EXHIBIT 10.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of August 19, 1998 by and between American Real Estate
Investment Corporation, a Maryland corporation (the "Company"), and the holders
of shares of common stock listed on Schedule A attached hereto including their
respective successors, assigns and transferees (herein referred to individually
as a "Holder" and collectively as the "Holders").
WHEREAS, on the date hereof, each Holder is receiving such
number of shares of common stock, par value $.001 per share (the "Common
Stock"), of the Company set forth opposite such Holder's name on Schedule A
attached hereto (the "Registrable Securities");
WHEREAS, in connection therewith, the Company has agreed to
grant to Holders the Registration Rights (as defined in Section 1 hereof);
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 hereby are
acknowledged, hereby agree as follows:
Section 1. Registration Rights
1.1 Registration Rights1.1 Registration Rights. Each Holder
shall be entitled to offer for sale from time to time pursuant to a shelf
registration statement the Registrable Securities, subject to the terms and
conditions set forth herein (the "Registration Rights").
(a) Registration Procedure. The Company will cause to
be filed with the Securities and Exchange Commission (the "SEC") within
ninety (90) days of the date of this Agreement a shelf registration
statement and related prospectus, including any preliminary prospectus
and documents incorporated by reference (the "Shelf Registration
Statement") that, upon effectiveness, registers the sale by each of the
Holders of such Holder's Registrable Securities and permits the
disposition of the Registrable Securities in accordance with the
Holders' intended method or methods of distribution, and agrees
(subject to Section 1.2 hereof) to use its commercially reasonable best
efforts to cause such Shelf Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. Each Holder
agrees to provide in a timely manner information regarding the proposed
distribution by such Holder of the Registrable Securities and such
other information reasonably requested in writing by the Company in
connection with the preparation of and for inclusion in the Shelf
Registration Statement. The Company agrees (subject to Section 1.2
hereof) to use its commercially reasonable best efforts to keep the
Registration Statement continuously effective, free of material
misstatements or omissions and otherwise in compliance with the rules,
regulations and instructions applicable to such registration form
(including the reasonably prompt preparation and filing of any
amendments and supplements necessary for that purpose) until the
earlier of (i) the first date on which all Holders have consummated the
sale of all of such Holders' Registrable Securities registered under
the Shelf Registration Statement or (ii) the date on which all of the
Registrable Securities are eligible for sale
pursuant to Rule 144(k) (or any successor provision) or in a single
transaction pursuant to Rule 144(e) (or any successor provision) under
the Securities Act of 1933, as amended (the "Securities Act"). The
Company agrees to provide to each Holder a reasonable number of copies
of the Shelf Registration Statement, any pre-effective or
post-effective amendments thereto, and the related prospectus
(including any preliminary prospectus) and any amendments or
supplements thereto, and such related documents as any such Holder may
reasonably request in order to facilitate the disposition of the
Registrable Securities offered by such Holder. The Company further
agrees that it will use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Shelf
Registration Statement at the earliest possible moment.
(b) Offers and Sales. All offers and sales by each
Holder under the Shelf Registration Statement referred to in this
Section 1.1, if any, shall be completed within the period during which
the Registration Statement is required to remain effective pursuant to
Section 1.1(a), and, upon expiration of such period, no Holder will
offer or sell any Registrable Securities under the Registration
Statement. If directed in writing by the Company, each Holder will
return all undistributed copies of the Prospectus in its possession
upon the expiration of such period. Each Holder shall promptly, but in
any event no later than ten (10) business days after a sale by such
Holder of Registrable Securities, notify the Company of any sale or
other transfer by such Holder of Registrable Securities and include in
such notice the number of Registrable securities sold or transferred by
Holder.
(c) Limitations. The Company hereby represents that
it has obtained and an agreement (a "Lock-up Agreement") from each of
Xxxxxxx X. Xxxxxx ("Xxxxxx"), President and Director of the Company,
CRA Real Estate Securities, Xxxxxx Bay Partners II, L.P. and Xxxxxxx X.
Xxxxxxx, Director of the Company (collectively the "Insiders"),
substantially to the effect that each will not offer, sell, offer or
contract to sell, transfer, assign, grant any option for the sale of,
or otherwise convey any shares of Common Stock "beneficially owned" (as
defined in the Exchange Act) by them for a period of at least six
months from the date hereof. Each Holder agrees not to offer, sell,
offer or contract to sell, transfer, assign, grant any option for the
sale of, or otherwise convey any shares of Common Stock "beneficially
owned" by it (other than to affiliates) for a period of six months from
the date hereof. In the event the Company agrees to waive the
provisions of its Lock-up Agreement with any of the Insiders it will
provide written notice of such waiver to each Holder at substantially
the same time as it notifies the Insider of the waiver and the
provisions of this Section 1.1(c) with respect to the obligations of
each Holder will terminate upon the grant by the Company of such
waiver.
1.2 Suspension of Offering
(a) If the Board of Directors of the Company
determines in its good faith judgment that the filing of the Shelf
Registration Statement under Section 1.1 hereof or the use of any
prospectus would materially impede, delay or interfere with any pending
material financing, acquisition or corporate reorganization or other
material corporate development involving the Company or any of its
subsidiaries, or require the disclosure of important, confidential
information, the pre-mature disclosure of which would materially impede
the Company's ability to consummate a significant transaction, upon
written notice by the Company of such determination, the rights of each
Holder to offer, sell or distribute any Registrable Securities pursuant
to the Shelf Registration Statement or to require the Company to take
action with respect to the registration or sale of any Registrable
Securities pursuant to the Shelf Registration Statement (including any
action contemplated by Section 1.1 hereof) will be suspended until the
date upon which the Company notifies the Holders in writing that
suspension of such rights for the grounds set forth in this Section
1.2(a) is no longer necessary, but, in any event, no such period shall
extend for longer than 45 days; provided the Company may deliver only
two such notices in any twelve month period.
(b) In the case of the registration of any
underwritten public offering proposed by the Company (other than any
registration by the Company on Form S-8, or a successor or
substantially similar form, of (A) an employee stock option, stock
purchase or compensation plan or of securities issued or issuable
pursuant to any such plan or (B) a dividend reinvestment plan), each
Holder agrees, if requested in writing by the managing underwriter or
underwriters administering such offering, not to effect any
underwritten offering for the resale of Registrable Securities (or any
option or right to acquire Registrable Securities) during the period
commencing on the 7th day prior to the expected effective date of the
registration statement covering such underwritten public offering or
the date on which the proposed offering is expected to commence (which
date shall be stated in such notice) and ending on the date specified
by such managing underwriter in such written request to such Holder,
which date shall not be later than 45 days after such expected date of
effectiveness or the commencement of the offering, as the case may be.
1.3 Expenses. The Company shall pay all expenses
incident to the performance by it of its registration obligations under this
Section 1, including (i) all stock exchange, SEC and state securities
registration, listing and filing fees, (ii) all expenses incurred in connection
with the preparation, printing and distributing of the Shelf Registration
Statement and prospectus (including all expenses incurred in connection with the
delivery to any Holder of such number of copies of any prospectus as such Holder
may reasonably request), and (iii) fees and disbursements of counsel for the
Company and of the independent public accountants of the Company. Each Holder
shall be responsible for the payment of any brokerage and sales commissions,
fees and disbursements of such Holder's counsel, and any transfer taxes relating
to the sale or disposition of the Registrable Securities by such Holder.
1.4 Qualification1.4 Qualification. The Company agrees to use
its commercially 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 as any Holder shall reasonably request in writing, to keep each
such registration or qualification effective during the period the Shelf
Registration Statement is required to be kept effective, and to do any and all
other acts and things which may be reasonably necessary or advisable to enable
each Holder to consummate the disposition in each such jurisdiction of the
Registrable Securities owned by such Holder; provided, however, that the Company
shall not be required to (x) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this Section 1.4, (y) subject
itself to taxation in any such jurisdiction, or (z) submit to the general
service of process in any such jurisdiction.
1.5 Notices to Holders. During the period that the Company is
required to keep the Shelf Registration Statement effective, the Company will
advise the Holders within a reasonable time (i) when the prospectus or any
prospectus supplement or post-effective amendment thereto has been filed, and
when the same has become effective, (ii) of any request by the SEC for any
amendments to, or issuance by the SEC of any stop order with respect to the
Shelf Registration Statement or any prospectus or amendment thereto, or (iii)
that an amendment or supplement to the most recent Prospectus or prospectus
supplement, as the case may be, is necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
2
1.6 Other Registration Procedures. Whenever required under
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as promptly as practicable:
(a) Prior to filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall
furnish to one firm of counsel for the Holders, copies of all such
documents in the form substantially as proposed to be filed with the
SEC and shall in good faith consider incorporating in each such
document such changes as such counsel to the Holders reasonably and in
a timely manner may suggest.
(b) Make available for inspection by any Holder, any
underwriter participating in such offering and the representatives of
such Holder and any such underwriter (but not more than one firm of
counsel to each Holders), all financial and other information as shall
be reasonably requested by them at the Company's offices, during
business hours and upon reasonable advance notice, and provide any
Holder, any underwriter participating in such offering and the
representatives of such Holder and underwriter the reasonable
opportunity to discuss the business affairs of the Company with its
principal executives and independent public accountants who have
certified the audited financial statements included in such
registration statement, in each case all as necessary to enable them to
exercise their due diligence responsibility under the Securities Act;
provided, however, that information that the Company determines to be
confidential and which the Company advises such person in writing, is
confidential shall not be disclosed unless such person signs a
confidentiality agreement reasonably satisfactory to the Company or the
related Holder of Registrable Securities agrees to be responsible for
such Person's breach of confidentiality on terms reasonably
satisfactory to the Company; provided, further, that the Company shall
not be required to incur any material out-of-pocket expense pursuant to
this Section 1.6(b).
(c) If Registrable Securities are included in an
underwritten public offering by the Company, the Company will use
reasonable efforts to have any such Holders included as a recipient in
any so-called "comfort letter" from the independent public accountants
of the Company, and legal opinions of counsel to the Company addressed
to the Company. Delivery of such opinion or comfort letter shall be
subject to the recipient furnishing such written representations or
acknowledgements as are reasonably requested by such independent public
accountants or legal counsel to the Company; provided, however, that
the Company shall not be required to incur any material out-of-pocket
expense pursuant to this Section 1.6(c).
(d) Use reasonable efforts to cause the Registrable
Securities to be listed or quoted on such securities exchange or
national quotation system on which similar securities of the Company
are then listed or quoted.
Section 2. Indemnification
2.1 Indemnification by the Company2.1 Indemnification by the
Company. The Company agrees to indemnify and hold harmless each Holder, each of
its directors and officers and each person, if any, who controls any Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as follows:
(a) against any and all loss, liability, claim,
damage and expense whatsoever,
3
as incurred, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
registration statement (or any amendment thereto) pursuant to which the
Registrable Securities were registered under the Securities Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any prospectus
(or any amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(b) 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 person, entity, governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company, which consent shall not be unreasonably withheld; and
(c) against any and all 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 person, entity,
governmental agency or body, commenced or threatened, in each case
whether or not a party, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (a) or (b) above;
provided, however, that the indemnity provided pursuant to this Section 2.1 does
not apply to any Holder with respect to any loss, liability, claim, damage or
expense to the extent arising out of (i) any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such Holder
expressly for use in the Shelf Registration Statement (or any amendment thereto)
or the related prospectus (or any amendment or supplement thereto), or (ii) such
Holder's failure to deliver an amended or supplemental Prospectus (provided such
Holder was notified in writing pursuant to Section 1.5, or otherwise, of the
need for an amended or supplemental Prospectus) if such loss, liability, claim,
damage or expense would not have arisen had such delivery occurred.
2.2 Indemnification by Holder. Each Holder (on a several
and not joint basis) agrees to indemnify and hold harmless the Company, and
each of its directors and officers (including each director and officer of
the Company who signed a Registration Statement), and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, as follows:
(a) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement (or any amendment thereto)
pursuant to which the Registrable Securities were registered under the
Securities Act, including all documents
4
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in any prospectus (or any amendment or
supplement thereto), including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(b) 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 person, entity, governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
Holder, which consent shall not be unreasonably withheld; and
(c) against any and all 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 person, entity,
governmental agency or body, commenced or threatened, in each case
whether or not a party, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (a) or (b) above;
provided, however, that the indemnity provided pursuant to this Section 2.2
shall only apply with respect to any loss, liability, claim, damage or expense
to the extent arising out of (i) any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Holder
expressly for use in the Registration Statement (or any amendment thereto) or
the related prospectus (or any amendment or supplement thereto), or (ii) such
Holder's failure to deliver an amended or supplemental prospectus (provided such
Holder was notified in writing pursuant to Section 1.5, or otherwise, of the
need for an amended or supplemental Prospectus) if such loss, liability, claim,
damage or expense would not have arisen had such delivery occurred.
Notwithstanding the provisions of this Section 2.2, no Holder shall be required
to indemnify the Company, its officers, directors or control persons with
respect to any amount in excess of the amount of the total proceeds (net of any
underwriting discounts and commissions paid by such Holder) to such Holder from
sales of the Registrable Securities of such Holder under the Shelf Registration
Statement (after deducting the amounts already paid to the Company by such
Holder or any person, if any, who controls such Holder pursuant to this Section
2.2), and no Holder shall be liable under this Section 2.2 for any statements or
omissions of any other Holder.
2.3 Conduct of Indemnification Proceedings. The indemnified
party shall give reasonably prompt notice to the indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify the indemnifying party (i)
shall not relieve it from any liability which it may have under the indemnity
agreement provided in Section 2.1 or 2.2 above, unless and to the extent it
did not otherwise learn of such action and the lack of notice by the
indemnified party results in the forfeiture by the indemnifying party of
substantial rights or defenses, and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to the indemnified party other than
the indemnification obligation provided under Section 2.1 or 2.2 above. If
the indemnifying party so elects within a reasonable time after receipt of
such notice, the indemnifying party may assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by
the indemnifying party and approved by the indemnified party, which approval
shall not be unreasonably withheld; provided, however, that the indemnifying
party will not settle any such action or proceeding without the written
consent of the indemnified party unless, as a condition to such settlement,
the indemnifying party secures the unconditional release of the indemnified
party; and provided further, that if the indemnified party reasonably
determines that a conflict of interest exists where
5
it is advisable for the indemnified party to be represented by separate counsel
or that, upon advice of counsel, there may be legal defenses available to it
which are different from or in addition to those available to the indemnifying
party, then the indemnifying party shall not be entitled to assume such defense
and the indemnified party shall be entitled to separate counsel at the
indemnifying party's expense. If the indemnifying party is not entitled to
assume the defense of such action or proceeding as a result of the proviso to
the preceding sentence, the indemnifying party's counsel shall be entitled to
conduct the indemnifying party's defense and counsel for the indemnified party
shall be entitled to conduct the defense of the indemnified party, it being
understood that both such counsel will cooperate with each other to conduct the
defense of such action or proceeding as efficiently as possible. If the
indemnifying party (i) is not so entitled to assume the defense of such action,
(ii) does not assume such defense, after having received the notice referred to
in the first sentence of this paragraph, or (iii) fails to employ counsel that
is reasonably satisfactory to the indemnified party, 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 for the indemnified
party. In such event, however, the indemnifying party will not be liable for any
settlement effected without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld. If an indemnifying party is entitled
to assume, and assumes, the defense of such action or proceeding in accordance
with this paragraph, the indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection
with such action or proceeding.
2.4 Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in this Section 2 is for any reason held to be unenforceable by
the indemnified party although applicable in accordance with its terms, the
Company and the applicable Holder shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company and such Holder, (i) in such
proportion as is appropriate to reflect the relative fault of the Company on
the one hand and such Holder on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault of but also the relative
benefits to the Company on the one hand and such Holder on the other hand,
from the purchase and sale of the Registrable Securities, 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 benefits to the indemnifying party and
indemnified party shall be determined by reference to, among other things,
the total proceeds received by the indemnifying party and indemnified party
in connection with the offering to which such losses, claims, damages,
liabilities or expenses relate. The relative fault of the indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether the action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact, has been made by, or relates to information supplied by, the
indemnifying party or the indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action. The obligations of each Holder under this Section 2.4
are several and not joint.
The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 2.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 2.4, no Holder shall
be required to contribute any amount in excess of the amount of the total
proceeds (net of any underwriting discounts and commissions paid by such Holder)
to that Holder from sales of the Registrable Securities of such Holder under the
Shelf Registration Statement.
6
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 2.4, each person, if
any, who controls any Holder within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each director
of the Company, each officer of the Company who signed a registration statement
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act shall have the same rights to contribution as the
Company.
Section 3. Rule 144 and Rule 144A Compliance
The Company covenants that it will file the reports required
to be filed by the Company under the Securities Act and the Exchange Act so as
to enable each Holder to sell Registrable Securities, pursuant to Rule 144 under
the Securities Act. The Company agrees to provide to the Holders of the
Registrable Securities and upon a Holder's request to any prospective purchasers
designated by a holder the financial and other information specified in Rule 144
or 144A under the Securities Act and to take any other action or to executive
any certificates necessary to permit a transfer by or any holder of Registrable
Securities to qualify for the exemption set forth in Rule 144 or 144A. In
connection with any sale, transfer or other disposition by any Holder of any
Registrable Securities pursuant to Rule 144 or Rule 144A 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 not bearing any Securities Act legend, and enable certificates for
such Registrable Securities to be for such number of shares and registered in
such names as such Holder may reasonably request at least three (3) business
days prior to any sale of Registrable Securities hereunder.
Section 4. Miscellaneous
4.1 Integration; Amendment. This Agreement constitutes the
entire agreement among the parties hereto with respect to the matters set
forth herein and supersedes and renders of no force and effect all prior oral
or written agreements, commitments and understandings among the parties with
respect to the matters set forth herein. Except as otherwise expressly
provided in this Agreement, no amendment, modification or discharge of this
Agreement shall be valid or binding unless set forth in writing and duly
executed by the Company and the applicable Holder.
4.2 Waivers. No waiver by a party hereto shall be effective
unless made in a written instrument duly executed by the party against whom
such waiver is sought to be enforced, and only to the extent set forth in
such instrument. Neither the waiver by any of the parties hereto of a breach
or a default under any of the provisions of this Agreement, nor the failure
of any of the parties, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege hereunder
shall thereafter be construed as a waiver of any subsequent breach or default
of a similar nature, or as a waiver of any such provisions, rights or
privileges hereunder.
4.3 Assignment. This Agreement shall inure to the benefit
of and be binding on the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, 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.
7
4.4 Notices. All notices, payments, demands or other
communications given hereunder shall be deemed to have been duly given and
received (i) upon personal delivery, (ii) in the case of notices sent within,
and for delivery within, the United States, as of the date shown on the
return receipt after mailing by registered or certified mail, return receipt
requested, postage prepaid, or (iii) the second succeeding business day after
deposit with Federal Express or other equivalent air courier delivery
service, unless the notice is held or retained by the customs service, in
which case the date shall be the fifth succeeding business day after such
deposit.
4.5 Specific Performance. The parties hereto acknowledge
that the obligations undertaken by them hereunder are unique and that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to (i) compel specific performance of the obligations, covenants and
agreements of any other party under this Agreement in accordance with the
terms and conditions of this Agreement and (ii) obtain preliminary injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement in any court of the United States or any State
thereof having jurisdiction.
4.6 Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating
thereto, shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the choice of law rules
thereof. The parties agree that all disputes between any of them arising out
of, connected with, related to, or incidental to the relationship established
between them in connection with this Agreement, and whether arising in law or
in equity or otherwise, shall be resolved by the federal or state courts
located in New York, New York. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the other in any other
jurisdiction. In addition, each of the parties hereto consents to submit to
the personal jurisdiction of any federal or state court located in the state
of New York in the event that any dispute arises out of this Agreement. The
parties, for themselves and their respective affiliates, hereby irrevocably
waive all right to a trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to
the actions of the parties or their respective affiliates pursuant to this
Agreement in the negotiation, administration, performance or enforcement
thereof.
4.7 Headings. Section and subsection headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any
way define or affect the meaning, construction or scope of any of the
provisions hereof.
4.8 Pronouns. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the person or entity may require.
4.9 Execution in Counterparts. To facilitate execution,
this Agreement may be executed in as many counterparts as may be required. It
shall not be necessary that the signature of or on behalf of each party
appears on each counterpart, but it shall be sufficient that the signature of
or on behalf of each party appears on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement. It shall not
be necessary in any proof of this Agreement to produce or account for more
than a number of counterparts containing the respective signatures of or on
behalf of all of the parties hereto.
8
4.10 Severability. If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend the
limit of validity prescribed by law, then the obligation to be fulfilled
shall be reduced to the limit of such validity; and if any clause or
provision contained in this Agreement operates or would operate to invalidate
this Agreement, in whole or in part, then such clause or provision only shall
be held ineffective, as though not herein contained, and the remainder of
this Agreement shall remain operative and in full force and effect.
9
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first hereinabove set
forth.
COMPANY:
Address: AMERICAN REAL ESTATE INVESTMENT
Plymouth Meeting Executive Campus CORPORATION
000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HOLDERS:
Address: COMPTROLLER OF THE STATE OF NEW
Assistant Deputy Comptroller of YORK AS TRUSTEES OF THE
Real Estate Investments COMMON RETIREMENT FUND
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
with copies to: By: /s/ Xxxx X. Xxxx
-----------------------
Name: Xxxx X. Xxxx
Assistant Counsel of Title: Deputy Comptroller
Real Estate Investments Investments and Cash
000 Xxxxx Xxxxxx, 31st Floor Management
Xxx Xxxx, XX 00000
and
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
SCHEDULE A
Number of Shares
Name and Address of Common Stock
---------------- ----------------
New York State Common Retirement Fund 720,743
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
