REGISTRATION RIGHTS AGREEMENT
Exhibit 10.9
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of June 11, 2013 by and between American Homes 4 Rent, a Maryland real estate investment trust (the “Company”), and Alaska Permanent Fund Corporation, acting for and on behalf of the funds which the Alaska Permanent Fund Corporation is designated by Alaska Statutes 37.13 to manage and invest (the “APFC Member”).
WHEREAS, the APFC Member and American Homes 4 Rent, LLC, a Delaware limited liability company (“AH LLC”) are members in a joint venture known as American Homes 4 Rent I, LLC, a Delaware limited liability company (the “Alaska Joint Venture”); and
WHEREAS, the APFC Member, AH LLC, the Alaska Joint Venture, the Company, American Homes 4 Rent, L.P., a Delaware limited partnership and majority-owned subsidiary of the Company (the “Operating Partnership”), and AH4R TRS, LLC, a Delaware limited liability company and wholly owned subsidiary of the Operating Partnership, have entered into a Contribution Agreement, dated as of June 11, 2013 (the “Contribution Agreement”), pursuant to which, (i) AH LLC will contribute and assign to the Operating Partnership (in return for Class A units of the Operating Partnership) all of AH LLC’s right, title and interest in and to AH LLC’s membership interests in the Alaska Joint Venture; (ii) the APFC Member will contribute and assign to the Operating Partnership (in return for 43,609,394 of the Company’s common shares of beneficial interest, par value $0.01 per share (the “Common Shares”) designated as Class A) all of the APFC Member’s right, title and interest in and to the APFC Member’s membership interests in the Alaska Joint Venture; (iii) the Company will grant to the APFC Member certain registration rights as are set forth in this Agreement (the “Registration Rights”); and (iv) the parties will enter into certain other agreements and engage in certain other transactions as are set forth in the Contribution Agreement (the “Alaska Transactions”).
NOW, THEREFORE, the parties agree as follows:
SECTION 1. DEFINITIONS
The following capitalized terms used herein have the following meanings:
“Agreement” is defined in the preamble hereto.
“Business Day” means any Monday, Tuesday, Wednesday, Thursday or Friday other than a day on which banks and other financial institutions are authorized or required to be closed for business in the State of New York.
“Common Shares” is defined in the preamble hereto.
“Company” is defined in the preamble hereto.
“End of Suspension Notice” is defined in Section 2.3(a) hereof.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Shelf” is defined in Section 2.2(a) hereof.
“Form S-11” means a registration statement on Form S-11 under the Securities Act or such successor form thereto permitting a registration of securities under the Securities Act.
“Form S-3” means a registration statement on Form S-3 under the Securities Act or such successor form thereto permitting registration of securities under the Securities Act.
“Holder” means (a) the APFC Member, (b) any permitted assignee or transferee of the APFC Member or (c) any transferee of the APFC Member (without restrictions other than during the lockup period) so long as the APFC Member has transferred more than $20 million worth of Registrable Securities.
“IPO Closing Date” means the closing date of the Company’s initial public offering.
“IPO Lockup Period” is defined in Section 2.4 hereof.
“IPO Registration Statement” means a registration statement filed by the Company with respect to the initial public offering of its Common Shares.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, governmental entity (including without limitation the State of Alaska) and any fiduciary acting in such capacity on behalf of any of the foregoing.
“Piggyback Registration” is defined in Section 2.1(a) hereof.
“Piggyback Registration Notice” is defined in Section 2.1(a) hereof.
“Piggyback Registration Rights” is defined in Section 2.1(a) hereof.
“Post-IPO Offering” is defined in Section 2.4 hereof.
“Prior Registrable Securities” means those securities designated as “Registrable Securities” pursuant to the Prior Registration Rights Agreements.
“Prior Registration Rights Agreements” means (a) the Registration Rights Agreement dated November 12, 2012 by and between the Company, American Homes 4 Rent Advisor, LLC (“Advisor”), and FBR Capital Markets & Co. (“FBR”) and (b) the Registration Rights Agreement dated March 14, 2013 by and between the Company, Advisor and FBR.
“Prospectus” means the prospectus or prospectuses included in any Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to such prospectus or prospectuses, including post-effective amendments and all documents incorporated therein by reference.
“Registrable Securities” means (a) the Common Shares issued to the APFC Member in connection with the Alaska Transactions, or acquired by the APFC Member during the term of this Agreement, and (b) any Common Shares of the Company issued or issuable (including, without limitation, upon the exercise or conversion of any derivative security) to a Holder with respect to the Common Shares by way of share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (i) a Registration Statement covering such securities has been declared effective by the SEC and such securities have been disposed of pursuant to such effective Registration Statement, (ii) if in the event the Company is subject
2
to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the date on which such securities have been transferred pursuant to Rule 144 (or any similar provision then in effect) or are freely saleable, without condition or limitation as to volume or manner of sale pursuant to Rule 144, and without delay or condition arising on account of the Company’s compliance with any current public information requirements and are listed for trading on the New York Stock Exchange, Nasdaq Global Market or a similar national securities exchange, (iii) such securities are otherwise transferred and such securities may thereafter be resold without subsequent registration under the Securities Act, or (iv) such securities shall have ceased to be outstanding.
“Registration Rights” is defined in the recitals hereto.
“Registration Statement” means any registration statement of the Company that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments (including post-effective amendments) and supplements to such Registration Statement, and any exhibits and documents incorporated by reference in such Registration Statement.
“S-3 Registration” is defined in Section 2.2(a) hereof.
“S-11 Prior Shelf Registration” means the registration of shares of Common Stock pursuant to Section 2(a) of each of the Prior Registration Rights Agreements.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Shelf Takedown” is defined in Section 2.2(b) hereof.
“Suspension Event” is defined in Section 2.3(a) hereof.
“Suspension Notice” is defined in Section 2.3(a) hereof.
“Alaska Transactions” is defined in the recitals hereto.
SECTION 2. REGISTRATION RIGHTS
2.1 Piggyback Registration Rights.
(a) Right to Piggyback. At any time after the IPO Lockup Period (as defined in Section 2.4) expires when the Company proposes to register any of its Common Shares under the Securities Act (other than a registration statement on Form X-0, Xxxx X-0 or any similar successor forms thereto or another form not available to register Registrable Securities for sale to the public), whether for its own account or for the account of one or more shareholders of the Company (a “Piggyback Registration”), the Company shall give prompt written notice (in any event no later than 10 days prior to the filing of such registration statement) to the Holders of its intention to effect such a registration (a “Piggyback Registration Notice”) and, subject to Section 2.3 hereof, shall include in such registration statement all Registrable Securities with respect to which the Company has received written requests for inclusion therein from the Holders within 7 days after the date of the Piggyback Registration Notice. The Company may postpone or withdraw the filing or the effectiveness of a Piggyback Registration at any time in its sole discretion. A Piggyback Registration shall not be considered a Form S-3 Registration Statement for purposes of Section 2.2 of this Agreement.
3
(b) Priority on Primary Piggyback Registrations. If a Piggyback Registration is initiated as a primary underwritten offering on behalf of the Company and the managing underwriters advise the Company and the Holders (if any Holder has elected to include Registrable Securities in such Piggyback Registration) that in the opinion of the managing underwriters, the number of Common Shares proposed to be included in such registration exceeds the number of Common Shares which can be sold in such offering and/or that the number of Common Shares proposed to be included in any such registration would substantially and adversely affect the price per share of the Common Shares to be sold in such offering, the Company shall include in such registration a number of Common Shares of the Holders comprising not less than twenty-five (25%) of the total number of Common Shares to be sold in such offering. To the extent this results in a reduction in the number of Common Shares available for sale by existing securityholders, reductions in the number of Common Shares held by all existing securityholders proposed for sale in such Piggyback Registration shall be reduced pro rata among all such securityholders on the basis of the number of Common Shares requested to be included therein by all such holders, or as such holders may otherwise agree; provided, however, that in no event shall the number of Common Shares to be sold by the Holders be reduced below the twenty-five percent (25%) limitation established in the preceding sentence.
(c) Priority on Secondary Piggyback Registrations. If a Piggyback Registration is initiated as an underwritten offering on behalf of a holder of Common Shares other than Registrable Securities, and the managing underwriters advise the Company that in the opinion of the managing underwriters the number of Common Shares proposed to be included in such registration exceeds the number of Common Shares that can be sold in such offering and/or that the number of Common Shares proposed to be included in any such registration would materially adversely affect the price per share of the Common Shares to be sold in such offering, then the Company shall include in such registration the number of Common Shares of the respective holders (including the Holders) determined pro rata according to the respective numbers of shares held by such holders as of the delivery of the notice giving rise to such Piggyback Registration. Notwithstanding the foregoing, in the event of a Piggyback Registration on any registration statement filed pursuant to either or both of the Prior Registration Rights Agreements, the Company shall first include all Prior Registrable Securities that the holders thereof elect to have included in such registration prior to including any shares of the Registrable Securities or any other holders, and any pro rata reduction of shares included in the registration statement will not apply to such Prior Registrable Securities.
(d) Selection of Underwriters. If any Piggyback Registration is initiated as a primary underwritten offering, the Company shall select the managing underwriter or underwriters to administer any such offering. In the event of a Piggyback Registration pertaining to an underwritten secondary offering, the Holder that transmits the notice giving rise to such Piggyback Registration shall be entitled to propose the managing underwriter or underwriters, and the Company shall give due regard to the Holder’s preference. The Company reserves the right, however, to reject the Holder’s selected underwriter if it has a reasonable basis for doing so.
(e) Offers and Sales. All offers and sales of Registrable Securities covered by a Registration Statement by the Holder thereof shall be completed within the period during which such Registration Statement remains effective and not the subject of any stop order, injunction or other order of the SEC. Upon notice that such Registration Statement is no longer effective, no Holder will offer or sell the Registrable Securities covered by such Registration Statement (other than by virtue of another effective Registration Statement or an exemption from registration). If directed in writing by the Company, each Holder will return all undistributed copies of the related Prospectus in such Holder’s possession upon the expiration of such period.
4
(f) Prior Registration Rights. Notwithstanding the foregoing provisions of this section 2.1 for so long as the Prior Registration Rights Agreements remain in effect, the Company shall not be obligated to cause any Registration Statement filed pursuant to this Agreement to be declared effective until one hundred eighty (180) days after the later to occur of effective date of the IPO Registration Statement or the effective date of the S-11 Prior Shelf Registration Statement, or within one hundred eighty (180) days after the effective date of any other registration filed pursuant to either or both of the Prior Registration Rights Agreements.
2.2 S-3 Shelf Registration.
(a) Registration. The Company shall exercise its reasonable best efforts to assure that it attains as promptly as practicable, and thereafter maintains, eligibility to use Form S-3 for the registration of sales of securities on a delayed or continuous basis. Promptly (and in any event no later than thirty (30) days) after attaining such eligibility, the Company shall exercise its reasonable best efforts to file a Form S-3 Registration Statement relating to the continuous offering of Registrable Securities by the Holders. The filing of the Form S-3 Registration Statement required by this Section 2.2(a), in the Company’s reasonable discretion, take the form of an amendment to a Form S-11 Registration Statement, if any, filed under Section 2.1(a). Notwithstanding the foregoing, so long as the Prior Registration Rights Agreements remain in effect, the Company shall not be obligated to file a new Form S-3 until 180 days after the effective date of any registration statement filed pursuant to the Prior Registration Rights Agreements, including the S-11 Prior Shelf Registration Statement. In the event of a conversion of any Form S-11 registration statement filed pursuant to either or both of the Prior Registration Rights Agreements, the effective date of the original Form S-11 registration statement to which such Form S-3 registration statement relates shall be used as the measuring dates for purposes of the preceding sentence. At any time that the Company is eligible to use Form S-3 or any successor thereto, and the Company does not have an effective shelf Registration Statement on Form S-3 on file with the SEC covering the Registrable Securities (an “Existing Shelf”), then each Holder shall be entitled to request that the Company file a Registration Statement on Form S-3 or any successor form thereto for a public offering of all or any portion of the Registrable Securities pursuant to Rule 415 promulgated under the Securities Act or otherwise. Upon such request, the Company shall use its reasonable best efforts to cause such Form S-3 Registration Statement (i) to be declared effective by the SEC as soon as reasonably practicable thereafter; and (ii) subject to Section 2.4, to remain in effect (and not subject to any stop order or disqualification) at all times during the remaining term of this Agreement.
(b) Right to Request Underwritten Shelf Takedown. A Holder shall be entitled to sell in an underwritten offering, in accordance with the Securities Act, all or any portion of the Registrable Securities. In the event a Holder shall deliver to the Company notice of intent to effect an underwritten offering of Registrable Securities pursuant to a Form S-3 Registration Statement, then the Company shall, no later than thirty (30) days thereafter, take such actions as may be reasonably necessary to provide for the filing of a complete Prospectus describing such underwritten offering and containing the information required to be contained therein (each, a “Shelf Takedown”). The Holder shall be entitled to request up to three such Shelf Takedowns; provided, that (based on the closing sale price of the Common Shares as reported on the national securities exchange on which the Company’s securities are listed on the date of the Company’s receipt of such request) the number of shares of Registrable Securities included in such Shelf Takedown would yield gross proceeds to the Holder(s) requesting such Shelf Takedown of at least fifty million dollars ($50,000,000). Each Holder participating in such Shelf Takedown shall (i) enter into an underwriting agreement in customary form with the underwriter(s) selected in accordance with Section 2.2(d) below; provided that with respect to such underwriting agreement or any other documents reasonably required under such agreement, (A) no Holder shall be required to make any representation or warranty with respect to or on behalf of the Company or any other shareholder of the Company and (B) the liability of any Holder shall be limited as provided in Section 3.2 hereof, and (ii) complete and
5
execute all questionnaires, powers of attorney, indemnities, opinions and other documents required under the terms of such underwriting agreement. Notwithstanding the foregoing, in no event shall the Company be obligated to effect more than one Shelf Takedown hereunder in any single six-month period.
(c) Priority on Shelf Takedowns. The Company may include Common Shares other than Registrable Securities in a Shelf Takedown on the terms provided below, only with the consent of the managing underwriters of such offering. If the managing underwriters of the requested Shelf Takedown advise the Company and the Holder(s) participating in such Shelf Takedown that in their opinion the number of Common Shares proposed to be included in any Shelf Takedown (1) exceeds the number of Common Shares which can be sold in such underwritten offering or (2) would adversely affect the price per share of the Registrable Securities proposed to be sold in such underwritten offering, the Company shall reduce the number of Common Shares to be sold such that the Shelf Takedown shall include, (i) first, any Prior Registrable Securities that may be entitled to be included in such offering pursuant to the Prior Registration Rights Agreements, (ii) second, all Registrable Securities proposed for sale by the Holders (or, if the number of Registrable Securities proposed for such sale exceeds the limitation set by clauses (1) and (2) above, then adjusted pro rata on the basis of the respective numbers of Registrable Securities held by the participating Holders), and (iii) thereafter, if any additional shares are, in the opinion of the managing underwriter, available for sale in such offering in light of such limitations.
(d) Selection of Underwriters. If any of the Registrable Securities covered by a Form S-3 Registration Statement is to be sold in an underwritten offering, the Holders may propose the managing underwriter or underwriters to administer any such offering and the Company shall give due regard to the Holder’s preference. The Company reserves the right, however, to reject the Holder’s selected underwriter if it has a reasonable basis for doing so.
2.3 Suspension of Offering.
(a) Notwithstanding Sections 2.1 and 2.2 hereof, the Company shall be entitled to postpone the filing of a Registration Statement, to suspend the effectiveness of a Registration Statement or to require the Holder to suspend sales of Registrable Securities under a Registration Statement for such times as the Company reasonably may determine is necessary and advisable (but in no event for more than ninety (90) days at any one time, or more than twice in any rolling twelve (12) month period), if any of the following events shall occur: (i) the Company is actively pursuing an underwritten primary offering of the Company’s equity securities; (ii) an event has occurred as a result of which the Prospectus included in such Registration Statement contains any untrue statement of a material fact or omits 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 (iii) an event has occurred which the majority of the independent members of the Board of Trustees, after the advice of counsel, has determined would require additional disclosure by the Company in the Registration Statement of material information which the Company has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the Company’s reasonable determination after advice of counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements (each such circumstance a “Suspension Event”). Upon the occurrence of any Suspension Event, the Company shall provide written notice (a “Suspension Notice”) to each Holder to suspend sales of Registrable Securities. Such Suspension Notice shall state generally the basis for the notice (but shall not contain or be accompanied by the disclosure of any material nonpublic information), that such suspension shall continue only as long as the Suspension Event or its effect is continuing and that the Company is taking all reasonable steps to terminate suspension of the use of the Registration Statement as promptly as possible. Upon receipt of any Suspension Notice, each Holder agrees that (x) it will immediately suspend offers and sales of the Registrable Securities under such Registration Statement until the Holder receives an End of Suspension Notice (as defined below), and
6
(y) it will maintain the confidentiality of any information included in the Suspension Notice delivered by the Company unless otherwise required by law or subpoena. Holders may recommence offers and sales of Registrable Securities pursuant to a Registration Statement following receipt of written notice to such effect from the Company (an “End of Suspension Notice”).
(b) If all reports required to be filed by the Company pursuant to the Exchange Act have not been filed by the required date taking into account any permissible extension, upon written notice thereof by the Company to the Holders, the rights of the Holders to offer, sell or distribute any Registrable Securities pursuant to any Registration Statement or to require the Company take action with respect to the registration or sale of any Registrable Securities pursuant to any Registration Statement shall be suspended until the date on which the Company has filed such reports, and the Company shall notify the Holders in writing as promptly as practicable when such suspension is no longer required. This Section 2.4(b) shall not excuse the obligation of the Company timely to file all required reports, or otherwise to maintain the effectiveness of a Registration Statement, as required by this Agreement.
2.4 Lockup Agreements. Each Holder hereby agrees to enter into a lockup agreement in connection with the IPO, in such form as is requested by the Company and the lead underwriter of the IPO, not to sell, transfer, hedge the beneficial ownership of, or otherwise dispose of any Registrable Securities or other Common Shares or any securities convertible into or exchangeable or exercisable for Common Shares then owned by such Holder for a period of one hundred eighty (180) days following the IPO Closing Date (the “IPO Lockup Period”). In connection with any underwritten offering by the Company following the IPO Closing Date (a “Post-IPO Offering”), each Holder further agrees not to sell, transfer, hedge the beneficial ownership of, or otherwise dispose of any Registrable Securities or other Common Shares or any securities convertible into or exchangeable or exercisable for Common Shares then owned by such Holder for a reasonable and customary period (not to exceed ninety (90) days) following the date of a prospectus or prospectus supplement, as applicable, prepared in connection with such Post-IPO Offering, as requested by the lead underwriter of such Post-IPO Offering; provided that (a) each executive officer and trustee of the Company, and each holder of 5% or more of the Common Shares or securities convertible into Common Shares, enter into agreements that are no less restrictive and (b) the Holders shall be allowed any concession or proportionate release offered to any executive officer, trustee or holder of 5% or more of the Common Shares that entered into such agreements, with such proportionate number being determined by dividing the number of shares being released with respect to such officer, trustee or 5% or greater holder by the total number of issued and outstanding shares held by such officer, trustee or 5% or greater holder). If requested, such agreement shall be in writing in a form reasonably satisfactory to the Company and the managing underwriter. The Company may impose stop transfer restrictions with respect to the Registrable Securities subject to the foregoing restriction until the end of the period, provided, that the Company shall take no action materially more restrictive of the Registrable Securities than of Shares held by other securityholders who are subject to such lockup agreements.
2.5 State Securities Law Qualification. The Company shall file such documents as necessary to register or qualify the Registrable Securities to be covered by a Registration Statement by the time such Registration Statement is declared effective by the SEC under all applicable state securities or “blue sky” laws of such jurisdictions as any Holder may reasonably request in writing, and shall use commercially reasonable efforts to keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement or during the period offers or sales are being made by the Holders, whichever is shorter, and to do any and all other similar acts and things which may be reasonably necessary or advisable to enable the Holders to consummate the disposition of such Registrable Securities in each such jurisdiction; 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 but for this Agreement, (ii)
7
take any action that would cause it to become subject to any taxation in any jurisdiction where it would not otherwise be subject to such taxation, or (iii) take any action that would subject it to the general service of process in any jurisdiction where it is not then so subject.
2.6 Registration Procedures. If and when the Company is required to effect the registration of Registrable Securities under the Securities Act pursuant to Sections 2.1 and 2.2 of this Agreement, subject to Section 2.3 hereof, the Company shall:
(a) prepare and file with the SEC such amendments and supplements as to the Registration Statement and the Prospectus used in connection therewith as may be necessary (i) to keep such Registration Statement effective and (ii) to comply with the provisions of the Securities Act with respect to the disposition of the Registrable Securities covered by such Registration Statement, in each case for such time as is contemplated in Sections 2.1 and 2.2;
(b) furnish, without charge, to the Holders such number of copies of the Registration Statement, each amendment and supplement thereto (in each case including all exhibits), and the Prospectus included in such Registration Statement (including each preliminary Prospectus) in conformity with the requirements of the Securities Act as the Holders may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by the Holders;
(c) notify the Holders: (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of any proceedings for that purpose, and (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose;
(d) promptly use commercially reasonable efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement, and, if any such order suspending the effectiveness of a Registration Statement is issued, shall promptly use commercially reasonable efforts to obtain the withdrawal of such order at the earliest possible moment;
(e) promptly notify the Holders: (i) of the existence of any fact of which the Company is aware or the happening of any event which has resulted in (A) the Registration Statement, as then in effect, containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statements therein not misleading or (B) the Prospectus included in such Registration Statement containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statements therein, in the light of the circumstances under which they were made, not misleading, and (ii) of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate or that there exist circumstances not yet disclosed to the public which make further sales under such Registration Statement inadvisable pending such disclosure and post-effective amendment; and, if the notification relates to any event described in either of the clauses (i) or (ii) of this Section 2.6(e), at the request of the Holders, the Company shall prepare and, to the extent the exemption from the prospectus delivery requirements in Rule 172 under the Securities Act is not available, furnish to the Holders a reasonable number of copies of a supplement or post-effective amendment to such Registration Statement or related Prospectus or file any other required document so that (1) such Registration Statement shall 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 not misleading and (2) as thereafter delivered to the purchasers
8
of the Registrable Securities being sold thereunder, 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 the light of the circumstances under which they were made, not misleading;
(f) use commercially reasonable efforts to cause all such Registrable Securities to be listed on the national securities exchange on which the Common Shares are then listed, if the listing of Registrable Securities is then permitted under the rules of such national securities exchange; and
(g) if requested by any Holder participating in the offering of Registrable Securities, incorporate in a prospectus supplement or post-effective amendment such information concerning the Holder or the intended method of distribution as the Holder reasonably requests to be included therein and is reasonably necessary to permit the sale of the Registrable Securities pursuant to the Registration Statement, including, without limitation, information with respect to the number of Registrable Securities being sold, the purchase price being paid therefor and any other material terms of the offering of the Registrable Securities to be sold in such offering; provided, however, that the Company shall not be obligated to include in any such prospectus supplement or post-effective amendment any requested information that is not required by the rules of the SEC and is unreasonable in scope compared with the Company’s most recent prospectus or prospectus supplement used in connection with a primary or secondary offering of equity securities by the Company.
2.7 Obligations of the Holder. In connection with any Registration Statement utilized by the Company to satisfy the Registration Rights pursuant to this Section 2, each Holder agrees to cooperate with the Company in connection with the preparation of the Registration Statement, and each Holder agrees that it will (i) respond within five (5) Business Days to any written request by the Company to provide or verify information regarding the Holder or the Holder’s Registrable Securities (including the proposed manner of sale) that may be required to be included in such Registration Statement and related Prospectus pursuant to the rules and regulations of the SEC, and (ii) provide in a timely manner information regarding the proposed distribution by the Holder of the Registrable Securities and such other information as may be requested by the Company from time to time in connection with the preparation of and for inclusion in the Registration Statement and related Prospectus.
SECTION 3. INDEMNIFICATION; CONTRIBUTION
3.1 Indemnification by the Company. The Company agrees to indemnify, defend and hold harmless each Holder and each Person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any of their partners, members, officers, trustees, employees or representatives, as follows:
(i) against any losses, liabilities, claims, damages, judgments and expenses arising or alleged to have arisen out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) pursuant to which the Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising or alleged to have arisen out of or based upon 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 therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
9
(ii) against any losses, liabilities, claims, damages, judgments and expenses 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 based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and
(iii) against any expenses (including reasonable fees and disbursements of counsel), reasonably incurred 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 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 the indemnity provided pursuant to this Section 3.1 does not apply to any Holder with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of (A) 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 the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or (B) any Holder’s failure to deliver an amended or supplemental Prospectus furnished to such Holder by the Company, if (and solely to the extent) such loss, liability, claim, damage, judgment or expense would not have arisen had such delivery occurred.
3.2 Indemnification by Holder. Each Holder (and each permitted assignee of such Holder, on a several basis) agrees, severally and not jointly, to indemnify and hold harmless the Company, and each of its trustees and officers (including each trustee and officer of the Company who signed a Registration Statement), 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 other Holder as follows:
(i) against any losses, liabilities, claims, damages, judgments and expenses arising or alleged to have arisen out of or based upon any untrue statement or alleged untrue statement of a material fact provided by such Holder in writing expressly for inclusion in, and contained in substantially the same form in, the Registration Statement (or any amendment thereto) pursuant to which the Registrable Securities of such Holder were registered under the Securities Act, including all documents theretofore filed by such Holder and incorporated therein by reference, or the omission or alleged omission therefrom by such Holder of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising or alleged to have arisen out of or based upon 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 therefrom by such Holder of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any losses, liabilities, claims, damages, judgments and expenses 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 by such Holder, or any such alleged untrue statement or omission by such Holder, if such settlement is effected with the written consent of such Holder; and
10
(iii) against any expenses (including reasonable fees and disbursements of counsel), reasonably incurred 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, if (and solely to the extent) such liability has been fully and finally determined by a court of competent jurisdiction to have been based upon any such untrue statement or omission by such Holder, to the extent that any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 3.2 shall only apply with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of (A) 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 the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) and filed in substantially the same form and context as so provided, or (B) any Holder’s failure to deliver an amended or supplemental Prospectus furnished to the Holder by the Company, if (and only to the extent) such loss, liability, claim, damage or expense would not have arisen had such delivery occurred. Notwithstanding the provisions of this Section 3.2, each Holder’s (and any permitted assignee’s) indemnification obligations hereunder shall be limited to the amount of the proceeds actually received by such Holder or such permitted assignee, as the case may be (net of underwriter discounts, and selling expenses borne by such Holder), from sales of the Registrable Securities of such Holder under the Registration Statement that is the subject of the indemnification claim.
3.3 Conduct of Indemnification Proceedings. An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify the indemnifying party (i) shall not relieve the indemnifying party from any liability which it may have to such indemnified party hereunder, unless and only to the extent the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligations provided hereunder. If the indemnifying party so notifies the indemnified party or parties in writing within ten (10) Business Days after being notified of the pendency of a proceeding, 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 party, which approval shall not be unreasonably withheld or delayed; provided, however, that the indemnifying party will not settle, compromise or consent to the entry of any judgment with respect to any such action or proceeding without the written consent of the indemnified party unless such settlement, compromise or consent secures the unconditional release of the indemnified party of all liability at no cost or expense to the indemnified party and without placing any material restriction upon such indemnified party’s future actions or requiring a disclosure by or pertaining to such indemnified party that would reasonably be expected to cast such indemnified party in an adverse light; and provided further, that, if the indemnified party reasonably determines in good faith that a conflict of interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to the indemnified party which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall not be entitled to assume (or, if previously assumed, thereafter to maintain) such defense and the indemnified party shall be entitled to separate counsel of the indemnified party’s choice at the indemnifying party’s expense. If the indemnifying party is not entitled to assume (or maintain) the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and counsel for the indemnified party shall be entitled to conduct the defense of the indemnified party, 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 the 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
11
indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party. In such event, however, the indemnifying party will not be liable for any settlement effected without the written consent of the indemnifying party (which consent will not be unreasonably withheld or delayed). If an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding in accordance with this paragraph, the indemnifying party shall not be liable for any fees and expenses of counsel for the indemnified party incurred thereafter in connection with such action or proceeding. In any instance in which an indemnified party is entitled to separate counsel, the indemnifying party shall promptly pay or reimburse the indemnified party for all fees, costs and expenses incurred in connection with such proceeding.
3.4 Certain Limitations on Indemnification. Any indemnification by the APFC Member under this Agreement is subject to a specific appropriation of funds for that purpose by the Legislature of the State of Alaska. The parties to this Agreement recognize and agree, however, that (i) the APFC Member has no appropriation currently available to it to indemnify Advisor under this Agreement; (ii) the APFC Member will use commercially reasonable efforts to obtain such an appropriation; (iii) enactment of an appropriation in the future to fund a payment under any indemnification provision remains in the sole discretion of the Legislature; and (iv) the Legislature’s failure to make such an appropriation creates no further liability of the APFC Member.
3.5 Contribution.
(a) In order to provide for just and equitable contribution in circumstances in which the indemnification provisions in Sections 3.1 and 3.2 above are for any reason held to be unenforceable by the indemnified party although applicable in accordance with its terms, the Company and the relevant Holder shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnification provisions incurred by the 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 hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, or expenses. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether the action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, the indemnifying party or the indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action.
(b) The parties hereto agree that it would not be just or equitable if contribution pursuant to this Section 3.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 3.4, a Holder shall not be required to contribute any amount in excess of the amount of the gross proceeds actually received by such Holder from sales of the Registrable Securities of such Holder under the Registration Statement that is the subject of the indemnification claim.
(c) 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. For purposes of this Section 3.4, 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 the Holder, and each trustee of the Company, each officer of the Company who signed a Registration Statement and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act shall have the same rights to contribution as the Company.
12
SECTION 4. EXPENSES
The Company shall pay the following expenses incident to the performance by the Company of its registration obligations under Section 2 above: (i) SEC, stock exchange and FINRA registration and filing fees, (ii) all fees and expenses incurred in complying with securities or “blue sky” laws (including reasonable fees, charges and disbursements of counsel to any underwriter incurred in connection with “blue sky” qualifications of the Registrable Securities as may be set forth in any underwriting agreement), (iii) all printing expenses, (iv) the fees, charges and expenses of counsel to the Company and of its independent public accountants and any other accounting fees, charges and expenses incurred by the Company (including, without limitation, any expenses arising from any “comfort” letters or any special audits incident to or required by any registration or qualification); and (v) the reasonable fees, charges and expenses of one firm serving as counsel to the Holders in connection with such registration. Each Holder shall be responsible for the payment of any underwriting commissions and discounts, brokerage and sales commissions, fees and disbursements of such Holder’s counsel, accountants and other advisors, and any transfer taxes relating to the sale or disposition of the Registrable Securities by such Holder pursuant to this Agreement.
SECTION 5. RULE 144 COMPLIANCE
From and after the IPO Effective Date, the Company shall file the reports required to be filed by the Company under the Securities Act and the Exchange Act so as to enable the Holders to sell the Registrable Securities pursuant to Rule 144 under the Securities Act, as such rule may be amended from time to time.
SECTION 6. MISCELLANEOUS
6.1 Integration; Amendment. This Agreement constitutes the entire agreement among the parties hereto with respect to the matters set forth herein and supersedes and renders of no force and effect all prior oral or written agreements, commitments and understandings among the parties with respect to the matters set forth herein. Except as otherwise expressly provided in this Agreement, no amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by each of the parties hereto.
6.2 Waivers. No waiver by a party hereto shall be effective unless made in a written instrument duly executed by the party against whom such waiver is sought to be enforced, and only to the extent set forth in such instrument. Neither the waiver by any of the parties hereto of a breach or a default under any of the provisions of this Agreement, nor the failure of any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or privileges hereunder.
6.3 Assignment; Successors and Assigns. This Agreement and the rights granted hereunder may not be assigned by a Holder without the written consent of the Company; provided, however, that a Holder may assign its rights and obligations hereunder, without such consent, in connection with a transfer of some or all of such Holder’s Registrable Securities (i) to the extent permitted under the Company’s charter, and (ii) provided such transferee agrees in writing to be bound by all of the provisions hereof and the Holder provides written notice to the Company within ten (10) days of the effectiveness of such assignment. This Agreement shall inure to the benefit of and be binding upon all of the parties hereto and their respective heirs, executors, personal and legal representatives, successors and permitted assigns, including, without limitation, any successor of the Company by merger, acquisition, reorganization, recapitalization or otherwise.
13
6.4 Notices. All notices and other communications, provided for or permitted hereunder, shall be made in writing and delivered by facsimile (with receipt confirmed), overnight courier or registered or certified mail, return receipt requested:
(i) if to a Holder, at the most current address given by the transfer agent and registrar of the Shares to the Company, with a copy to Xxxxx Xxxxxx Xxxxxxxx LLP, Attn: Xxxxxx X. Xxxxxxxx, 0000 Xxxxx Xxxxxx Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000; and
(ii) if to the Company, at the offices of the Company at American Homes 4 Rent, 00000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxx-Xxxxxx (facsimile: 310-774-5333), with a copy to Xxxxx Lovells LLP, 000 Xxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX, 00000, Attention: Xxxxx X. Xxxxxx (facsimile: 202-637-5910).
6.5 Specific Performance. The parties hereto acknowledge that the obligations undertaken by them hereunder are unique and that there would be no adequate remedy at law if any party fails to perform any of its obligations hereunder, and accordingly agree that each party, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to (i) compel specific performance of the obligations, covenants and agreements of any other party under this Agreement in accordance with the terms and conditions of this Agreement and (ii) obtain preliminary injunctive relief to secure specific performance and to prevent a breach or contemplated breach of this Agreement in any court of the United States or any State thereof having jurisdiction.
6.6 Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, 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 conflicts of law principles.
6.7 Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
6.8 Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require.
6.9 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement. This Agreement may be executed by facsimile signatures.
6.10 Severability. If fulfillment of any provision of this Agreement, at the time such fulfillment shall be due, shall transcend the limit of validity prescribed by law, then the obligation to be fulfilled shall be reduced to the limit of such validity; and if any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
6.11 No Third Party Beneficiaries. Except as may be expressly provided herein (including without limitation Section 3 hereof), it is the explicit intention of the parties hereto that no person or entity other than the parties hereto is or shall be entitled to bring any action to enforce any provision of this Agreement against any of the parties hereto, and the covenants, undertakings and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties hereto or their respective successors, heirs, executors, administrators, legal representatives and permitted assigns.
14
6.12 Legend Removal. The Company, upon the request of any Holder of Registrable Securities, shall use its commercially reasonable efforts to remove any legend from the certificates representing such Registrable Securities with respect to the Securities Act and any state securities laws, and shall cause the termination of any related stop transfer orders, if (a) such Registrable Securities are eligible for sale without registration pursuant to Rule 144 (or any successor provision) under the Securities Act without any volume limitations or other restrictions on transfer under paragraphs (c), (e), (f) and (h) of Rule 144 and (b) such Holder provides the Company with a representation letter in customary form reasonably sufficient to establish that such limitations and restrictions under paragraphs (c), (e), (f) and (h) of Rule 144 do not apply to such Registrable Securities.
6.13 Termination. This Agreement, and the Registration Rights granted hereunder, shall terminate upon the date on which the Holder may sell freely all of its remaining Registrable Securities pursuant to Rule 144 under the Securities Act.
15
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered in its name and on its behalf as of the date first written above.
| AMERICAN HOMES 4 RENT | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Chairman of the Special Committee of the Board of Trustees | |
| ALASKA PERMANENT FUND CORPORATION | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Chief Financial Officer | |
[Signature Page to Registration Rights Agreement]
