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EXHIBIT 99.2
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
(Lions Head Partners, Ltd.)
This Registration Rights and Lock-Up Agreement (this "Agreement") is
entered into as of April 14, 1998 by and between Gables Residential Trust, a
Maryland real estate investment trust (the "Company"), and Lions Head Partners,
Ltd., a Texas limited partnership (the "Contributor"), and its permitted
successors and assigns who have executed a signature page to this Agreement
(each, including the Contributor, a "Holder" and collectively the "Holders").
WHEREAS, the Contributor is to receive units (the "Acquired Units") of
limited partnership interest ("Units") in Gables Realty Limited Partnership, a
Delaware limited partnership (the "Operating Partnership"), issued without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), in consideration for its contribution to the Operating Partnership of
certain property pursuant to that certain Asset Contribution Agreement between
the Operating Partnership and the Contributor dated as of the date hereof (the
"Contribution Agreement");
WHEREAS, under the Second Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, dated as of July 24, 1997, holders of
Units may present such Units to the Operating Partnership for redemption, and
any Units so presented may be acquired by the Company, at the Company's option,
for cash or common shares of beneficial interest, par value $.01 per share
("Common Shares"), of the Company;
WHEREAS, it is a condition precedent to the closing of the Contribution
Agreement that the Company provide the Contributor with the registration rights
set forth in Section 3 hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Certain Definitions.
As used in this Agreement, in addition to the other terms defined
herein, the following capitalized defined terms shall have the following
meanings:
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such
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Registration Statement, and by all other amendments and supplements to such
prospectus, including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for
which a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible for sale pursuant to Rule 144(k) under
the Securities Act. All references in this Agreement to Rule 144 and subsections
thereof shall refer to corresponding provisions of future law.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (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 "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any 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 Shares on any
securities exchange or exchanges pursuant to Section 5 hereof; and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by a
selling Holder, the fees and disbursements of counsel representing a selling
Holder, and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a selling Holder, all of which shall be borne by such
Holder in all cases.
"Registration Statement" shall mean any 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 which
covers the issuance or resale of any of the Registrable Shares on an appropriate
form, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all materials incorporated by
reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" shall mean any Common Shares issued or to be issued to the
Holders by the Company upon acquisition by the Company of any Acquired Units
presented to the Operating Partnership for redemption.
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2. Lock-up Agreement. Each Holder hereby agrees that (i) for one (1)
year from the date hereof, without the prior written consent of the Company, it
will not offer, pledge, sell, contract to sell, grant any options for the sale
of or otherwise dispose of, directly or indirectly (collectively, "Dispose"),
any Acquired Units and (ii) for thirteen (13) months from the date hereof (the
"Redemption Lock-up Period"), without the prior written consent of the Company,
it will not seek the redemption of Acquired Units.
3. Registration.
(a) Filing of Issuance or Resale Registration Statement. Subject to the
conditions set forth in this Agreement, the Company shall cause to be filed
promptly after [DATE THAT IS 50 WEEKS AFTER SIGNING] a registration statement
(an "Issuance Registration Statement") under Rule 415 under the Securities Act
relating to the issuance to Holders by the Company of Common Shares upon
acquisition by the Company of any Acquired Units presented to the Operating
Partnership for redemption. Thereupon, the Company shall use reasonable efforts
to cause such Registration Statement to be declared effective by the SEC for all
Common Shares covered thereby. The Company agrees to use reasonable efforts to
keep the Issuance Shelf Registration Statement continuously effective, with
respect to the Registrable Shares of a particular Holder, until the date on
which such Holder has redeemed or exchanged such Holder's Acquired Units for
Common Shares.
In the event that the Company is unable to cause such Issuance
Registration Statement to be declared effective by the SEC due to the fact that
Common Shares are being registered on an Issuance Registration Statement or
(except as otherwise permitted by Sections 8(b) and 9) is unable due to such
reason to keep such Issuance Registration Statement effective until the date on
which each Holder has redeemed or exchanged such Holder's Acquired Units for
Common Shares, then, in lieu thereof, the Company shall file a Registration
Statement under Rule 415 under the Securities Act relating to the sale by the
Holders of all of the Registrable Shares in accordance with the terms hereof (a
"Resale Registration Statement"), and shall use reasonable efforts to cause such
Registration Statement to be declared effective by the SEC by the expiration of
the Redemption Lock-up Period.
The Company agrees to use reasonable efforts to keep the Registration
Statement that is filed and declared effective as contemplated in this paragraph
(a) continuously effective until the earliest of (a) the date on which the
Holders no longer hold any Registrable Shares or (b) the date on which all of
the Registrable Shares held or subsequently acquired by the Holders have become
eligible for sale pursuant to Rule 144(k) promulgated under the Securities Act
and the Company has delivered to each such Holder an opinion of counsel to such
effect (hereinafter referred to as the "Shelf Registration Expiration Date").
(b) Demand Registration. Subject to the conditions set forth in this
Agreement, at any time after the Shelf Registration Expiration Date and while
any Registrable Shares are outstanding, the Company shall, at the written
request of any Holder who is unable to sell its
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Registrable Shares pursuant to Rule 144(k) under the Securities Act, cause to be
filed as soon as practicable after the date of such request by such Holder a
Registration Statement under Rule 415 under the Securities Act relating to the
sale by the Holder of all of the Registrable Shares held by such Holder in
accordance with the terms hereof, and shall use reasonable efforts to cause such
Registration Statement to be declared effective by the SEC as soon as
practicable thereafter. The Company may, in its sole discretion, elect to file
the Registration Statement before receipt of notice from any Holder. The Company
agrees to use reasonable efforts to keep the Registration Statement continuously
effective thereafter until the date on which such Holder no longer holds any
Registrable Shares.
(c) Piggyback Registration. If at any time after the Shelf Registration
Expiration Date and while any Registrable Shares or Acquired Units are
outstanding and a Registration Statement applicable to Holders under Sections
3(a) or 3(b) is not effective, the Company (in its sole discretion and without
any obligation to do so) proposes to file a registration statement under the
Securities Act with respect to an offering solely of Common Shares solely for
cash (other than a registration statement (i) on Form S-8 or any successor form
to such Form or in connection with any employee or director welfare, benefit or
compensation plan, (ii) on Form S-4 or any successor form to such Form or in
connection with an exchange offer, (iii) in connection with a rights offering
exclusively to existing holders of Common Shares, (iv) in connection with an
offering solely to employees of the Company or its subsidiaries, or (v) relating
to a transaction pursuant to Rule 145 of the Securities Act), whether or not for
its own account, the Company shall give prompt written notice of such proposed
filing to the Holders. The notice referred to in the preceding sentence shall
offer Holders the opportunity to register such amount of Registrable Shares as
each Holder may request (a "Piggyback Registration"). Subject to the provisions
of Section 4 below, the Company shall include in such Piggyback Registration, in
the registration and qualification for sale under the blue sky or securities
laws of the various states and in any underwriting in connection therewith, all
Registrable Shares for which the Company has received written requests for
inclusion therein within fifteen (15) calendar days after the notice referred to
above has been given by the Company to the Holders. Holders of Registrable
Shares shall be permitted to withdraw all or part of the Registrable Shares from
a Piggyback Registration at any time prior to the effective date of such
Piggyback Registration. If a Piggyback Registration is an underwritten primary
registration on behalf of the Company and the managing underwriter advises the
Company that the total number of Common Shares requested to be included in such
registration exceeds the number of Common Shares that can be sold in such
offering without impairing the pricing or other commercial practicality of such
offering, the Company will include in such registration in the following
priority: (i) first, all Common Shares the Company proposes to sell, (ii)
second, up to the full number of applicable Common Shares requested to be
included in such registration by holders of Common Shares with prior or superior
piggyback registration rights and (iii) third, up to the full number of
applicable Registrable Shares and Common Shares requested to be included in such
registration by any Holders and other holders of Common Shares with piggyback
registration rights of similar priority which, in the opinion of such managing
underwriter, can be sold without adversely affecting the price range or
probability of
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success of such offering (with the number of such Registrable Shares and other
Common Shares of each Holder and such other holders, respectively, to be
included in the Piggyback Registration to be allocated pro rata among the
Holders and such other holders on the basis of the total number of shares
requested to be included in such registration by all such Holders of Registrable
Shares and such other holders of Common Shares).
(d) [intentionally omitted]
(e) Notification and Distribution of Materials. The Company shall
notify each Holder of the effectiveness of any Registration Statement applicable
to the Shares of such Holder and shall furnish to each such Holder such number
of copies of the Registration Statement (including any amendments, supplements
and exhibits), the Prospectus contained therein (including each preliminary
prospectus and all related amendments and supplements) and any documents
incorporated by reference in the Registration Statement or such other documents
as such Holder may reasonably request in order to facilitate its sale of the
Registrable Shares in the manner described in the Registration Statement.
(f) Amendments and Supplements. The Company shall prepare and file with
the SEC from time to time such amendments and supplements to the Registration
Statement and Prospectus used in connection therewith as may be necessary to
keep the Registration Statement effective and to comply with the provisions of
the Securities Act with respect to the issuance or disposition of all the
Registrable Shares until the earlier of (a) such time as all of the Registrable
Shares have been issued or disposed of in accordance with the intended methods
of disposition by the Holders or issuance by the Company as set forth in the
Registration Statement or (b) the date on which the Registration Statement
ceases to be effective in accordance with the terms of this Section 3. Upon five
(5) business days' notice, the Company shall file any supplement or
post-effective amendment to the Registration Statement with respect to the plan
of distribution or such Holder's ownership interests in Registrable Shares that
is reasonably necessary to permit the sale of the Holder's Registrable Shares
pursuant to the Registration Statement. The Company shall file any necessary
listing applications or amendments to the existing applications to cause the
Shares registered under any Registration Statement to be then listed or quoted
on the primary exchange or quotation system on which the Common Shares are then
listed or quoted.
(g) Notice of SEC Filings, etc. The Company shall promptly notify each
Holder of, and confirm in writing, the filing of the Registration Statement
applicable to the Shares of such Holder or any Prospectus, amendment or
supplement related thereto or any post-effective amendment to such Registration
Statement and the effectiveness of any post-effective amendment.
(h) Notice of Certain Other Events. At any time when a Prospectus
relating to the Registration Statement is required to be delivered under the
Securities Act by a Holder to a transferee, the Company shall immediately notify
each Holder of the happening of any event as
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a result of which the Prospectus included in such Registration Statement, as
then in effect, includes an 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, in light of the circumstances under which they were made,
not misleading. In such event, the Company shall promptly prepare and furnish to
each Holder a reasonable number of copies of a supplement to or an amendment of
such Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registrable Shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is a part
to reflect such amendment or supplement.
(i) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing any Shares issued
to the Holders under an Issuance Registration Statement or sold to another
person under a Resale Registration Statement or a Registration Statement filed
under Sections 3(b) or 3(c). The Company shall otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of the SEC.
(j) In the case of an underwritten offering of Registrable Shares
(other than an offering contemplated by Section 3(c)) in which Holders will
offer at least $10 million worth of Shares, the Company shall permit Holders who
hold a majority of all Shares held by the Holders who are participating in the
Offering to select the investment banker(s) and manager(s) who will administer
such offering, subject to the approval of the Company which will not be
unreasonably withheld. In connection with any such underwritten offering, the
Company (upon reasonable advance notice and to the extent not otherwise
disruptive of the Company's operations) will provide such information and make
available appropriate personnel as may reasonably be requested by the Holders or
the managing underwriters, provided, that (i) Company personnel will not be
required to participate in roadshow presentations and (ii) the Company will be
reimbursed by the Holders participating in the offering (who shall be jointly
and severally liable for such reimbursement) for any out of pocket costs and
expenses in connection with such cooperation.
(k) Holder Information. In connection with any Resale or Issuance
Registration Statement or any Registration Statement contemplated under Sections
3(b) or 3(c), the Company shall deliver to each Holder, at least ten (10)
business days prior to the filing of a Registration Statement, a notice which
sets forth the name and number of Shares proposed to be shown in the
Registration Statement with respect to such Holder, to the extent such Holder is
to be listed in the Registration Statement as a selling stockholder; provided,
that if such Holder provides corrected information for inclusion in the
Registration Statement within four (4) business days after the date the notice
is delivered, the Company shall instead include such corrected information with
respect to such Holder.
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4. State Securities Laws. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Registration
Statement hereunder, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities or "Blue Sky" laws of such
states as any Holder may reasonably request, and the Company shall use its best
efforts to cause such filings to become effective; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such state in which it is not then qualified or
to file any general consent to service of process in any such state. Once
effective, the Company shall use its best efforts to keep such filings effective
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by the Holder
as set forth in the Registration Statement, (b) in the case of a particular
state, a Holder has notified the Company that it no longer requires an effective
filing in such state in accordance with its original request for filing or (c)
the date on which the Registration Statement ceases to be effective. The Company
shall promptly notify each Holder of, and confirm in writing, the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Shares for sale under the securities or "Blue Sky" laws of
any jurisdiction or the initiation or threat of any proceeding for such purpose.
5. Expenses. The Company shall bear all Registration Expenses incurred
in connection with the registration of the Registrable Shares pursuant to this
Agreement, except that each Holder shall be responsible for any brokerage or
underwriting commissions and taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer of Registrable
Shares sold by it and for any legal, accounting and other expenses incurred by
it and for any expenses to be paid by it in accordance with Section 3(j).
6. Indemnification by the Company. The Company agrees to indemnify
each of the Holders and their respective officers, directors, employees, agents,
representatives and affiliates, and each person or entity, if any, that controls
a Holder within the meaning of the Securities Act, and each other person or
entity, if any, subject to liability because of his, her or its connection with
a Holder, and any underwriter and any person who controls the underwriter within
the meaning of the Securities Act (each an "Indemnitee") against any and all
losses, claims, damages, actions, liabilities, costs and expenses (including
without limitation reasonable fees, expenses and disbursements of attorneys and
other professionals), joint or several, arising out of or based upon any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any Registration Statement or
Prospectus, or upon any untrue or alleged untrue statement of material fact
contained in the Registration Statement or any Prospectus, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, that the Company shall not be
liable to such Indemnitee or any person who participates as an underwriter in
the offering or sale of Registrable Shares or any other person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any
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such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon (i) an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement or in any such Prospectus in reliance upon and in conformity with
information regarding such Indemnitee or its plan of distribution or ownership
interests which was furnished to the Company for use in connection with the
Registration Statement or the Prospectus contained therein by such Indemnitee or
(ii) such Holder's failure to send or give a copy of the final, amended or
supplemented prospectus furnished to the Holder by the Company at or prior to
the time such action is required by the Securities Act to the person claiming an
untrue statement or alleged untrue statement or omission or alleged omission if
such statement or omission was corrected in such final, amended or supplemented
prospectus.
7. Covenants of Holders. Each of the Holders hereby agrees (a) to
cooperate with the Company and to furnish to the Company all such information
concerning its plan of distribution and ownership interests with respect to its
Registrable Shares in connection with the preparation of a Registration
Statement with respect to such Holder's Registrable Shares and any filings with
any state securities commissions as the Company may reasonably request, (b) to
deliver or cause delivery of the Prospectus contained in the Registration
Statement (other than an Issuance Registration Statement) to any purchaser of
the shares covered by such Registration Statement from the Holder and (c) to
indemnify the Company, its officers, directors, employees, agents,
representatives and affiliates, and each person, if any, who controls the
Company within the meaning of the Securities Act, and each other person, if any,
subject to liability because of his connection with the Company, against any and
all losses, claims, damages, actions, liabilities, costs and expenses arising
out of or based upon (i) any untrue statement or alleged untrue statement of
material fact contained in either such Registration Statement or the Prospectus
contained therein, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, if and to the extent that such statement or omission occurs from
reliance upon and in conformity with written information regarding the Holder,
its plan of distribution or its ownership interests, which was furnished to the
Company by the Holder for use therein unless such statement or omission was
corrected in writing to the Company not less than two (2) business days prior to
the date of the final prospectus (as supplemented or amended, as the case may
be) or (ii) the failure by the Holder to deliver or cause to be delivered the
Prospectus contained in such Registration Statement (as amended or supplemented,
if applicable) furnished by the Company to the Holder to any purchaser of the
shares covered by such Registration Statement from the Holder through no fault
of the Company.
8. Suspension of Registration Requirement.
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement with respect to such Holder's Registrable Shares or
the initiation of any proceedings for that
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purpose. The Company shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such a Registration Statement at the
earliest possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use its best efforts
to cause the Registration Statement and any filings with any state securities
commission to become effective or to amend or supplement the Registration
Statement shall be suspended in the event and during such period as unforeseen
circumstances exist (including without limitation (i) an underwritten primary
offering by the Company if the Company is advised by the underwriters that the
sale of Registrable Shares under the Registration Statement would impair the
pricing or other commercial practicality of the primary offering or (ii) pending
negotiations relating to, or consummation of, a transaction or the occurrence of
an event that would require additional disclosure of material information by the
Company in the Registration Statement or such filing, as to which the Company
has a bona fide business purpose for preserving confidentiality or which renders
the Company unable to comply with SEC requirements) (such unforeseen
circumstances being hereinafter referred to as a "Suspension Event") that would
make it impractical or unadvisable to cause the Registration Statement or such
filings to become effective or to amend or supplement the Registration
Statement, but (x) such suspension shall continue only for so long as such event
or its effect is continuing and (y) in no event will any such suspension exceed
ninety (90) days and in no event will such suspensions in any twelve month
period exceed, in the aggregate, one hundred eighty (180) days. The Company
shall notify the Holders of the existence and, in the case of circumstances
referred to in clause (i) of this Section 8(b), nature of any Suspension Event.
(c) Each Holder of Registrable Shares agrees, if requested by the
Company in the case of a Company-initiated nonunderwritten offering or if
requested by the managing underwriter or underwriters in a Company-initiated
underwritten offering, not to effect any public sale or distribution of any of
the securities of the Company of any class included in such Registration
Statement, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act (except as part of such Company-initiated registration), during
the 15-day period prior to, and during the 60-day period beginning on, the date
of effectiveness of each Company-initiated offering made pursuant to such
Registration Statement, to the extent timely notified in writing by the Company
or the managing underwriters; provided, however, that such 60-day period shall
be extended by the number of days from and including the date of the giving of
any notice pursuant to Section 3(g) or (h) hereof to and including the date when
each seller of Registrable Shares covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 3(h) hereof.
9. Black-Out Period. Either Holder agrees that, following the
effectiveness of any Registration Statement (except an Issuance Registration
Statement) relating to the Registrable Shares of such Holder, such Holder will
not effect any sales of the Registrable Shares pursuant to such Registration
Statement or any filings with any state securities commission at any time after
such Holder has received notice from the Company to suspend sales as a result of
the
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occurrence or existence of any Suspension Event or so that the Company may
correct or update the Registration Statement or such filing (but in no event
will any such Suspension Event exceed ninety (90) days and in no event will all
such Suspension Events in any 12 month period exceed one hundred eighty (180)
days). The Holder may recommence effecting sales of the Shares pursuant to the
Registration Statement or such filings following further notice to such effect
from the Company, which notice shall be given by the Company not later than five
(5) days after the conclusion of any such Suspension Event.
10. Additional Shares. The Company, at its option, may register, under
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued Common Shares of the
Company or any Common Shares of the Company owned by any other shareholder or
shareholders of the Company.
11. Contribution. If the indemnification provided for in Sections 6 and
7 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Indemnitee, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Indemnitee, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
party to contribute under this Section 11 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 6 or 7 hereof had been available
under the circumstances.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 11 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph.
Notwithstanding the provisions of this Section 11, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of Shares exceeds the amount of any damages that the
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall
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be entitled to contribution from any indemnifying party who was not guilty of
such fraudulent misrepresentation.
12. No Other Obligation to Register. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
13. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified, or supplemented or waived without the prior written consent
of the Company and Holders holding in excess of two-thirds of the aggregate of
all Registrable Shares then covered by this Agreement, provided, that no such
amendment will be effective against any Holder who has not consented in writing
thereto (i) if such amendment materially and adversely affects such Holder's
rights to such an extent that the benefit intended hereby (access to public
markets for the sale of Registrable Shares) is effectively eliminated by such
amendment or (ii) if such amendment was obtained as a result of consents given
by persons who are affiliates of the Company or persons who gave such consents
contemporaneously with or in contemplation of the redemption, sale or exchange
of Acquired Units. Neither the waiver by any of the parties hereto of a breach
or a default under any of the provisions of this Agreement, nor the failure of
any of the parties, on one or more occasions, to enforce any of the provisions
of this Agreement or to exercise any right or privilege hereunder shall
thereafter be construed as a waiver of any subsequent breach or default of a
similar nature, or as a waiver of any such provisions, rights or privileges
hereunder.
14. Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 3(f) or
Section 7, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Gables Residential Trust
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, X.X.
00
00
Telecopy: (000) 000-0000
If to the Holders: As listed on the applicable Holder
Signature Page
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 8 and 9 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
This Agreement and the rights granted hereunder may not be assigned by any
Holder without the prior written consent of the Company; provided, however, that
(i) a Holder may assign its rights and obligations hereunder, following at least
ten (10) days prior written notice to the Company, to a permitted transferee in
connection with a transfer of the Partnership Units in accordance with the terms
of the Partnership Agreement, if such transferee agrees in writing to be bound
by all of the provisions hereof and (ii) no Holder shall Dispose of any Acquired
Units to any person that is not an "accredited investor" under the Securities
Act if the Company has a reasonable basis for objecting to such transfer (except
that such prohibition shall not apply to Dispositions by the Contributor to
those persons who are constituent partners of Contributor as of the date
hereof). Any attempted assignment hereof by any Holder that is not in accordance
with the foregoing will be void and of no effect and shall terminate all
obligations of the Company hereunder.
16. 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.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland applicable to contracts made
and to be performed wholly within said State.
18. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
19. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set
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forth or referred to herein, with respect to such subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
20. Specific Performance. The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would not be
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 (a)
compel specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (b) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement.
21. Time of Essence. Time is of the essence in the performance of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
GABLES RESIDENTIAL TRUST
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------
Name:
Title:
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Holder:
LIONS HEAD PARTNERS, LTD.,
a Texas limited partnership
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx, General Partner
Address for Notice:
c/o Oasis Residential
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx
Attention: Xx. Xxxxxx X. Xxxx
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