1
EXHIBIT 10.2
================================================================================
FORM OF
REGISTRATION RIGHTS AGREEMENT
DATED AS OF ___ ___, 1998
BY AND AMONG
PRESIDIO GOLF TRUST
AND
THE PERSONS LISTED ON THE SIGNATURE PAGE HERETO
================================================================================
2
TABLE OF CONTENTS
1. Definitions........................................................... 1
2. Shelf Registration Under the Securities Act........................... 3
(a) Filing of Shelf Registration Statement.......................... 3
(b) Expenses........................................................ 3
(c) Inclusion in Shelf Registration Statement....................... 3
3. Holdback Agreements................................................... 4
4. Registration Procedures............................................... 4
5. Indemnification; Contribution......................................... 8
(a) Indemnification by the Company.................................. 8
(b) Indemnification by Holders...................................... 9
(c) Conduct of Indemnification Proceedings.......................... 9
(d) Contribution.................................................... 10
6. Rule 144 Sales........................................................ 11
7. Miscellaneous......................................................... 11
(a) Amendments and Waivers.......................................... 11
(b) Notices......................................................... 11
(c) Successors and Assigns.......................................... 11
(d) Counterparts.................................................... 12
(e) Headings........................................................ 12
(f) Governing Law................................................... 12
(g) Specific Performance............................................ 12
(h) Entire Agreement................................................ 12
(i) Limitation of Liability of Shareholders and
Officers of the Company......................................... 12
i
3
SCHEDULE A
The attached form is substantially identical in all material respects
except as to the parties thereto which are as follows:
1. Presidio Golf Trust and Xxxxxx Xxxxxx Golf Management LLC;
2. Presidio Golf Trust and Olympus Chicago Hotels, L.P.; and
3. Presidio Golf Trust and TLG, L.L.C.
The property agreements referenced in the form Registration Rights
Agreement vary according the above-listed parties.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of ___ __, 1998, by and among PRESIDIO GOLF TRUST (the "Company") and
the persons listed on the signature page hereto, including their successors,
assigns and transferees (herein referred to collectively as the "Holders" and
individually as a "Holder").
WHEREAS, on the date hereof Holder will become the owner of Units (as
defined herein) which shall be exchangeable for Shares (as defined herein) in
connection with one or more of the transactions (the "Transaction")
contemplated by that certain [INSERT DESCRIPTION OF AGREEMENTS]; and
WHEREAS, as a condition to the Transaction, the parties are willing to
enter into the agreements contained herein;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Common Shares" shall mean the common shares of beneficial interest, par
value $.01 per share, of the Company.
"Company" shall mean Presidio Golf Trust, a Maryland real estate
investment trust, and its successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Holder" or "Holders" shall mean the persons listed on the signature page
hereto, including their successors, assigns and transferees.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization or other legal entity or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in the Shelf Registration
Statement,
4
including any preliminary prospectus, and any amendment or supplement thereto,
including any supplement relating to the terms of the offering of any portion
of the Registrable Securities covered by the Shelf Registration Statement, and
in each case including all material incorporated by reference therein.
"Registrable Securities" shall mean the Shares, excluding (i) Shares that
have been disposed of under the Shelf Registration Statement or any other
effective registration statement, (ii) Shares that have been issued to the
Holder pursuant to an effective registration statement, (iii) Shares sold or
otherwise transferred pursuant to Rule 144 under the Securities Act, (iv)
Shares that are held by Holders who are not affiliates of the Company that are
eligible for sale pursuant to Rule 144 under the Securities Act, and (v) Shares
held by each Holder who is an affiliate of the Company if all of such Shares
are eligible for sale pursuant to Rule 144 under the Securities Act and could
be sold in one transaction in accordance with the volume limitations contained
in Rule 144(e)(1)(i) under the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation: (i) all applicable registration and filing fees imposed by the
SEC, the New York Stock Exchange or the National Association of Securities
Dealers, Inc. ("NASD"), (ii) all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including reasonable fees
and disbursements of counsel in connection with qualification of any of the
Registrable Securities under any state securities or blue sky laws and the
preparation of a blue sky memorandum) and compliance with the rules of the
NASD, (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing the Shelf Registration Statement,
any Prospectus, certificates and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on
any securities exchange or exchanges pursuant to Section 4(l) hereof, and (v)
the fees and disbursements of counsel for the Company and of the independent
public accountants of the Company. Registration Expenses shall specifically
exclude underwriting discounts and commissions, the fees and disbursements of
counsel representing a selling Holder or any underwriter or agent acting on
behalf of a Holder, and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a selling Holder pursuant to the Shelf
Registration Statement or Rule 144 under the Securities Act, all of which shall
be borne by such Holder in all cases.
"Registration Notice" shall have the meaning set forth in Section 4(b)
hereof.
"Registration Statement" or the "Shelf Registration Statement" shall mean
a registration statement of the Company (and any other entity required to be a
registrant with respect to such registration statement pursuant to the
requirements of the Securities Act) that covers all of the Registrable
Securities to be offered on a delayed or continuous basis pursuant to Rule 415
under the
2
5
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments (including post-effective amendments) to such registration
statement, and all exhibits thereto and materials incorporated by reference
therein.
"S-3 Eligibility Date" shall mean [FIRST ANNIVERSARY OF CLOSING], 1999.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shares" shall mean any Common Shares exchangeable for Units issued to
Holders on the date hereof in connection with the Transaction.
"Shelf Registration" shall mean a registration required to be effected
pursuant to Section 2 hereof.
"Transaction" shall have the meaning set forth in the first recital
hereof.
"Units" shall mean the limited partnership interests of Presidio Golf
Limited Partnership which are issued to Holder on the date hereof in connection
with the Transaction and which shall be exchangeable for Shares of the Company.
2. SHELF REGISTRATION UNDER THE SECURITIES ACT.
(a) FILING OF SHELF REGISTRATION STATEMENT. The Company shall cause
to be filed within the first thirty business days following the S-3
Eligibility Date, or as soon as practicable thereafter, the Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities in accordance with the terms hereof and will use
its reasonable efforts to cause such Shelf Registration Statement to be
declared effective by the SEC as soon thereafter as is practicable. The
Company agrees to use its reasonable efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act
until the Shares are no longer Registrable Securities. Subject to
Sections 4(b), 4(i) and 5, the Company further agrees to amend the Shelf
Registration Statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company for
such Shelf Registration Statement or by the Securities Act or any rules
and regulations thereunder.
(b) EXPENSES. Except as provided herein, the Company shall pay all
Registration Expenses in connection with the registration pursuant to
Section 2(a).
3
6
(c) INCLUSION IN SHELF REGISTRATION STATEMENT. Any Holder who does
not provide the information reasonably requested by the Company in
connection with the Shelf Registration Statement as promptly as
practicable after receipt of such request, but in no event later than ten
(10) days thereafter, shall not be entitled to have its Registrable
Securities included in the Shelf Registration Statement.
3. HOLDBACK AGREEMENTS.
Each Holder, in the event the Company is issuing shares of beneficial
interest to the public in an underwritten offering, agrees, if requested by the
managing underwriter or underwriters for such underwritten offering, not to
effect any public sale or distribution of Registrable Securities or any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act, during the 14 days prior to, and
during the 90-day period beginning on, the effective date of such underwritten
offering.
4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to the
Shelf Registration Statement contemplated by Section 2 hereof, the Company
shall:
(a) prepare and file with the SEC, within the time period set forth
in Section 2 hereof, the Shelf Registration Statement, which Shelf
Registration Statement shall (i) be available for the sale of the
Registrable Securities in accordance with the intended method or methods
of distribution by the selling Holders thereof and (ii) comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith;
(b) subject to the last three sentences of this Section 4(b) and
Section 4(i) hereof, (i) prepare and file with the SEC such amendments to
such Shelf Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the applicable period; (ii) cause the
Prospectus to be amended or supplemented as required and to be filed as
required by Rule 424 or any similar rule that may be adopted under the
Securities Act; (iii) respond as promptly as practicable to any comments
received from the SEC with respect to the Shelf Registration Statement or
any amendment thereto; and (iv) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered
by such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
selling Holders thereof. Notwithstanding anything to the contrary
contained herein, the Company shall not be required to take any of the
actions described in clauses (i), (ii) or (iii) in this
4
7
Section 4(b), Section 4(d) or Section 4(i) with respect to each Holder of
Registrable Securities (x) to the extent that the Company is in
possession of material non-public information that it deems advisable not
to disclose or is engaged in active negotiations or planning for a merger
or acquisition or disposition transaction and it delivers written notice
to each such Holder of Registrable Securities to the effect that such
Holder may not make offers or sales under the Shelf Registration
Statement for a period not to exceed sixty (60) days from the date of
such notice; provided, however, that the Company may deliver only two
such notices within any twelve-month period, (y) unless and until the
Company has received a written notice (a "Registration Notice") from a
Holder that such Holder intends to make offers or sales under the Shelf
Registration Statement; provided, however, that the Company shall have
ten (10) business days to prepare and file any such amendment or
supplement after receipt of the Registration Notice or such longer period
as is reasonably necessary if such preparation and filing are not
commercially practicable within ten (10) business days or (z) to the
extent the Company elects pursuant to Section 5 hereof to purchase the
Shares which are the subject of the Registration Notice. Once a Holder
has delivered a Registration Notice to the Company, such Holder shall
promptly provide to the Company such information as the Company
reasonably requests in order to identify such Holder and the method of
distribution in a post-effective amendment to the Registration Statement
or a supplement to the Prospectus. Such Holder also shall notify the
Company in writing upon completion of such offer or sale or at such time
as such Holder no longer intends to make offers or sales under the
Registration Statement;
(c) furnish to each Holder of Registrable Securities that has
delivered a Registration Notice to the Company, without charge, as many
copies of each Prospectus and any amendment or supplement thereto as such
Holder may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities; the Company consents to
the use of the Prospectus and any amendment or supplement thereto by each
such Holder of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or amendment
or supplement thereto;
(d) use its reasonable efforts to register or qualify the
Registrable Securities by the time the Shelf Registration Statement is
declared effective by the SEC under all applicable state securities or
blue sky laws of such jurisdictions in the United States and its
territories and possessions as any Holder of Registrable Securities
covered by the Shelf Registration Statement shall reasonably request in
writing, keep each such registration or qualification effective during
the period such Registration Statement is required to be kept effective
or during the period offers or sales are being made by a Holder that has
delivered a Registration Notice to the Company, whichever is shorter;
provided, however, that in connection therewith, the Company shall not be
required to (i) qualify as a foreign corporation to do business or to
register as a broker or dealer in any such jurisdiction where
5
8
it would not otherwise be required to qualify or register but for this
Section 4(d), (ii) subject itself to taxation in any such jurisdiction,
or (iii) file a general consent to service of process in any such
jurisdiction;
(e) notify each Holder of Registrable Securities that has delivered
a Registration Notice to the Company promptly and, if requested by such
Holder, confirm in writing, (i) when the Registration Statement and any
post-effective amendments thereto have become effective, (ii) when any
amendment or supplement to the Prospectus has been filed with the SEC,
(iii) of the issuance by the SEC or any state securities authority of any
stop order suspending the effectiveness of the Registration Statement or
any part thereof or the initiation of any proceedings for that purpose,
(iv) if the Company receives any notification with respect to the
suspension of the qualification of the Registrable Securities for offer
or sale in any jurisdiction or the initiation of any proceeding for such
purpose, and (v) of the happening of any event during the period the
Registration Statement is effective as a result of which (A) such
Registration Statement contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) the
Prospectus as then amended or supplemented contains any untrue statement
of a material fact or omits to state any material fact necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement or
any part thereof as promptly as possible;
(g) upon request, furnish to each Holder of Registrable Securities
that has delivered a Registration Notice to the Company, without charge,
at least one conformed copy of the Shelf Registration Statement and any
post-effective amendment thereto (without documents incorporated therein
by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold; and enable certificates
for such Registrable Securities to be issued for such numbers of shares
and registered in such names as the selling Holders may reasonably
request at least two business days prior to any sale of Registrable
Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon
the occurrence of any event contemplated by clause (x) of Section 4(b) or
clause (v) of Section 4(e) hereof, use its reasonable efforts promptly to
prepare and file an amendment or a supplement to the Prospectus or any
document incorporated therein by reference or
6
9
prepare, file and obtain effectiveness of a post-effective amendment to
the Registration Statement, or file any other required document, in any
such case to the extent necessary so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus as then amended
or supplemented will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
are made, not misleading;
(j) in its sole discretion register any other Common Shares in the
Shelf Registration Statement;
(k) a reasonable time prior to the filing of any Registration
Statement or any amendment thereto, or any Prospectus or any amendment or
supplement thereto, provide copies of such document (not including any
documents incorporated by reference therein unless requested) to the
Holders of Registrable Securities that have provided a Registration
Notice to the Company;
(l) use its reasonable efforts to cause all Registrable Securities
to be listed on any securities exchange on which similar securities
issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the Shelf Registration Statement;
The Company may require each Holder of Registrable Securities to furnish
to the Company in writing such information regarding the proposed distribution
by such Holder of such Registrable Securities as the Company may from time to
time reasonably request in writing.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 2 hereof and
this Section 4, each Holder covenants and agrees that (i) it will not offer or
sell any Registrable Securities under the Shelf Registration Statement until it
has provided a Registration Notice pursuant to Section 4(b) and has received
copies of the Prospectus as then amended or supplemented as contemplated by
Section 4(c) and notice from the Company that the Registration Statement and
any post-effective amendments thereto have become effective as contemplated by
Section 4(e); (ii) upon receipt of any notice from the Company contemplated by
Section 4(b) (in respect of the occurrence of an event contemplated by clause
(x) of Section 4(b)) or Section 4(e) (in respect of the occurrence of an event
contemplated by clause (v) of Section 4(e)), such Holder shall not offer or
sell any Registrable Securities pursuant to the Shelf Registration Statement
until such Holder receives copies of the supplemented or amended Prospectus
contemplated by Section 4(i) hereof and receives notice that any post-effective
amendment has become effective, and, if so directed by the Company, such Holder
will deliver to the Company (at the expense of the Company) all copies in its
possession, other than permanent file
7
10
copies then in such Holder's possession, of the Prospectus as amended or
supplemented at the time of receipt of such notice; (iii) all offers and sales
by such Holder under the Registration Statement must be completed within sixty
(60) days after the first date on which offers or sales can be made pursuant to
clause (i) above, and upon expiration of such sixty (60) day period, the Holder
may not offer or sell any Registrable Securities under the Registration
Statement until it has again complied with the provisions of clause (i) above;
(iv) such Holder and any of its officers, directors or affiliates, if any, must
comply with the provisions of Regulation M under the Exchange Act as applicable
to them in connection with sales of Registrable Securities pursuant to the
Shelf Registration Statement; and (v) such Holder and any of its partners,
officers, trustees, directors or affiliates, if any, must enter into such
written agreements as the Company shall reasonably request to ensure compliance
with clause (iv) above.
5. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless each Holder and its officers and directors and each
Person, if any, who controls any Holder within the meaning of Section 15
of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to which such Holder, officer,
director or controlling Person may become subject under the
Securities Act or otherwise (A) that arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or any amendment
thereto, 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 or (B) that arise out of or
are based upon any untrue statement or alleged untrue statement of
a material fact contained in any Prospectus or any amendment or
supplement thereto, or the omission or alleged omission to state
therein 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 and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or alleged untrue statement or any omission or alleged
omission contained in the Shelf Registration Statement, if such
settlement is effected with the written consent of the Company; and
(iii) subject to the limitations set forth in Section 5(c),
against any and all
8
11
expense whatsoever, as incurred (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 based upon any such untrue statement or alleged untrue
statement or omission or alleged 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
5(a) shall not apply to any Holder with respect to any loss, liability,
claim, damage or expense that arise out of or are based upon any untrue
statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto.
(b) INDEMNIFICATION BY HOLDERS. Each Holder severally agrees to
indemnify and hold harmless the Company and the other selling Holders,
and each of their respective directors and officers (including each
director and officer of the Company who signed the Registration
Statement), and each Person, if any, who controls the Company or any
other selling Holder within the meaning of Section 15 of the Securities
Act, to the same extent as the indemnity contained in Section 5(a)
hereof, but only insofar as such loss, liability, claim, damage or
expense arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in the Shelf
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by such selling Holder for
use therein relating to the Holder's status as a selling security holder.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Each indemnified party
shall give reasonably prompt notice to each indemnifying party of any
action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify an indemnifying party
(i) shall not relieve it from any liability which it may have under the
indemnity agreement provided in Section 5(a) or (b) above, unless and to
the extent it did not otherwise learn of such action and the lack of
notice by the indemnified party materially prejudices the indemnifying
party or 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 obligation provided under Section 5(a) or
(b) above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, at its option, jointly with any other
indemnifying party so notified, to assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen
by such
9
12
indemnifying party and approved by the indemnified party, which approval
shall not be unreasonably withheld; provided, however, that, if the
defendants in any such action or proceeding include both the indemnified
party and the indemnifying party and the indemnified party reasonably
determines, upon advice of counsel, that a conflict of interest exists or
that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the
indemnifying party, then the indemnified party shall be entitled to one
separate counsel, the reasonable fees and expenses of which shall be paid
by the indemnifying party. If the indemnifying party does not assume the
defense of any such action or proceeding, after having received the
notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel
(which shall be limited to a single law firm) for the indemnified party.
In such event, however, the indemnifying party will not be liable for any
settlement effected without the written consent of such indemnifying
party. If the indemnifying party assumes the defense of any such action
or proceeding in accordance with this paragraph, such 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 except as set forth in the proviso in the second sentence of
this Section 5(c).
(d) CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided
for in this Section 5 is for any reason held to be unenforceable although
applicable in accordance with its terms, the Company and the selling
Holders shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company and the selling Holders, in such
proportion as is appropriate to reflect the relative fault of the Company
on the one hand and the selling Holders on the other (in such proportions
that the selling Holders are severally, not jointly, responsible for the
balance), in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative fault of the
indemnifying party and indemnified parties 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, such indemnifying party or the
indemnified parties, and the parties' relative intent, pledge, access to
information and opportunity to correct or prevent such action. The
parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
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
10
13
from any Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5(d), each Person, if any, who controls a
Holder within the meaning of Section 15 of the Securities Act and
directors and officers of a Holder shall have the same rights to
contribution as such Holder, and each director of the Company, each
officer of the Company who signed the Registration Statement and each
Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the
Company.
6. RULE 144 SALES.
In connection with any sale, transfer or other disposition by any Holder
of any Registrable Securities pursuant to Rule 144 under the Securities Act,
the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, and enable certificates for such Registrable Securities to be for such
number of shares and registered in such names as the selling Holders may
reasonably request at least two business days prior to any sale of Registrable
Securities. The Company's obligation set forth in the previous sentence shall
be subject to the delivery, if reasonably requested by the Company or its
transfer agent, by counsel to such Holder, in form and substance reasonably
satisfactory to the Company and its transfer agent, of an opinion that such
Securities Act legend need not appear on such certificate.
7. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified,
supplemented or waived, nor may consent to departures therefrom be given,
without the written consent of the Company and the Holders of a majority
of the outstanding Registrable Securities, provided, however, that no
amendment, modification, supplement or waiver of, or consent to the
departure from, the provisions of Sections 2, 5 or 6 hereof shall be
effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities. Notice
of any such amendment, modification, supplement, waiver or consent
adopted in accordance with this Section 7(a) shall be provided by the
Company to each Holder of Registrable Securities at least thirty (30)
days prior to the effective date of such amendment, modification,
supplement, waiver or consent.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery, (i) if to a Holder, at such Holder's registered
address appearing on the Share register of the Company; or (ii) if to the
Company, at San Francisco Executive Xxxxxxx, Xxxxxxxx 000, Xxxxxxxxxx
Xxxxxx, Presidio
11
14
Main Post, X.X. Xxx 00000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxx Xxxxxxx.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; or at the time delivered if delivered by an air courier
guaranteeing overnight delivery.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation, subsequent Holders.
If any successor, assignee or transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding Registrable
Securities such Person shall be conclusively deemed to have agreed to be
bound by all of the terms and provisions hereof.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland without
giving effect to the conflicts of law provisions thereof.
(g) SPECIFIC PERFORMANCE. The parties hereto acknowledge 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 compel specific performance of the
obligations of any other party under this Agreement in accordance with
the terms and conditions of this Agreement in any court of the United
States or any State thereof having jurisdiction.
(h) ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained
12
15
herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(i) LIMITATION OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OFFICERS
OF THE COMPANY. ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE COMPANY
WHICH MAY ARISE AT ANY TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR
LIABILITY WHICH MAY BE INCURRED BY IT PURSUANT TO ANY OTHER INSTRUMENT,
TRANSACTION OR UNDERTAKING CONTEMPLATED HEREBY SHALL BE SATISFIED, IF AT
ALL, OUT OF THE COMPANY'S ASSETS ONLY. NO SUCH OBLIGATION OR LIABILITY
SHALL BE PERSONALLY BINDING UPON, NOR SHALL RESORT FOR THE ENFORCEMENT
THEREOF BE HAD TO, THE PROPERTY OF ANY OF ITS SHAREHOLDERS, TRUSTEES,
OFFICERS, EMPLOYEES OR AGENTS (SOLELY AS A RESULT OF THEIR STATUS AS
SHAREHOLDERS, TRUSTEES, OFFICERS, EMPLOYEES OR AGENTS), REGARDLESS OF
WHETHER SUCH OBLIGATION OR LIABILITY IS IN THE NATURE OF CONTRACT, TORT
OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THIS SECTION 7(I) SHALL NOT
IN ANY WAY AFFECT OR LIMIT ANY OBLIGATION OR LIABILITY OF ANY HOLDER
UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
[SIGNATURE PAGE FOLLOWS]
13
16
PRESIDIO GOLF TRUST,
a Maryland real estate investment trust
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
HOLDERS:
By:
-------------------------------------------
Name:
--------------------------------------
Title: [Attorney in Fact]
14
