Statement,
including any preliminary Prospectus, and all other amendments and supplements
to any such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
PURCHASE AGREEMENT: As defined in the preamble.
REDEMPTION SHARES: Up to 536,193 shares of Common Stock issuable upon
redemption of up to 536,193 Units issued to NorthStar Capital Partners, LLC
pursuant to the terms of the Agreement of Limited Partnership of the Operating
Partnership.
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REGISTER, REGISTERED and REGISTRATION: Such terms shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
REGISTRABLE SHARES: The Shares and the Redemption Shares, upon original
issuance thereof, and at all times subsequent thereto, until, in the case of any
Share or Redemption Share, the earliest to occur of (i) the date on which it has
been registered effectively pursuant to the Securities Act and disposed of in
accordance with the Registration Statement relating to it, (ii) the date on
which either it is transferred in compliance with Rule 144 (or any similar
provisions then in effect) or is eligible for resale pursuant to Rule 144(k)
promulgated by the Commission pursuant to the Securities Act or (iii) the date
on which it is eligible for resale, without restriction, pursuant to an
available exemption from registration under the Securities Act, or (iv) the date
on which it is sold to the Company.
REGISTRATION EXPENSES: Any and all expenses incident to performance of or
compliance with this Agreement, including without limitation: (i) all
Commission, stock exchange, NASD registration, listing and filing fees, (ii) all
fees and expenses incurred in connection with compliance with federal or state
securities or blue sky laws (including any registration, listing and filing fees
and reasonable fees and disbursements of counsel in connection with blue sky
qualification of any of the Registrable Shares and the preparation of a Blue Sky
Memorandum and compliance with the rules of the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, duplicating,
printing, delivering and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements, certificates and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees and expenses
incurred in connection with the listing of any of the Registrable Shares on any
securities exchange or The Nasdaq Stock Market pursuant to SECTION 6(K) hereof,
(v) the fees and disbursements of counsel for the Company and of the independent
public accountants (including without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance) of
the Company (provided that Registration Expenses shall not include the fees and
expenses of any counsel to the Holders) and (vi) any fees and disbursements
customarily paid by issuers or sellers of securities (including the fees and
expenses of any experts retained by the Company in connection with any
Registration Statement), but excluding brokers' commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable Shares by a Holder.
REGISTRATION STATEMENT: Any registration statement of the Company that
covers the resale of any of the Registrable Shares pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
RULE 144: Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
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RULE 144A: Rule 144A promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
RULE 158: Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
RULE 424: Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
SHARES: The shares of Common Stock being offered and sold pursuant to the
terms and conditions of the Purchase Agreement.
UNDERWRITTEN OFFERING: A sale of securities of the Company to an
underwriter or underwriters for reoffering to the public.
UNITS: Units of limited partnership interest in the Operating Partnership.
2. SHELF REGISTRATION. As set forth in Section 6 hereof, the Company agrees
to file with the Commission as soon as reasonably practicable, but in no event
later than 90 days after the date of this Agreement, one or more shelf
Registration Statements with respect to the sale from time to time by the
Holders of any and all Registrable Shares.
3. EXPENSES. As between the Company and the Holders, the Company shall pay
all Registration Expenses in connection with the registration of the shares
pursuant to this Agreement. The Holder or Holders shall pay all broker's
commissions and transfer taxes, if any, and any other expense not specifically
allocated to the Company pursuant to this Agreement relating to the sale or
disposition of such Holder's Registrable Shares pursuant to any Registration
Statement.
4. RULES 144 AND 144A. The Company shall file the reports required to be
filed by it under the Securities Act and the Exchange Act in a timely manner in
accordance with Rule 144, and, prior to the effectiveness of the Registration
Statement, if it is not required to file such reports, will make available other
information as required by, and so long as necessary to permit sales of the
Registrable Shares pursuant to, Rule 144A.
5. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to any
registration pursuant to this Agreement, the Company shall use its best efforts
to effect or cause to be
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effected the registration of the Registrable Shares under the Securities Act to
permit the sale of such Registrable Shares by the Holder or Holders in
accordance with customary methods of sale or distribution, including through
brokers' transactions and block trades, as well as any other intended method or
methods of distribution reasonably requested by the Initial Purchaser or any
Holder by notice to the Company prior to the filing of the Registration
Statement, and the Company shall:
(a) prepare and file with the Commission, as specified in this Agreement,
a Registration Statement, which Registration Statement shall comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the Commission to be filed
therewith, and use its best efforts to cause such Registration Statement to
become effective as soon as possible after filing and remain effective, subject
to Section 7 hereof, until the earliest to occur of (i) the second annual
anniversary of the latest date of original issuance of the Shares, (ii) such
time as all outstanding Registrable Shares have been sold pursuant to a
Registration Statement or have been transferred pursuant to Rule 144 or
otherwise transferred in a manner that results in the transferred security being
delivered not being subject to transfer restrictions under the Securities Act,
(iii) such time as, in the opinion of counsel to the Company, all outstanding
Registrable Shares held by Persons who are not Affiliates of the Company may be
resold without registration under the Securities Act pursuant to Rule 144(k) (or
any successor or analogous rule) under the Securities Act or (iv) there are no
longer any outstanding Registrable Securities.
(b) subject to SECTION 6(H) hereof, prepare and file with the Commission
such amendments and post-effective amendments to each such Registration
Statement as may be necessary to keep such Registration Statement effective for
the period described in SECTION 6(A); cause each such Prospectus contained
therein to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 or any similar rule that may be
adopted under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holder thereof;
(c) furnish to any Holder named in any Prospectus without charge, as many
copies of such Prospectus, and any amendment or supplement thereto and such
other documents as such Holder may reasonably request, in order to facilitate
the public sale or other disposition of the Registrable Shares; the Company
consents to the use of any such Prospectus by such Holder in connection with the
offering and sale of the Registrable Shares covered by any such Prospectus;
(d) use its best efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Shares by the time the
applicable Registration Statement is declared effective by the Commission under
all applicable state securities or "blue sky" laws of such jurisdictions as the
Initial Purchaser or any Holder shall reasonably request in writing, keep each
such registration or qualification or exemption effective during the period such
Registration Statement is required to be kept effective pursuant to Section 6(a)
and do any and all other acts and things which may be reasonably necessary or
advisable to enable each Holder to
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consummate the disposition in each such jurisdiction of such Registrable Shares
owned by such Holder; PROVIDED, HOWEVER, that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction or to register as a
broker or dealer in such jurisdiction where it would not otherwise be required
to qualify or register but for this SECTION 6(D), (ii) subject itself to
taxation in any such jurisdiction, or (iii) submit to the general service of
process in any such jurisdiction;
(e) notify the Initial Purchaser and each Holder promptly and, if
requested by the Initial Purchaser or any Holder, confirm such advice in writing
(i) when a Registration Statement has become effective and when any post-
effective amendments and supplements thereto become effective, (ii) of the
issuance by the Commission or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, and (iii) of the happening of any event during
the period a Registration Statement is effective as a result of which such
Registration Statement or the related Prospectus contains any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading (which advice
shall be accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made);
(f) during the period of time referred to in Section 6(a), use its
reasonable efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of any enjoining order suspending the use or effectiveness of a
Registration Statement or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Shares for sale in any
jurisdiction, at the earliest possible moment;
(g) upon request, furnish to each requesting Holder, without charge, at
least one conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) except as provided in Section 7 hereof, upon the occurrence of any
event contemplated by SECTION 6(E) (III) hereof, use its best efforts to
promptly prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Shares, such Prospectus will not contain
any 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
the light of the circumstances under which they were made, not misleading;
(i) if requested by the representative underwriters, if any, or any
Holders of Registrable Shares being sold in connection with an underwritten
offering, (i) promptly incorporate in a prospectus supplement or post-effective
amendment such information as the representative of the underwriters, if any, or
such Holders indicate relates to them or otherwise reasonably request be
included therein, and (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has
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received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(j) in connection with an Underwritten Offering of Registrable Shares,
make available to inspection by representatives of the Holders and the
representative of any underwriters participating in any disposition pursuant to
a Registration Statement and any special counsel or accountant retained by such
Holders or underwriters, all financial and other records, pertinent corporate
documents and properties of the Company and cause the respective officers,
directors and employees of the Company to supply all information reasonably
requested by any such representatives, the representative of the underwriters,
the special counsel or accountants in connection with a Registration Statement;
PROVIDED, HOWEVER, that such records, documents or information which the Company
determines, in good faith, to be confidential and notifies such representatives,
representative of the underwriters, special counsel or accountants are
confidential shall be kept confidential and shall not be disclosed by the
representatives, representative of the underwriters, special counsel or
accountants unless (i) subject to the provisions of Section 7 hereof, the
disclosure of such records, documents or information is necessary to avoid or
correct a misstatement or omission in a Registration Statement or Prospectus,
(ii) the release of such records, documents or information is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction, or (iii)
such records, documents or information have been generally made available to the
public and provided, that the foregoing inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf of the Holders
and the other parties entitled thereto by one counsel designated by and on
behalf of such Holders and other parties reasonably acceptable to the Company;
(k) if the Company has listed its Common Stock on an exchange or market,
use its best efforts (including, without limitation, seeking to cure any
deficiencies (within the Company's control) cited by the exchange or market in
the Company's listing application) to list all Registrable Shares on such
exchange or market;
(l) prepare and file in a timely manner all documents and reports pursuant
to the Exchange Act which are incorporated by reference into any Registration
Statement;
(m) provide a CUSIP number for all Registrable Shares, not later than the
effective date of the Registration Statement;
(n) use its best efforts to comply with all applicable rules and
regulations of the Commission and make generally available to its
securityholders, as soon as reasonably practicable, earnings statements covering
at least 12 months which satisfy the provisions of Section 1l(a) of the
Securities Act and Rule 158 (or any similar rule promulgated under the
Securities Act) thereunder;
(o) provide and cause to be maintained a transfer agent for all
Registrable Shares covered by any Registration Statement from and after a date
not later than the effective date of such Registration Statement;
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(p) in connection with any sale or transfer of the Registrable Shares that
will result in such securities no longer being restricted from resale without
registration under the Securities Act, cooperate with the Holders and the
representative of the underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing the Registrable Shares to be sold,
which certificates shall not bear any restrictive legends, and to enable such
Registrable Shares to be in such denominations and registered in such names as
the representative of the underwriters, if any, or Holders may request at least
two Business Days prior to any sale of the Registrable Shares; and
(q) upon effectiveness of the first Registration Statement filed
hereunder, the Company will take such actions and make such filings as are
necessary to effect the registration of the Common Stock under the Exchange Act
simultaneously with or immediately following the effectiveness of the
Registration Statement.
The Company may require each Holder to furnish to the Company such
information regarding the proposed distribution by such Holder of Registrable
Shares as the Company may from time to time reasonably request in writing and no
Holder shall be entitled to be named as a selling securityholder in any
Registration Statement and no Holder shall be entitled to use the Prospectus
forming a part thereof if such Holder does not provide such information to the
Company.
Upon receipt of written notice from the Company of the happening of any
event of the kind described in SECTION 6(E)(III) hereof, the Holders will
immediately discontinue disposition of Registrable Shares pursuant to a
Registration Statement until the Holders' receipt of the copies of a
supplemented or amended Prospectus. If so requested by the Company, the Holders
will deliver to the Company (at the expense of the Company) all copies in their
possession, other than permanent file copies then in the Holders' possession, of
the Prospectus covering such Registrable Shares current at the time of receipt
of such notice.
6. BLACK-OUT PERIOD. Subject to the provision of this Section 7, following
the effectiveness of a Registration Statement (and the filings with any state
securities commissions), the Company, by written notice to the Initial Purchaser
and to the Holders, may direct the Holders to suspend sales of the Registrable
Shares pursuant to the Registration Statement, if any of the following events
shall occur: (i) an Underwritten Offering by the Company where the Company is
advised by the representative of underwriters for such Underwritten Offering
that the sale of Registrable Shares pursuant to the Registration Statement would
have a material adverse effect on the Company's primary offering; or (ii)
pending negotiations relating to, or consummation of, a transaction or the
occurrence of an event that requires additional disclosure of material
information by the Company in the Registration Statement and which has not been
so disclosed; or (iii) a material corporate transaction is pending or has
occurred, the disclosure of which should be set forth in the Registration
Statement and the Board of Directors of the Company shall have determined in
good faith would not be in the best interests of the Company and its
stockholders. Upon the occurrence of such event, the Company shall use its best
efforts to cause the Registration Statement to become effective or to promptly
amend or supplement the Registration
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Statement on a post-effective basis, as applicable, so as to permit the Holders
to resume sales of the Registrable Shares.
In the case of an event which causes the Company to suspend the
effectiveness of a Registration Statement (a "Suspension Event"), the Company
may give written notice (a "Suspension Notice") to the Holders at the addresses
set forth in the stock transfer records of the Company and to the Initial
Purchaser (Attention: Revel Horsey) to suspend sales of the Registrable Shares
so that the Company may amend or update the Registration Statement; provided,
however, that such suspension shall continue only for so long as the Suspension
Event or its effect is continuing and the Company is taking all reasonable steps
to terminate suspension of the effectiveness of the Registration Statement as
promptly as possible. The Holders shall not effect any sales of the Registrable
Shares pursuant to such Registration Statement at any time after receipt of a
Suspension Notice from the Company (and prior to receipt of an End of Suspension
Notice (defined below)). If so requested by the Company, the Holders will
deliver to the Company (at the expense of the Company) all copies in their
possession, other than permanent file copies then in the Holders' possession, of
the Prospectus covering such Registrable Shares at the time of receipt of the
Suspension Notice. The Holders may recommence effecting sales of the
Registrable Shares pursuant to the Registration Statement (or such filings)
following further notice to such effect (an "End of Suspension Notice") from the
Company, which End of Suspension Notice shall be given by the Company to the
Holders and the Initial Purchaser in the manner described above promptly
following the conclusion of any Suspension Event.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless (i) the Initial Purchaser, (ii) each Holder, (iii) each Person, if
any, who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) any of the foregoing (any of the persons
referred to in this clause (iii) being hereinafter referred to as a "controlling
person"), and (iv) the respective officers, directors, partners, employees,
representatives and agents of the Initial Purchaser and each Holder or any
controlling person as follows:
(i) from and against any and all loss, claim, liability and ,
damage whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement (or
any amendment thereto) pursuant to which Registrable Shares were registered
under the Securities Act including all documents incorporated therein by
reference, or the omission or alleged omission 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 were made, not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that such indemnity with respect to any
Registration
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Statement or Prospectus shall not inure to the benefit of any Holder or the
Initial Purchaser (or any controlling person thereof) to the extent that any
such loss, claim, liability, damage or expense arises out of such indemnified
person's failure to send or give a copy of the revised Registration Statement or
final Prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Shares to such Person if such statement or omission was corrected in such
revised Registration Statement or such final Prospectus and the Company shall
have made available to such indemnified person a sufficient number of copies of
such revised Registration Statement or such final Prospectus in a timely manner
so as to permit such Holder or the Initial Purchaser to send or give a copy of
the revised Registration Statement or such final Prospectus containing such
correction prior to the written confirmation of the purchase and sale of such
Registrable Shares;
(ii) from and against any and all loss, liability, claim and,
damage whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) from and against any and all expense reasonably incurred
(including reasonable fees and disbursements of counsel), in investigating,
preparing or defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, in each case whether
or not a party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement does not apply to any
Holder with respect to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(b) INDEMNIFICATION BY HOLDERS. Each Holder, on a pro rata basis, agrees
to indemnify and hold harmless the Company, and directors, officers, partners,
employees, representatives and agents (including each officer of the Company who
signed the Registration Statement), and each Person, if any, who controls the
Company, within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any and all loss, liability, claim, damage and
expenses described in the indemnity contained in SECTION 8(A) hereof (PROVIDED,
HOWEVER, that any settlement described in SECTION 8(A) (II) hereof is effected
with the written consent of such Holder), as incurred, but only with respect to
such untrue statements or omissions, or alleged untrue statements or omissions,
made in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Holder expressly for use in
such Registration Statement (or any amendment thereto) or such Prospectus
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(or any amendment or supplement thereto), and PROVIDED FURTHER, that no Holder
shall be liable for any amount in excess of the net proceeds received by such
Holder from the sale of such Holder's Registrable Shares pursuant to a
Registration Statement or a Prospectus, as the case may be.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Each indemnified party shall
give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have under this indemnity agreement except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice. If the indemnifying party so elects within a reasonable time
after receipt of such notice, the indemnifying party may assume the defense of
such action or proceeding at such indemnifying party's own expense with counsel
chosen by the indemnifying party and approved by the indemnified parties
defendant in such action or proceeding, which approval shall not be unreasonably
withheld; PROVIDED, HOWEVER, that, if such indemnified party or parties
reasonably determined that a conflict of interest exists where it is advisable
for such indemnified party or parties to be represented by separate counsel or
that, upon advice of counsel, there may be legal defenses available to them
which are different from or in addition to those available to the indemnifying
party, then the indemnifying party shall not be entitled to assume such defense
and the indemnified party or parties shall be entitled to one separate counsel
(and any necessary local counsel) at the indemnifying party's expense. If an
indemnifying party is not entitled to assume the defense of such action or
proceeding as a result of the proviso to the preceding sentence, such
indemnifying party's counsel shall be entitled to conduct such indemnifying
party's defense and counsel for the indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or parties, it being
understood that both such counsel will cooperate with each other to conduct the
defense of such action or proceeding as efficiently as possible. If an
indemnifying party is not so entitled to assume the defense of such action or
does not assume such defense, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party or parties will pay
the reasonable fees and expenses of not more than one counsel (and any necessary
local counsel) for the indemnified party or parties. In such event, however, no
indemnifying party will be liable for any settlement effected without the
written consent of such indemnifying party. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into a settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying party
shall not be liable for any fees and expenses for counsel for the indemnified
parties incurred thereafter in connection with such action or proceeding.
(d) CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this SECTION 8 is for any reason held to be unenforceable, unavailable or
insufficient although applicable in accordance with it terms; the Company and a
Holder shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
the
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Company and the Holder in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Holder on the other
(taking into consideration the fact that the provisions of the registration
rights hereunder are a material inducement to the Initial Purchaser, and the
Holders to purchase the Registrable Shares), in connection with the statement or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. Relative
fault shall be determined by reference to, among other things, whether an untrue
or alleged untrue statement of a material fact or an omission or alleged
omission of a material fact relates to information supplied by or available to
the Company on the one hand, or the Holder, on the other hand, and by the
parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the foregoing,
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. No Holder shall be
liable for any amount in excess of the net proceeds received from such Holder
from the sale of such Holder's Registrable Shares pursuant to a Registration
Statement or a Prospectus, as the case may be. For purposes of this SECTION 8,
each Person, if any, who controls a Holder within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as such Holder,
and each director of the Company, each officer of the Company who signed the
Registration Statement and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act and each partner, employee, representative or agent of the Company shall
have the same rights to contribution as the Company. Each party entitled to
contribution agrees that upon the service of a summons or other initial legal
process upon it in any action instituted against it in respect of which
contribution may be sought, it shall promptly give written notice of such
service to the party or parties from whom contribution may be sought, but the
omission so to notify such party or parties of any such service shall not
relieve the party from whom contribution may be sought from any obligation it
may have hereunder or otherwise.
8. SISTER CORP. If the Company causes to be formed one or more Sister Corps.
(as defined in the Offering Memorandum), the equity interests in which are
distributed to the stockholders of the Company as described in the Offering
Memorandum other than in a transaction which results in the recipients of such
equity interests being entitled to sell or transfer such equity interests
without restriction under federal and applicable state securities laws, in
connection with such distribution of equity interests, the Company shall cause
the Sister Corp. to enter into a registration rights agreement with respect to
the equity interests of the Sister Corp. in substantially the same form as this
Agreement.
9. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by the Company, or by a Holder of
any of their obligations under this Agreement, each Holder or the Company, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. It is agreed that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for
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specific performance in respect of such breach, the parties shall waive the
defense that a remedy at law would be adequate.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, without the written consent of the Company and Holders owning not less
than 50% of the then outstanding Registrable Shares; PROVIDED, HOWEVER, that,
for the purposes of this Agreement, Registrable Shares that are owned, directly
or indirectly, by either the Company or an Affiliate of the Company shall not be
deemed to be outstanding. Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of a Holder whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the
rights of any other Holder may be given by such Holder; PROVIDED, HOWEVER, that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(c) NOTICES. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next-day air courier, certified
first-class mail, return receipt requested, telex or telecopy;
(i) if to the Company, as provided in the Purchase Agreement,
(ii) if to the Initial Purchaser, as provided in the Purchase
Agreement, or
(iii) if to any Holder, to the address of such Holder as it appears
in the Common Stock register of the Company.
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when (v) delivered by hand, if
personally delivered, (w) one Business Day after being timely delivered to a
next-day air courier, (x) five Business Days after being deposited in the mail,
postage prepaid, if mailed, (y) when answered back, if telexed or (z) when
receipt is acknowledged by the recipient's telecopier machine, if telecopied.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder. Each Holder shall be deemed a
third party beneficiary of this Agreement. The Company may not assign its
rights or obligations hereunder without the prior written consent of each
Holder. Notwithstanding the foregoing, no assignee of the Company shall have
any of the rights granted under this Agreement until such assignee shall
acknowledge its rights and obligations hereunder by a signed written agreement
pursuant to which such assignee accepts such rights and obligations.
(e) 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.
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(f) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed within the State of New York without regard to principles of
conflicts of law.
(g) SEVERABILITY. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the provisions hereof.
All references made in this Agreement to "Section" refer to such Section of this
Agreement, unless expressly stated otherwise.
(i) ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover its reasonable attorneys' fees in addition to any other
available remedy.
(j) LENDER. The Company hereby acknowledges and agrees that the
provisions of this Agreement shall inure to the benefit of any lender to
NorthStar Capital Partners, LLC which holds Units as collateral for a loan to
NorthStar Capital Partners, LLC in the event such lender becomes a Holder of
Registrable Shares issued upon redemption of the Units following a default by
NorthStar Capital Partners, LLC, or otherwise.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
NORTHSTAR CAPITAL INVESTMENT CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
The foregoing Registration Rights Agreement
is hereby confirmed and accepted as of the date
first above written.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Managing Director and
Executive Director of Corporate Finance
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