EXHIBIT 10.10
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
December 8, 1998, by and among TOWER REALTY TRUST, INC., a Maryland
corporation (the "Company"), METROPOLITAN PARTNERS LLC, a Delaware limited
liability company ("MET") and, only as to Section 2.9(b), RECKSON
ASSOCIATES REALTY CORP., a Maryland corporation ("Reckson").
WHEREAS, on the date hereof, the Company and MET will enter into
a Stock Purchase Agreement (the "Purchase Agreement").
WHEREAS, it is a condition precedent to the entering into of the
Purchase Agreement that the Company and MET enter into this Agreement.
NOW THEREFORE, the parties hereto desire to provide certain
registration rights with respect to the shares of Series A Preferred Stock
(as such term is defined herein) and the shares of Common Stock (as such
term is defined herein) issuable upon conversion of the Series A Preferred
Stock.
Accordingly, the parties hereto agree as follows:
1 Certain Definitions.
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
1.1 "Affiliate": shall mean (i) with respect to any Person, any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person or (ii) with respect to any individual, shall also mean
the spouse, parent, grandparent, uncle, aunt, father-in-law,
mother-in-law, sibling, child, step-child, grandchild, niece, or
nephew of such Person, or the spouse thereof, or any trust,
charitable foundation or similar entity of which there are no
principal beneficiaries other than such Person and/or one or more
of such relatives or any undesignated charity.
1.2 "Business Day": shall mean any day on which commercial banks in
the City of New York and the State of New York and the New York
Stock Exchange, Inc. are generally open for business.
1.3 "Commission": shall mean the Securities and Exchange Commission.
1.4 "Common Stock": shall mean the common stock, par value $.01 per
share, of the Company.
1.5 "Continuously Effective": with respect to either Demand
Registrations (as hereafter defined) or piggyback registrations,
shall mean that such Registrations shall not cease to be
effective and available for transfers of securities registered
thereunder for longer than three (3) Business Days during the
period specified in the relevant provisions of this Agreement.
1.6 "Conversion Shares": shall mean the shares of Common Stock
issuable upon the conversion of the Series A Preferred Stock.
1.7 "Exchange Act": shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder.
1.8 "Holder" or "Holders": shall mean MET and any party who shall
hereafter acquire and hold Registrable Securities and who, unless
it is Reckson or an affiliate of Reckson, is an assignee of the
rights of MET under this Agreement in accordance with Section
4.5.
1.9 "Merger": shall mean the merger of the Company with and into MET
(with MET being the surviving entity) pursuant to the Merger
Agreement.
1.10 "Merger Agreement": shall mean the merger agreement, of even
date herewith, by and among the Company, MET and Reckson.
1.11 "Person": shall mean any natural person, corporation,
partnership, firm, association, trust, government, governmental
agency or other entity, whether acting in an individual,
fiduciary or other capacity.
1.12 "Registrable Securities": shall mean any (i) shares of Series A
Preferred Stock issued to MET pursuant to the Purchase Agreement
and (ii) any Conversion Shares issued upon conversion of any such
shares of Series A Preferred Stock (and any shares issued upon
any subdivision, combination or reclassification of such shares
or any stock dividend in respect of any of the foregoing shares)
held by MET or by any transferee of such shares who agrees to be
bound by the terms of this Agreement in accordance with Section
4.6(a), except for any such transferee that acquires Series A
Preferred Stock in a transfer that results in a breach of Section
3.3 of the Purchase Agreement. As to any particular Registrable
Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the
sale of such securities shall have been declared effective under
the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, or (ii) such
securities shall have been sold (other than in a privately
negotiated sale) pursuant to Rule 144 (or any successor
provision) under the Securities Act.
1.13 "Securities Act": shall mean the Securities Act of 1933, as
amended, and the rules and regulations thereunder.
1.14 "Series A Preferred Stock": shall mean the Series A Preferred
Stock of the Company, par value $.01 per share, having the
preferences, limitations and relative rights as set forth in the
Supplementary Articles of Incorporation.
1.15 "Supplementary Articles of Incorporation": shall mean the
Supplementary Articles of Incorporation of the Company in the
form attached hereto as Exhibit A, as amended from time to time.
2 Registration Rights.
2.1 Demand Registrations.
(a) (i) Subject to Sections 2.1(b), 2.1(e) and 2.3 below, at
any time and from time to time after the termination of the Merger
Agreement, each Holder shall have the right to require the Company to use
its reasonable best efforts to file a registration statement under the
Securities Act covering all or any part of their respective Registrable
Securities, by delivering a written request therefor to the Company
specifying the number of Registrable Securities to be included in such
registration by such Holder and the intended method of distribution
thereof. All requests pursuant to this Section 2.1(a)(i) are referred to
herein as "Demand Registration Requests," and the registrations requested
are referred to herein as "Demand Registrations." As promptly as
practicable, but no later than ten days after receipt of a Demand
Registration Request, the Company shall give written notice of such Demand
Registration Request to all Holders of record of Registrable Securities.
(ii) Company, subject to Sections 2.3 and 2.6, shall include
in a Demand Registration (x) the Registrable Securities of the Holder(s)
which requested such registration and (y) the Registrable Securities of any
Holder which shall have made a written request to the Company for
registration thereof (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder(s)) within
30 days after the receipt by such Holder of written notice (or, 15 days if,
at the request of the Holder(s) which requested such registration, the
Company states in such written notice or gives telephonic notice to all
Holders, with written confirmation to follow promptly thereafter, that such
registration will be on Form S-3) from the Company of a Demand Registration
Request.
(iii) The Company shall, as promptly as reasonably
practicable following a Demand Registration Request, use its reasonable
best efforts to (x) effect such registration under the Securities Act
(including, without limitation, by means of a shelf registration pursuant
to Rule 415 under the Securities Act if so requested and if the Company is
then eligible to use such a registration) of the Registrable Securities
which the Company has been so requested to register, for distribution in
accordance with such intended method of distribution, and (y) if requested
by the Holder(s) making such demand for registration, obtain acceleration
of the effective date of the registration statement relating to such
registration.
(b) The Demand Registration rights granted to Holders in
Section 2.1(a) are subject to the following limitation: (i) each
registration in respect of a Demand Registration Request must include at
least 10% of the Registrable Securities outstanding as of the date hereof
(provided that the limitation set forth in this clause (i) shall not be in
effect at any time the Holders' Registrable Securities would otherwise be
able to be sold under Rule 144 under the Securities Act but for the
Company's failure to comply with the information requirements thereunder,
unless at such time, the Company's outside counsel (which shall be
reasonably acceptable to the Holders requesting such registration) delivers
a written opinion of counsel to such Holders to the effect that such
Registrable Securities may be publicly offered and sold without
registration under the Securities Act); (ii) the Company shall not be
required to cause more than one additional registration pursuant to
Section 2.1(a)(i) to be declared effective within a period of 180 days
after the effective date of any registration statement of the Company
effected in connection with a Demand Registration Request; and (iii) if the
Board of Directors of the Company, in its good faith judgment, determines
that any registration of Registrable Securities should not be made or
continued because in the good faith judgment of the Board of Directors it
presents a reasonable risk that it would materially interfere with, or
require disclosure of, any material financing, acquisition, corporate
reorganization or merger or other transaction involving the Company or any
of its subsidiaries (a "Valid Business Reason"), the Company may postpone
filing a registration statement relating to a Demand Registration Request
(and may postpone filing any amendment to, or supplement of, or seeking
acceleration of, any registration statement previously filed) until such
Valid Business Reason no longer exists, but in no event for more than 120
days, and, in case a registration statement has been filed relating to a
Demand Registration Request if the Valid Business Reason has not resulted
from actions taken by the Company, the Company may cause such registration
statement to be withdrawn and its effectiveness terminated or may postpone
amending or supplementing such registration statement; and the Company
shall give written notice of its determination to postpone or withdraw a
registration statement and of the fact that the Valid Business Reason for
such postponement or withdrawal no longer exists, in each case, promptly
after the occurrence thereof. Notwithstanding anything to the contrary
herein, during any 365-day period, the Company may not suspend the
availability of registration rights hereunder (whether through postponement
of filing a registration statement, withdrawal of a filed registration
statement or the suspension of an effective registration statement)
relating to a Demand Registration Request because of a Valid Business
Reason more than four times or for more than an aggregate of 180 days,
subject to reduction as provided in Section 2.7(a).
Each Holder of Registrable Securities agrees that, upon receipt
of any notice from the Company that the Company has determined to withdraw
any registration statement pursuant to clause (iii) above, such Holder will
discontinue its disposition of Registrable Securities pursuant to such
registration statement and, if so directed by the Company, will deliver to
the Company (at the Company's expense) all copies, other than permanent
file copies, then in such Holder's possession of the prospectus covering
such Registrable Securities that was in effect at the time of receipt of
such notice. If the Company shall have withdrawn or prematurely terminated
a registration statement filed under Section 2.1(a)(i) (whether pursuant to
clause (iii) above or as a result of any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court), the Company shall not be considered to have effected an effective
registration for the purposes of this Agreement until the Company shall
have filed a new registration statement covering the Registrable Securities
covered by the withdrawn registration statement and such registration
statement shall have been declared effective and shall not have been
withdrawn. If the Company shall give any notice of withdrawal or
postponement of a registration statement, the Company shall, at such time
as the Valid Business Reason that caused such withdrawal or postponement no
longer exists (but in no event later than 120 days after the date of the
postponement), use its reasonable best efforts to effect the registration
under the Securities Act of the Registrable Securities covered by the
withdrawn or postponed registration statement in accordance with this
Section 2.1 (unless the Holder(s) making the Demand Registration Request
shall have withdrawn such request, in which case the Company shall not be
considered to have effected an effective registration for the purposes of
this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to
include in any registration statement and offering made pursuant to
Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or
shares of Common Stock held by the Company as treasury shares and (ii) any
other shares of Common Stock which are requested to be included in such
registration pursuant to the exercise of piggyback registration rights
granted by the Company ("Additional Piggyback Rights"); provided, however,
that such inclusion shall be permitted only to the extent that it is
pursuant to and subject to the terms of the underwriting agreement or
arrangements, if any, entered into by the Holder(s) making such Demand
Registration Request. With respect to any Demand Registration, except as
set forth in the preceding sentence no securities other than the
Registrable Securities of the Holder(s) permitted to be included in such
registration pursuant to Section 2.1(a)(ii) shall be included among the
securities covered by such registration.
(d) The managing underwriter for any Demand Registration shall
be either Xxxxxxx Xxxxx & Co. or Xxxxxxx Xxxxx Barney or any successor to
either (such choice to be at the option of the Holder) or such other
underwriter(s) as the Holders and the Company mutually agree in good faith.
(e) The Company shall be obligated to effect not more than
three (3) Demand Registrations, subject to the provisions of Section 2.1
hereof. For purposes of the preceding sentence, a Demand Registration
shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has become effective, (ii) if after such
registration statement has become effective, such registration statement or
the related offer, sale or distribution of Registrable Securities
thereunder is interfered with by any stop order, injunction or other order
or requirement of the Commission or other governmental entity for any
reason not attributable to MET or any other Holder and such interference is
not thereafter eliminated, or (iii) if the conditions to closing specified
in the underwriting agreement entered into in connection with such Demand
Registration are not satisfied or waived, other than by reason of a failure
on the part of MET or any Holder. If the Company shall have complied with
its obligations under this Agreement, a right to a Demand Registration
pursuant to this Section 2.1 shall be deemed to have been satisfied upon
the earlier of (x) the date as of which all of the Registrable Securities
included therein shall have been distributed pursuant to the registration
statement related thereto, and (y) the date as of which such Demand
Registration shall have been Continuously Effective for the applicable
period specified in Section 2.4(b) hereof following the effectiveness of
such registration statement, provided no stop order or similar order, or
proceedings for such an order, is thereafter entered or initiated.
Furthermore, once the Company has filed and caused to be effective a shelf
registration statement in connection with its obligations under section 2.1
hereof, each separate underwritten offering effected pursuant to such shelf
registration statement which satisfies the conditions of the second
sentence of this subsection 2.1(e) (other than the first such underwritten
offering) shall constitute an additional Demand Registration; provided that
such shelf registration statement shall constitute a Demand Registration.
(f) The Holders shall use reasonable best efforts to cause any
distribution of Registrable Securities pursuant to a Demand Registration to
be public and reasonably broad, so long as such breadth does not adversely
impact the price obtained for such Registrable Securities.
2.2 Piggyback Registrations.
(a) If, at any time and from time to time after the
termination of the Merger Agreement, the Company proposes or is required to
register any of its common equity securities under the Securities Act
(other than pursuant to (i) registrations on such form or similar form(s)
solely for registration of securities in connection with an employee
benefit or option plan or dividend reinvestment plan or a merger or
consolidation or (ii) a Demand Registration under Section 2.1) on a
registration statement on Form S-1, Form S-2 or Form S-3 (or an equivalent
general registration form then in effect), whether or not for its own
account, the Company shall give prompt written notice of its intention to
do so to each of the Holders of record of Registrable Securities. Upon the
written request of any Holder, made within 20 days following the receipt of
any such written notice (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof), the Company shall, subject to
Sections 2.2(b), 2.3 and 2.6 hereof, use its reasonable best efforts to
cause all such Registrable Securities, the Holders of which have so
requested the registration thereof, to be registered under the Securities
Act (with the securities which the Company at the time proposes to
register) to permit the sale or other disposition by the Holders (in
accordance with the intended method of distribution thereof) of the
Registrable Securities to be so registered. Notwithstanding anything to
the contrary herein, with respect to any shelf registration statement, the
only piggyback registrations that can occur pursuant to any shelf
registration statement(s) filed by the Company, whether with respect to the
sale of securities by the Company or by a holder or holders of Company
securities, are piggyback registrations on underwritten offerings occurring
pursuant to such shelf registration statement(s); provided that no Holder
shall be entitled to a piggyback registration on any shelf registration
statement filed with respect to any equity securities of the Company where
the proposed methods of distribution under such shelf registration
statement do not include underwritten offerings (including, to the extent
it does not provide for underwritten offerings, any registration statement
filed with respect to Common Stock issuable in exchange for limited
partnership interests in Tower Realty Operating Partnership, L.P. ("Company
OP Units")). No registration effected under this Section 2.2(a) shall
relieve the Company of its obligations to effect Demand Registrations.
There is no limitation on the number of such piggyback registrations under
this Section 2.2 which the Company is obligated to effect. Notwithstanding
the foregoing, no Holder (other than Reckson or a wholly owned subsidiary
of Reckson) shall be entitled to piggyback registration rights pursuant to
this Section 2.1 unless the number of Registrable Securities it proposes
and seeks to have included in a piggyback registration exceeds (assuming
conversion if such shares were Series A Preferred Stock) 1% of the number
of outstanding shares of Common Stock at such time.
(b) If, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date
of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company may, at its election,
give written notice of such determination to all Holders of record of
Registrable Securities and (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such abandoned registration, without
prejudice, however, to the rights of Holders under Section 2.1, and (ii) in
the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other equity securities.
(c) Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw; provided, however, that (i) such request must be made
in writing prior to the earlier of the execution of the underwriting
agreement or the execution of the custody agreement with respect to such
registration and (ii) such withdrawal shall be irrevocable and, after
making such withdrawal, a Holder shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal was
made.
2.3 Allocation of Securities Included in Registration Statement.
(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and an underwriter of such offering shall
advise the Company that, in its view, the number of securities requested to
be included in such registration (including those securities requested by
the Company to be included in such registration) exceeds the largest number
(the "Section 2.1 Sale Number") that can be sold in an orderly manner in
such offering within a price range acceptable to the Holders of a majority
of the Registrable Securities proposed to be registered, the Company shall
include in such registration:
(i) all Registrable Securities requested to be included in
such registration by Holders of Registrable Securities; provided, however,
that, if the number of such Registrable Securities exceeds the Section 2.1
Sale Number, the number of such Registrable Securities (not to exceed the
Section 2.1 Sale Number) to be included in such registration shall be
allocated on a pro rata basis among all Holders requesting that Registrable
Securities be included in such registration, based on the number of
Registrable Securities then owned by each Holder requesting inclusion in
relation to the number of Registrable Securities owned by all Holders
requesting inclusion;
(ii) to the extent that the number of Registrable Securities
to be included by all Holders is less than the Section 2.1 Sale Number,
securities that the Company proposes to register; and
(iii) to the extent that the number of Registrable Securities
to be included by all Holders and the number of securities to be included
by the Company is less than the Section 2.1 Sale Number, any other
securities that the holders thereof propose to register pursuant to the
exercise of Additional Piggyback Rights.
If, as a result of the proration provisions of this Section
2.3(a), any Holder shall not be entitled to include all Registrable
Securities in a registration that such Holder has requested be included,
such Holder may elect to withdraw his request to include Registrable
Securities in such registration or may reduce the number requested to be
included; provided, however, that (x) such request must be made in writing
prior to the earlier of the execution of the underwriting agreement or the
execution of the custody agreement with respect to such registration and
(y) such withdrawal shall be irrevocable and, after making such withdrawal,
a Holder shall no longer have any right to include Registrable Securities
in the registration as to which such withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and an underwriter shall advise the Company that, in
its view, the number of securities requested to be included in such
registration exceeds the number (the "Section 2.2 Sale Number") that can be
sold in an orderly manner in such registration within a price range
acceptable to the Company, the Company shall include in such registration:
(i) all Common Stock or securities convertible into, or
exchangeable or exercisable for, Common Stock that the Company proposes to
register for its own account (the "Company Securities");
(ii) all Common Stock or securities convertible into, or
exchangeable or exercisable for, Common Stock held by any Persons having
piggyback rights which on the date hereof grant such persons a priority
over other Persons that have piggyback rights granted by the Company and
all Common Stock or securities held by any Persons that if not provided
with a priority over other Persons that have piggyback rights granted by
the Company would place the Company in breach of any contractual
obligations that it may have existing on the date hereof (the "Priority
Piggyback Securities"); and
(iii) (x) to the extent that the number of Company Securities
and Priority Piggyback Securities is less than the Section 2.2 Sale Number,
all Registrable Securities requested to be included by all Holders;
provided, however, that, if the number of such Registrable Securities
exceeds the Section 2.2 Sale Number less the number of Company Securities
and Priority Piggyback Securities, then the number of such Registrable
Securities included in such registration shall be allocated on a pro rata
basis among all Holders requesting that Registrable Securities be included
in such registration, based on the number of Registrable Securities owned
by each Holder requesting inclusion in relation to the number of
Registrable Securities then owned by all Holders requesting inclusion; and
(iv) to the extent the number of Company Securities plus the
number of Registrable Securities requested to be included pursuant to
clause (ii) or (iii) above by all Holders is less than the Section 2.2 Sale
Number, any other securities that the holders thereof propose to register
pursuant to the exercise of Additional Piggyback Rights.
2.4 Registration Procedures. If and whenever the Company is
required by the provisions of this Agreement to use its reasonable best
efforts to effect or cause the registration of any Registrable Securities
under the Securities Act as provided in this Agreement, the Company shall,
as promptly as reasonably practicable:
(a) prepare and file with the Commission a registration
statement on an appropriate registration form of the Commission for the
disposition of such Registrable Securities in accordance with the intended
method of disposition thereof, which form (i) shall be selected by the
Company and (ii) shall, in the case of a shelf registration, be available
for the sale of the Registrable Securities by the selling Holders thereof
and such 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
the Company shall use its reasonable best efforts to cause such
registration statement to become and remain effective (provided, however,
that before filing a registration statement or prospectus or any amendments
or supplements thereto, or comparable statements under securities or blue
sky laws of any jurisdiction, the Company will furnish to one counsel for
the Holders participating in the planned offering (selected by the Holders
making the Demand Registration Request, in the case of a registration
pursuant to Section 2.1, and selected by the Holders of a majority of the
Registrable Securities included in such registration, in the case of a
registration pursuant to Section 2.2) and the underwriters, if any, copies
of all such documents proposed to be filed (including all exhibits
thereto), which documents, in the case of a registration pursuant to
Section 2.1 only, will be subject to the reasonable review and reasonable
comment of such counsel, and in the case of a registration pursuant to
Section 2.1 only, the Company shall not file any registration statement or
amendment thereto or any prospectus or supplement thereto to which the
Holders of a majority of the Registrable Securities covered by such
registration statement or the underwriters, if any, shall reasonably object
in writing);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement Continuously Effective for such period (which shall not be
required to exceed 90 days in the case of a registration pursuant to
Section 2.1 or 120 days in the case of a shelf registration pursuant to
Section 2.1 and which shall not have any minimum duration in the case of a
registration pursuant to Section 2.2) as any seller of Registrable
Securities pursuant to such registration statement shall request and to
comply with the provisions of the Securities Act with respect to the sale
or other disposition of all Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish, without charge, to each seller of such
Registrable Securities and each underwriter, if any, of the securities
covered by such registration statement such number of copies of such
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, and other documents, as such seller and
underwriter may reasonably request in order to facilitate the public sale
or other disposition of the Registrable Securities owned by such seller
(the Company hereby consenting to the use in accordance with all applicable
law of each such registration statement (or amendment or post-effective
amendment thereto) and each such prospectus (or preliminary prospectus or
supplement thereto) by each such seller of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such registration statement or
prospectus);
(d) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such registration statement under such
other securities or "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities or any managing underwriter, if any, shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such sellers or underwriter, if
any, to consummate the disposition of the Registrable Securities in such
jurisdictions, except that in no event shall the Company be required to
qualify to do business as a foreign corporation in any jurisdiction where
it would not, but for the requirements of this paragraph (d), be required
to be so qualified, to subject itself to taxation in any such jurisdiction
or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement, and each managing underwriter, if
any: (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 any request by the Commission or state
securities authority for amendments or supplements to the registration
statement or the prospectus related thereto or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement or the initiation of any
proceedings for that purpose; (iv) 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;
(v) of the existence of any fact of which the Company becomes aware which
results in the registration statement, the prospectus related thereto or
any document incorporated therein by reference 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 statement therein not
misleading; and (vi) if at any time the representations and warranties
contemplated by Section 3 below cease to be true and correct in all
material respects; and, if the notification relates to an event described
in clause (v), the Company shall promptly prepare and furnish to each such
seller and each underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon
as reasonably practicable after the effective date of the registration
statement (and in any event within 16 months thereafter), an earnings
statement (which need not be audited) covering the period of at least
twelve consecutive months beginning with the first day of the Company's
first calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if
the listing of such Registrable Securities is then permitted under the
rules of such exchange, or (ii) if no similar securities are then so
listed, to use reasonable efforts to either cause all such Registrable
Securities to be listed on a national securities exchange or to secure
designation of all such Registrable Securities as a National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") "national
market system security" within the meaning of Rule 11Aa2-1 of the
Commission or, failing that, secure NASDAQ authorization for such shares;
(h) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as the
Holders of a majority of the Registrable Securities participating in such
offering shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities, provided that the underwriting
agreement, if any, shall be reasonably satisfactory in form and substance
to the Company. The Holders of the Registrable Securities which are to be
distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, in the case of a registration effected
pursuant to Section 2.1 only, require that the Company make to and for the
benefit of such Holders the representations, warranties and covenants of
the Company which are being made to and for the benefit of such
underwriters and which are of the type customarily provided to
institutional investors in secondary offerings;
(j) use reasonable best efforts to obtain (i) an opinion from
the Company's counsel and a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters
as are customarily covered by such opinions and "cold comfort" letters
delivered to underwriters in underwritten public offerings, which opinion
and letter shall be reasonably satisfactory to the underwriter, if any, and
to the Holders of a majority of the Registrable Securities participating in
such offering, and furnish to each Holder participating in the offering and
to each underwriter, if any, a copy of such opinion and letter and (ii) in
the case of a registration pursuant to Section 2.1 only, an opinion and
cold comfort letter of the type described in the foregoing clause (i), such
opinion to be addressed to each participating Holder and each Underwriter
and such comfort letter to be addressed to each Underwriter;
(k) deliver promptly to each Holder participating in the
offering and each underwriter, if any, copies of all correspondence between
the Commission and the Company, its counsel or auditors and all memoranda
relating to discussions with the Commission or its staff with respect to
the registration statement, other than those portions of any such
correspondence and memoranda which contain information subject to attorney-
client privilege with respect to the Company, and, upon receipt of such
confidentiality agreements as the Company may reasonably request, make
reasonably available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter, if
any, participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement; notwithstanding anything to the contrary contained
in this Agreement, the Company shall not be required to prepare any
financial statements other than its normal quarterly and year-end financial
statements or have any audit performed other than its normal year-end
audit;
(l) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the registration statement;
(m) use its reasonable best efforts to provide a CUSIP number
for all Registrable Securities, not later than the effective date of the
registration statement;
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into
account the needs of the Company's businesses and the requirements of the
marketing process) in the marketing of Registrable Securities in any
underwritten offering;
(o) promptly prior to the filing of any document which is to
be incorporated by reference into the registration statement or the
prospectus (after the initial filing of such registration statement)
provide copies of such document to counsel for the selling holders of
Registrable Securities and to the managing underwriter, if any, and make
the Company's representatives reasonably available for discussion of such
document and make such changes in such document concerning the selling
holders prior to the filing thereof as counsel for such selling holders or
underwriters may reasonably request;
(p) furnish to each Holder participating in the offering and
the managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference) in
connection with the offering;
(q) cooperate with the selling holders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive
legends representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and registered in
such names in accordance with the underwriting agreement prior to any sale
of Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the selling holders of
Registrable Securities at least three business days prior to any sale of
Registrable Securities; and
(r) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition
of such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable
Securities as to which any registration is being effected furnish the
Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request provided
that such information shall be used only in connection with such
registration.
Each Holder of Registrable Securities agrees that upon receipt of
any notice from the Company of the happening of any event of the kind
described in clause (v) of paragraph (e) of this Section 2.4, such Holder
will discontinue such Holder's disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (e) of this Section 2.4 and, if so
directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such
Holder's possession of the prospectus covering such Registrable Securities
that was in effect at the time of receipt of such notice. In the event the
Company shall give any such notice, the applicable period mentioned in
paragraph (b) of this Section 2.4 shall be extended by the number of days
during such period from and including the date of the giving of such notice
to and including the date when each seller of any Registrable Securities
covered by such registration statement shall have received the copies of
the supplemented or amended prospectus contemplated by paragraph (e) of
this Section 2.4.
If any such registration statement or comparable statement under
"blue sky" laws refers to any Holder by name or otherwise as the Holder of
any securities of the Company, then such Holder shall have the right to
require (i) the insertion therein of language, in form and substance
satisfactory to such Holder and the Company, to the effect that the holding
by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by counsel,
required by the Securities Act or any similar federal statute or any state
"blue sky" or securities law then in force, the deletion of the reference
to such Holder.
2.5 Registration Expenses.
(a) "Expenses" shall mean any and all fees and expenses
incident to the Company's performance of or compliance with this Article 2,
including, without limitation: (i) Commission, stock exchange or National
Association of Security Dealers, Inc. registration and filing fees and all
listing fees and fees with respect to the inclusion of securities in
NASDAQ, (ii) fees and expenses of compliance with state securities or "blue
sky" laws and in connection with the preparation of a "blue sky" survey,
including without limitation, reasonable fees and expenses of blue sky
counsel, (iii) printing expenses, (iv) messenger and delivery expenses,
(v) fees and disbursements of counsel for the Company, (vi) with respect to
each registration, the fees and disbursements of one counsel for the
selling Holder(s) (selected by the Holder(s) making the Demand Registration
Request, in the case of a registration pursuant to Section 2.1, and
selected by the Holders of a majority of the Registrable Securities
included in such registration, in the case of a registration pursuant to
Section 2.2) as well as of one local counsel, (vii) fees and disbursements
of all independent public accountants (including the expenses of any audit
and/or "cold comfort" letter) and fees and expenses of other persons,
including special experts, retained by the Company and (viii) any other
fees and disbursements of underwriters, if any, customarily paid by issuers
or sellers of securities (collectively, "Expenses").
(b) The Company shall pay all Expenses with respect to any
Demand Registration that shall not be deemed to have been effected as
contemplated by Section 2.1(b) and any registration effected under Section
2.2. With respect to any Demand Registration effected pursuant to Section
2.1, (i) the Company shall pay all Expenses related to any three Demand
Registrations which any Holder elects to have the Company pay the Expenses
related thereto and (ii) the Holders of Registrable Securities (together
with the Company, if the Company participates in any Demand Registration
pursuant to Section 2.1(c)) shall pay all Expenses related to any other
Demand Registration effected pursuant to Section 2.1 (such Expenses shall
be allocated among the Persons (including the Company, if applicable)
participating in a Demand Registration on a pro rata basis based on the
number of Registrable Securities included in such offering by a Person
relative to the number of Registrable Securities included in such offering
by all Persons, except to the extent Expenses are specifically attributable
to a Person or to securities included in an offering by a Person).
(c) Notwithstanding the foregoing, (x) the provisions of this
Section 2.5 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with "blue sky" laws of each state in which
the offering is made and (y) in connection with any registration hereunder,
each Holder of Registrable Securities being registered shall pay all
underwriting discounts and commissions and any transfer taxes, if any,
attributable to the sale of such Registrable Securities, pro rata with
respect to payments of discounts and commissions in accordance with the
number of shares sold in the offering by such Holder, and (z) the Company
shall, in the case of all registrations under this Article 2, be
responsible for all its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties). Notwithstanding anything to the contrary contained in
this Agreement, the Company should not be liable for any underwriting
discounts or commissions or any portion of any underwriting spread in
respect of securities sold for the account of any Person (including the
Holders) other than the Company.
2.6 Certain Limitations on Registration Rights. In the case of
any registration under Section 2.1 pursuant to an underwritten offering, or
in the case of a registration under Section 2.2 if the Company has
determined to enter into an underwriting agreement in connection therewith,
all Registrable Securities to be included in such registration shall be
subject to an underwriting agreement and no person may participate in such
registration unless such person agrees to sell such person's securities on
the basis provided therein and completes and executes all reasonable
questionnaires, and other documents (other than powers of attorney) which
must be executed in connection therewith, and provides such other
information to the Company or the underwriter as may be necessary to
register such Holder's Registrable Securities.
2.7 Limitations on Sale or Distribution of Other Securities.
(a) If requested in writing by the Company or the managing
underwriter, if any, of any registration effected by the Company, each
Holder of Registrable Securities agrees not to effect any public sale or
distribution, including any sale pursuant to Rule 144 under the Securities
Act, of any Registrable Securities, or of any other equity security of the
Company or of any security convertible into or exchangeable or exercisable
for any equity security of the Company (other than as part of such
underwritten public offering) during the time period reasonably requested
by the managing underwriter, not to exceed 90 days after effectiveness of
such registration (and the Company hereby also so agrees with respect to
any registration effected pursuant to Section 2.1 (except that the Company
may effect any sale or distribution of any such securities pursuant to a
registration on Form S-4 or Form S-8, or any successor or similar form
which is then in effect, a registration in connection with any employee
benefit or option plan or a registration in connection with any acquisition
of a business or property or a registration with respect to Common Stock
issuable in exchange for Company OP Units) and agrees to use its reasonable
best efforts to cause each holder of any equity security or of any security
convertible into or exchangeable or exercisable for any equity security of
the Company purchased from the Company at any time other than in a public
offering so to agree). If the sum of (i) the number of days for which the
Holders' ability to effect sales are restricted pursuant to a request made
under this Section 2.7(a) (a "holdback period") and (ii) the number of days
for which registration rights were not available pursuant to Section
2.1(b)(iii) during the 365-day period immediately preceding the end of the
holdback period described in the foregoing clause (a) would exceed 180,
then the Company will have no right to suspend availability of registration
rights under Section 2.1(b)(iii) or restrict the Holders' ability to effect
sales under this Section 2.7(a), in each case, for a period of 90 days
following the end of the holdback period and the number of days that the
Company may suspend the availability of registration rights under Section
2.1(b)(iii) during the 365-day period following the end of the holdback
period will be reduced by the number of days in the holdback period.
(b) The Company hereby agrees that, if it shall previously
have received a request for registration pursuant to Section 2.1 or 2.2,
and if such previous registration shall not have been withdrawn or
abandoned, the Company shall not, without the prior written consent of the
Holders who made the Demand Registration Request, in the case of a
registration pursuant to Section 2.1, or the Holders of a majority of the
Registrable Securities included in such registration, in the case of a
registration pursuant to Section 2.2, effect any registration of any of its
securities under the Securities Act (other than a registration on Form S-4
or Form S-8 or any successor or similar form which is then in effect, a
registration in connection with any employee benefit or option plan, a
registration in connection with any acquisition of a business or property
or a registration with respect to Common Stock issuable in exchange for
Company OP Units), whether or not for sale for its own account, until a
period of 90 days shall have elapsed from the effective date of such
previous registration; and the Company shall so provide in any registration
rights agreements hereafter entered into with respect to any of its
securities.
2.8 No Required Sale. Nothing in this Agreement shall be deemed
to create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
2.9 Indemnification.
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to this Article 2, the Company
will, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, the seller of any Registrable Securities covered by such
registration statement, its directors, officers, fiduciaries, employees and
stockholders or general and limited partners (and the directors, officers,
employees and stockholders thereof), each other individual, partnership,
joint venture, corporation, trust, unincorporated organization or
government or any department or agency thereof (each, a "Person") who
participates as an underwriter in the offering or sale of such securities,
each officer, director, employee, stockholder or partner of such
underwriter, and each other Person, if any, who controls such seller or any
such underwriter within the meaning of the Securities Act, against any and
all losses, claims, damages or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof ("Claims")
and expenses (including reasonable fees of counsel and any amounts paid in
any settlement effected with the Company's consent) to which each such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such Claims or expenses arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained
in any registration statement under which such securities were registered
under the Securities Act or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary, final or
summary prospectus or any amendment or supplement thereto, together with
the documents incorporated by reference therein, or the omission or alleged
omission to state therein 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, or (iii) any
violation by the Company of any federal, state or common law rule or
regulation applicable to the Company and relating to action required of or
inaction by the Company in connection with any such registration, and the
Company will reimburse any such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim as such expenses are incurred;
provided, however, that the Company shall not be liable to any such
indemnified party in any such case to the extent such Claim or expense
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact made in such registration statement or amendment thereof or supplement
thereto or in any such prospectus or any preliminary, final or summary
prospectus or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such
indemnified party (or to the extent provided in an underwriting agreement,
any underwriter) specifically for use therein. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified party and
shall survive the transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 2.1 or 2.2 is
being effected (each, an "Included Holder") (and, if the Company requires
as a condition to including any Registrable Securities in any registration
statement filed in accordance with Section 2.1 or 2.2, any underwriter)
shall, severally and not jointly and if MET or any of its Affiliates are an
Included Holder, Reckson, MET, its subsidiaries and Included Holders that
are Affiliates of MET jointly and severally with each other, but severally
and not jointly with respect to other Holders, indemnify and hold harmless
(in the same manner and to the same extent as set forth in paragraph (a) of
this Section 2.9) to the extent permitted by law the Company, its officers
and directors, each Person controlling the Company within the meaning of
the Securities Act and all other prospective sellers and their directors,
officers, general and limited partners and respective controlling Persons
with respect to any untrue statement or alleged untrue statement of any
material fact in, or omission or alleged omission of any material fact
from, such registration statement, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, if
such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company or its representatives by or on behalf of such Holder or
underwriter specifically for use therein and reimburse such indemnified
party for any legal or other expenses reasonably incurred in connection
with investigating or defending any such Claim as such expenses are
incurred; provided, however, that the aggregate amount which any such
Holder shall be required to pay pursuant to this Section 2.9(b) and
Sections 2.9(c) and (e) shall in no case be greater than the amount of the
gross proceeds net of underwriting discounts and commissions received by
such person upon the sale of the Registrable Securities pursuant to the
registration statement giving rise to such claim. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified party and
shall survive the transfer of such securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities
with respect to any required registration or other qualification of
securities under any state securities and "blue sky" laws.
(d) Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure
of any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of
this Section 2.9, except to the extent the indemnifying party is materially
prejudiced thereby and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
this Article 2. In case any action or proceeding is brought against an
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, to
assume the defense thereof jointly with any other indemnifying party
similarly notified, to the extent that it chooses, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if the indemnifying party fails
to take reasonable steps necessary to defend diligently the action or
proceeding within 20 days after receiving notice from such indemnified
party that the indemnified party believes it has failed to do so; or
(ii) if such indemnified party who is a defendant in any action or
proceeding which is also brought against the indemnifying party reasonably
shall have concluded that there may be one or more legal defenses available
to such indemnified party which are not available to the indemnifying
party; or (iii) if representation of both parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct,
then, in any such case, the indemnified party shall have the right to
assume or continue its own defense as set forth above (but with no more
than one firm of counsel for all indemnified parties in each jurisdiction,
except to the extent any indemnified party or parties reasonably shall have
concluded that there may be legal defenses available to such party or
parties which are not available to the other indemnified parties or to the
extent representation of all indemnified parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct)
and the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable
or is insufficient to hold harmless an indemnified party under Sections
2.9(a), (b) or (c), except by reason of the proviso contained in Section
2.9(a), then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative fault and relative
benefit of the indemnifying party, on one hand, and the indemnified party,
on the other hand, with respect to such offering of securities as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that
it would not be just and equitable if contributions pursuant to this
Section 2.9(e) were to be 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 preceding sentences of this Section
2.9(e). The amount paid or payable in respect of any Claim shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
Claim. 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. Notwithstanding anything in this Section 2.9(e) to the
contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 2.9(e) to contribute any amount in excess of the
gross proceeds net of underwriting discounts and commissions received by
such indemnifying party from the sale of Registrable Securities in the
offering to which the losses, claims, damages or liabilities of the
indemnified parties relate, less the amount of any indemnification payment
made by such indemnifying party pursuant to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made
or omitted by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this
Section 2.9 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
3 Underwritten Offerings. If requested by the underwriters for any
underwritten offering by the Holders pursuant to a registration requested
under Section 2.1, the Company shall enter into a customary underwriting
agreement with the underwriters. Such underwriting agreement shall be
satisfactory in form and substance to a majority of the Holders which
requested such registration and shall contain such representations and
warranties by, and such other agreements on the part of, the Company and
such other terms as are generally prevailing in agreements of that type,
including, without limitation, indemnities and contribution agreements.
Any Holder participating in the offering shall be a party to such
underwriting agreement and may, at its option, in the case of a
registration effected pursuant to Section 2.1 only, require that any or all
of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such Holder and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Holder; provided, however, that the Company shall not be required to make
any representations or warranties with respect to written information
specifically provided by a selling Holder for inclusion in the registration
statement. Such underwriting agreement shall also contain such
representations and warranties by the participating Holders as are
customary in agreements of that type.
4 General.
4.1 Rule 144. The Company covenants that (i) so long as it
remains subject to the reporting provisions of the Exchange Act, it will
timely file the reports required to be filed by it under the Securities Act
or the Exchange Act (including, but not limited to, the reports under
Sections 13 and 15(d) of the Exchange Act referred to in subparagraph
(c)(1) of Rule 144 under the Securities Act), and (ii) will take such
further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (A) Rule 144 under
the Securities Act, as such Rule may be amended from time to time, or
(B) any similar rule or regulation hereafter adopted by the Commission.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
4.2 Nominees for Beneficial Owners. If Registrable Securities
are held by a nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its option, be treated as the Holder of such
Registrable Securities for purposes of any request or other action by any
Holder or Holders of Registrable Securities pursuant to this Agreement (or
any determination of any number or percentage of shares constituting
Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement), provided that the Company shall
have received assurances reasonably satisfactory to it of such beneficial
ownership.
4.3 Amendments and Waivers. This Agreement may be amended,
modified, supplemented or waived only upon the written agreement of the
Company, MET (so long as it or any of its Affiliates holds Registrable
Securities) and a majority of the Holders.
4.4 Notices. Except as otherwise provided in this Agreement,
all notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or by telecopy, nationally recognized overnight courier
or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth below or
such other address as may hereafter be designated in writing by such party
to the other parties:
(i) if to the Company, to:
Tower Realty Trust, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
(ii) if to MET, to:
Metropolitan Partners LLC
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, General Counsel
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, P.C.
(iii) if to any other Holder, to the address provided by
such Holder to the Company upon becoming a Holder.
All such notices, requests, consents and other communications
shall be deemed to have been given when received.
4.5 Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors, personal representatives and assigns of the parties hereto,
whether so expressed or not. No Person other than a Holder and the Company
shall be entitled to any benefits under this Agreement, except as otherwise
expressly provided herein. No Person who obtains securities in violation
of Section 3.3 of the Purchase Agreement shall be entitled to any benefits
under this Agreement. This Agreement and the rights of MET hereunder may
be assigned by MET to up to five transferees of Registrable Securities
(excluding for this clause any transfer to an Affiliate of MET) provided
that upon the consummation of, and as a condition to, any such assignment
the transferee assumes the obligations of the assignor under, and agrees to
be bound by the terms of, this Agreement. Any transferee of MET or its
Affiliates may assign in whole, but not in part, its rights under this
Agreement to a transferee of Registrable Securities. Any Holder assigning
registration rights hereunder to a transferee of Registrable Securities
(excluding transfers by MET to its Affiliates) must notify the Company in
writing of such transfer (and the identity of such transferee) within five
business days of such transfer.
(b) This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
(c) This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York without
giving effect to the conflicts of law principles thereof.
(d) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
All section references are to this Agreement unless otherwise expressly
provided.
(e) 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 instrument.
(f) Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of
this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction.
(g) It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them
and that in the event of any such failure, an aggrieved person will be
irreparably damaged and will not have an adequate remedy at law. Any such
person, therefore, shall be entitled to injunctive relief, including
specific performance, to enforce such obligations, without the posting of
any bond, and, if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise
the defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents
as any other party hereto reasonably may request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
4.6 No Inconsistent Agreements. Without the prior written
consent of a majority of the Holders, neither the Company nor any Holder
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities which is inconsistent with the rights granted in
this Agreement or otherwise conflicts with the provisions hereof, other
than any lock-up agreement with the underwriters in connection with any
registered offering effected hereunder, pursuant to which the Company shall
agree not to register for sale, and the Company shall agree not to sell or
otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, for a specified period not to
exceed 90 days following the registered offering; provided that this
Section 4.6 shall in no way limit the obligations of the Company under
Sections 2.1 and 2.7 hereof.
4.7 Subsidiaries of Reckson. With respect to all Holders that
are wholly owned subsidiaries of Reckson (x) all rights shall be exercised
on their behalf by MET, (y) all notices given to MET shall be deemed to
have been given to such Holders and (z) all notifications required to be
given to such Holders shall be deemed given to them upon notification to
MET.
4.8 Termination. This Agreement may be terminated at any time
by a written instrument signed by all Holders and the Company. Unless
sooner terminated in accordance with the preceding sentence, this Agreement
shall terminate in its entirety on the earliest of (i) the tenth
anniversary of the date hereof, (ii) the later of (a) the fifth anniversary
of the date hereof and (b) such time as three (3) Demand Registrations
shall have been deemed satisfied pursuant to Section 2.1 hereof or
(iii) the date on which no Holder beneficially owns more than 1% of the
outstanding Common Stock; provided that so long as the Holders have
registration rights under Section 2.1 available, this Agreement will not
terminate pursuant to this clause (iii) unless MET and its Affiliates
beneficially own, collectively, less than 0.5% of the outstanding Common
Stock. Notwithstanding anything to the contrary herein, Sections 2.5 and
2.9 shall survive termination of this Agreement with respect to
registration statements filed prior to such termination.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
TOWER REALTY TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
METROPOLITAN PARTNERS LLC
By: Reckson Operating Partnership, L.P.,
a member
By: Reckson Associates Realty Corp.,
its sole general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Solely for purposes of agreeing to be bound by and subject to the
provisions of Section 2.9(b):
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
