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EXHIBIT 99.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-up Agreement (the "Agreement") is
entered into as of October 31, 1998 by and among Summit Properties, Inc., a
Maryland corporation (the "Company"), Summit Properties Partnership, L.P., a
Delaware limited partnership (the "Operating Partnership"), and the holders
listed on the signature pages hereto (individually, a "Holder" and collectively,
the "Holders").
WHEREAS, each Holder is to receive contemporaneously herewith shares of
common stock (the "Common Stock") of the Company, par value $.01 per share, or
units of limited partnership interest in the Operating Partnership ("Units"), in
each case issued without registration under the Securities Act of 1933, as
amended (the "Securities Act"), in partial consideration for the merger of Xxxxx
Industries, Inc., an Ohio corporation ("Xxxxx") with and into the Company and
the contribution to the Operating Partnership of certain limited partnership
interests in certain limited partnerships organized under the laws of Texas and
affiliated with Xxxxx (collectively, the "Partnerships"), in each case pursuant
to an Agreement and Plan of Reorganization, dated as of October 31, 1998
(together with any amendment thereto, the "Merger Agreement");
WHEREAS, pursuant to the Agreement of Limited Partnership of the
Operating Partnership, such Units may be redeemed for shares of Common Stock,
which may be issued without registration under the Securities Act; and
WHEREAS, it is a condition precedent to the closing of the Corporate
Merger and the Contribution Transaction (as such terms are defined in the Merger
Agreement) that the Company provide the Holders 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 agree as follows:
1. Certain Definitions.
As used in this Agreement, 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, each as amended or supplemented
by any prospectus supplement relating 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, 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 (including, without limitation, Shares issued to the
Holders in exchange for Units pursuant to an effective Issuance Registration
Statement), (ii) Shares sold pursuant to Rule 144 under the Securities Act and
(iii) Shares eligible (or which would be eligible in the absence of the Holder's
ownership of Common Stock other than Registrable Shares) for sale pursuant to
Rule 144(k) under the Securities Act.
"Registration Expenses" shall mean any and all expenses incurred by the
Company, the Operating Partnership or any affiliate of the Company 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 Registrable Shares) 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
3(e) 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 any of the Registrable Shares on an appropriate form, and all amendments
and supplements to such registration statement, including post-effective
amendments and supplements, 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 the shares of Common Stock issued to any Holder(s)
pursuant to the Merger Agreement or issued or to be issued to any Holder(s) upon
redemption or in exchange for its or their Units, as appropriately adjusted on
account of any stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization.
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2. Lock-Up Agreement. Each Holder hereby agrees that for a period
of one (1) year from the earlier of the Rancho Issuance Date (as defined in the
Merger Agreement) and the Rancho Reconveyance Date (as defined in the Merger
Agreement), but in any event for each Share or Unit a period of at least one (1)
year from the date of issuance of such Share or Unit pursuant to the Merger
Agreement (the "Lock-Up Period"), without the prior written consent of the
Company, it will not offer, sell, contract to sell, hypothecate, pledge, seek to
redeem, grant an option, right or warrant to purchase or otherwise dispose of,
directly or indirectly, any Shares or Units (the "Lock-Up").
3. Registration.
(a) Demand Registration. Subject to the conditions set forth
in this Agreement, at any time after the expiration of the Lock-Up Period the
Company shall, at the written request of a Holder, cause to be filed as soon as
practicable after the date of such request by such Holder a Registration
Statement relating to the sale by such Holder (and any other Holder electing to
include Registrable Shares in such Registration Statement in accordance with the
provisions set forth below) pursuant to Rule 415 promulgated under the
Securities Act of all or any integral multiple of 100,000 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; provided, however, that the
Company shall not be required to effect more than two demand registrations, in
the aggregate for all Holders, pursuant to this Section 3(a). Upon receipt of
any such request, the Company shall promptly give written notice of the proposed
registration to all Holders, and each such Holder shall have the right, by
giving written notice to the Company within fifteen (15) days after receipt of
such notice from the Company, to elect to include in such Registration Statement
all or a portion of such Holder's Registrable Shares. The Company may, in its
sole discretion, elect to file a Registration Statement with respect to any or
all of the Shares before receipt of notice from any Holder, including, without
limitation, an Issuance Registration Statement (as hereinafter defined) relating
to the original issuance by the Company of Shares in connection with the
redemption of Holders' Units pursuant to Section 3(c). The Company agrees to use
reasonable efforts to keep each Registration Statement continuously effective
until the earlier of (i) twelve (12) months after such Registration Statement
was declared effective by the SEC, or (ii) the date on which all Registrable
Shares registered thereby are sold or otherwise disposed of by the Holders;
provided, however, that if the Company elects to file a Registration Statement
with the SEC and such Registration Statement is declared effective by the SEC
prior to the expiration of the Lock-Up Period, the Company shall use reasonable
efforts to keep such Registration Statement continuously effective until the
earlier of (x) twelve (12) months after the expiration of the Lock-Up Period or
(ii) the date on which all Registrable Shares registered thereby are sold or
otherwise disposed of by the Holders. Notwithstanding the foregoing provisions
of this Section 3(a), during any period of time which the Company has a
Registration Statement in effect under the provisions of the Securities Act
relating to Registrable Shares, the Holders will not have the right to request
the registration under the provisions of this Section 3(a) of any Registrable
Shares included in such effective Registration Statement.
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(b) Piggyback Registration. If at any time while any
Registrable Shares or Units are outstanding and a Registration Statement
applicable to any Holder under Section 3(a) is not effective the Company (in its
sole discretion and without any obligation to do so) proposes to file a primary
registration statement on Form S-11 under the Securities Act in connection with
its offering of Common Stock solely for cash, the Company shall give prompt
written notice of such proposed filing to each Holder at least fifteen (15)
calendar days prior to the proposed filing date. The notice referred to in the
preceding sentence shall offer each Holder the opportunity to register any
amount of Registrable Shares as such Holder may request (a "Piggyback
Registration"). Subject to the provisions of Section 4 below, the Company shall
include in such Piggyback Registration, in any required 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 each Holder. Each Holder of Registrable Shares shall be permitted
to withdraw all or part of its 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 registration on behalf of the Company
and the managing underwriter advises the Company that the total number of shares
of Common Stock requested to be included in such registration exceeds the number
of shares of Common Stock which can be sold in such offering without adversely
affecting the price range or probability of success of such offering, the
Company will include in such registration in the following priority: (i) first,
all shares of Common Stock the Company proposes to sell, and (ii) second, up to
the full number of Registrable Shares and shares of Common Stock requested to be
included in such registration by any Holders and other holders of registration
rights, which in the opinion of such managing underwriter, can be sold without
adversely affecting the price range or probability of success of such offering
(with the shares of Common Stock to be registered allocated pro rata among the
Holders and the other holders of registration rights on the basis of the total
number of Registrable Shares and the other shares of the Company's Common Stock
requested to be included in such registration by all such Holders and other
holders of registration rights).
(c) Registration Statement Covering Issuance of Common Stock.
In lieu of the registration rights set forth in Sections 3(a) and 3(b) above
with respect to Shares to be issued upon redemption or in exchange for Units,
the Company may, in its sole discretion, prior to the first date upon which the
Units held by the Holders may be redeemed (or such other date as may be required
under applicable provisions of the Securities Act) file a registration statement
(the "Issuance Registration Statement") under the Securities Act relating to the
issuance to Holders of Common Stock upon the redemption of Units or in exchange
for Units. Thereupon, the Company shall use reasonable efforts to cause such
Registration Statement to be declared effective by the SEC for all shares of
Common Stock covered thereby. The Company agrees to use reasonable efforts to
keep the Issuance Registration Statement continuously effective, with respect to
the Registrable Shares of a particular Holder, until such Holder has redeemed or
exchanged such Holder's Units for Common Stock or cash. In the event that the
Company is unable to cause such Issuance Registration Statement to be declared
effective by the SEC or (except as otherwise permitted by Sections 8(b) and 9)
is unable to keep such Issuance Registration Statement effective until the date
on which each Holder has redeemed or exchanged such Holder's Units for
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Common Stock or cash, then the rights of each Holder set forth in Sections 3(a)
and 3(b) above shall be restored.
(d) 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
the number of copies of such Registration Statement (including any amendments
and supplements thereto), the Prospectus contained therein (including each
preliminary prospectus and all related amendments and supplements), and any
document incorporated by reference in such 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 such Registration
Statement. Each Holder agrees that it will not distribute any preliminary
prospectus included in any Registration Statement unless such Registration
Statement relates to an underwritten public offering by (i) the Company and
(ii), pursuant to the rights set forth in Section 3(b), the Holders.
(e) Amendments and Supplements; Exchange Listing Application.
The Company shall prepare and file with the SEC from time to time such
amendments and supplements to any Registration Statement and Prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all the Registrable Shares until the earlier of (i) such
time as all of the Registrable Shares have been disposed of in accordance with
the intended methods of disposition by the Holders as set forth in such
Registration Statement or (ii) the date on which such Registration Statement
ceases to be effective in accordance with the terms of this Section 3. Upon ten
(10) business days' notice, the Company shall file any supplement or
post-effective amendment to such 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 the Registration Statement to be then listed or quoted
on the primary exchange or quotation system on which the Common Stock is then
listed or quoted.
(f) Notice of Certain Events.
(i) The Company shall promptly notify each Holder of, and
confirm in writing, (a) the receipt by the Company of any request by the SEC for
amendments or supplements to any Registration Statement or Prospectus related
thereto or for additional information, and (b) the filing of any Registration
Statement or any Prospectus, amendment or supplement related thereto or any
post-effective amendment to any Registration Statement and the effectiveness of
any post-effective amendment.
(ii) At any time when a Prospectus relating to a Registration
Statement is required to be delivered under the Securities Act, the Company
shall immediately notify each Holder of the happening of any event as 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
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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 applicable 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.
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 in accordance with Section 3. 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 of any threat of any proceeding for such purpose.
5. Expenses. Except as otherwise provided in this Section 5, the
Company shall bear all Registration Expenses incurred by the Company, the
Operating Partnership, or any affiliate of the Company in connection with the
registration of the Registrable Shares pursuant to this Agreement. 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. In the event that the
Company (in its sole discretion and without any obligation to do so) amends a
Registration Statement in response to a request by a Holder for such amendment
or to reflect a change in the plan of distribution or ownership interests with
respect to a Holder's Registrable Shares, the Holder requesting such amendment
or whose actions require such amendment shall bear all fees, costs and expenses
incurred by the Company, the Operating Partnership, or any affiliate of the
Company or by such Holder in connection therewith, including fees related to the
delisting of Shares from any national securities exchange or quotation system on
which such Shares had been listed for trading.
6. Indemnification by the Company. The Company agrees to
indemnify each Holder and its respective officers, directors, employees, agents,
representatives and affiliates, and each person or entity, if any, that controls
such Holder within the meaning of the Securities Act, and
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any underwriter of an offering registered on a Registration Statement 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), 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 any 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 other person to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof), cost 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,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with information which was
furnished to the Company for use in connection with the Registration Statement
or the Prospectus contained therein by or on behalf of a Holder or any other
Indemnitee or (ii) such Indemnitee's failure to send or give a copy of the most
current Prospectus furnished to such Indemnitee 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 Prospectus.
7. Covenants of the Holders. Each Holder hereby agrees (a) to
cooperate with the Company and to furnish to the Company all such information
concerning its plan of distribution and its 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 such 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, against any and all losses,
claims, damages, actions, liabilities, costs and expenses arising out of or
based upon (x) 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 information regarding such Holder, its plan of distribution or
its ownership interests, which was furnished to the Company by or on behalf of
such Holder for use therein unless such statement or omission was corrected in a
writing delivered to the Company not less than five (5) business days prior to
the date of the final Prospectus (as supplemented or amended, as the case may
be) or (y) the failure by such Holder to deliver or cause to be delivered the
most current Prospectus furnished by the Company to the Holder to any purchaser
of the shares covered by such Registration Statement from such Holder.
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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 purpose. The
Company shall use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such a Registration Statement as soon as
reasonably practicable.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a 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 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 (i) make it impractical or
unadvisable to cause the Registration Statement or such filings to become
effective or to amend or supplement the Registration Statement and (ii) cause
the officers and directors of the Company who are obligated to make filings
under Section 16 of the Securities Exchange Act of 1934, as amended, to be
prohibited from trading Common Stock, but such suspension shall continue only
for so long as such event or its effect is continuing and in no event will such
suspension continue for more than ninety (90) days. The twelve-month period
during which an effective Registration Statement is required to remain effective
pursuant to Section 3(a) shall be extended by the period of any Suspension Event
that occurs when such Registration Statement is required to be effective. The
Company shall notify each Holder 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 whose Registrable Shares
are covered by a Registration Statement filed pursuant to Section 3 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
Statement), during the 15-day period prior to, and during the 60-day period
beginning on, the date of commencement 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(f)(ii) hereof to and
including the date when each Holder of
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Registrable Shares covered by such Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by Section
3(f)(ii) hereof.
9. Black-Out Period. Each Holder agrees that, following the
effectiveness of any Registration Statement (except an Issuance Registration
Statement) relating to Registrable Shares of such Holder, such Holder will not
effect any sales of the Registrable Shares pursuant to the Registration
Statement or any filings with any state securities commissions at any time after
such Holder has received notice from the Company to suspend sales as a result of
the occurrence or existence of any Suspension Event or so that the Company may
correct or update the Registration Statement or such filing. 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 (an
"Advice"), which notice shall be given by the Company not later than five (5)
business days after the conclusion of any such Suspension Event. Each Holder
further agrees that, following the effectiveness of any Issuance Registration
Statement, as a result of the occurrence or existence of any Suspension Event or
so that the Company may correct or update the Registration Statement or any
filings with any state securities commissions and until issuance of an Advice,
the Company may suspend the issuance of Common Stock pursuant to an Issuance
Registration Statement (but any Common Stock not issued because of any such
suspension must be delivered promptly following issuance of the Advice).
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 shares of
Common Stock of the Company or any shares of Common Stock of the Company owned
by any other stockholder(s) 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.
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The Company and each of 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 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 or any applicable
state securities laws or to take any action that would make available any
exemption from the registration requirements of such laws.
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 the Holders of in excess of fifty percent (50%) of
the aggregate of all Registrable Shares.
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(e) or
Section 7, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Summit Properties Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, General Counsel
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with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, P.C.
If to the Holders: As listed on the applicable Holder signature
page.
with a copy to: Pircher, Xxxxxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Real Estate Notices (LJP)
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
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. This Agreement may not be assigned by any Holder and any
attempted assignment hereof by any Holder will be void and of no effect and
shall terminate all obligations of the Company hereunder; provided, however,
that any Holder may assign its rights to any person to whom such Holder
transfers Registrable Shares in connection with a transaction that does not
require registration under the Securities Act.
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 hereof shall be enforceable to the fullest extent permitted by law.
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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 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMPANY: SUMMIT PROPERTIES INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
OPERATING PARTNERSHIP: SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: SUMMIT PROPERTIES INC.,
its sole general partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
HOLDERS: /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------------------------------
XXXX XXXXXXX XXXXXXX
Address for Notice:
c/o Xxxxxx X. Xxxxxxxx
North American Properties
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone:
-----------------------------
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/s/ Xxxxxx Xxxxxxxx Xxxxxxx
---------------------------------------------------
XXXXXX XXXXXXXX XXXXXXX
Address for Notice:
c/o Xxxxxx X. Xxxxxxxx
North American Properties
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone:
-----------------------------------
/s/ Xxxx X. Xxxxx
---------------------------------------------------
XXXX X. XXXXX
Address for Notice:
c/o Xxxxxxx X. Xxxxx
Cin-Fab
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone:
-----------------------------------
/s/ Xxxxx X. Xxxxx
---------------------------------------------------
XXXXX X. XXXXX
Address for Notice:
c/o Xxxxxxx X. Xxxxx
Cin-Fab
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone:
-----------------------------------
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/s/ X. Xxxx Xxxxx
------------------------------------------------
X. XXXX XXXXX
Address for Notice:
c/o Xxxxxxx X. Xxxxx
Cin-Fab
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone:
-----------------------------------
/s/ Xxxxxxx X. Xxxxx
------------------------------------------------
XXXXXXX X. XXXXX
Address for Notice:
Xxxxx Enterprises
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone:
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------------------
XXXXXX X. XXXXX, XX.
Address for Notice:
c/o Xxxxxxx Xxxxx
Xxxxx Enterprises
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone:
----------------------------------
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/s/ Xxxx X. Xxxxxx
-----------------------------------------------
XXXX X. XXXXXX
Address for Notice:
c/o Xxxxxxx Xxxxx
Xxxxx Enterprises
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone:
---------------------------------
/s/ Xxxxx X. Xxxxx
-----------------------------------------------
XXXXX X. XXXXX
Address for Notice:
c/o Xxxxxx X. Xxxxxxxx
North American Properties
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone:
-------------------------------
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------
XXXXXXXX X. XXXXXXX
Address for Notice:
c/o H.C. Xxxx Xxxxxxx
Xxxx Xxxxxxx & Xxxxxxxx LLP
PNC Center
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone:
---------------------------------
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XXXX XXXXX OSTEVOLL REVOCABLE TRUST
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------------------
Xxxxxx X. Xxxxx, Xx.,
Trustee
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx,
Trustee
Address for Notice:
c/o Xxxxxxx Xxxxx
Xxxxx Enterprises
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone:
---------------------------
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------------
XXXXXX X. XXXXXXXX
Address for Notice:
North American Properties
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone:
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------------------------
XXXXXXX X. XXXXXXXX, XX.
Address for Notice:
North American Properties
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone:
---------------------------
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KW PARTNERSHIP
By: /s/ Xxxxxxxx X. Xxxx, Xx.
--------------------------------------
Xxxxxxxx X. Xxxx, Xx.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx,
General Partner
By: /s/ X. X. Xxxxxxxx, Xx.
--------------------------------------
X.X. Xxxxxxxx, Xx.,
General Partner
Address for Notice:
000 X. Xxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone:
--------------------------
LAD PARTNERSHIP
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx,
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx,
General Partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxx,
General Partner
Address for Notice:
000 X. Xxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone:
----------------------------
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/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------------
XXXXXXX X. XXXXXXXX
Address for Notice:
00000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Telephone:
--------------------------------
MILAN INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxx,
Trustee
Address for Notice:
0000 Xxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Telephone:
/s/ S. Xxxxxx Xxxxxxx
--------------------------------------------------
S. XXXXXX XXXXXXX
Address for Notice:
00000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Telephone:
----------------------------
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