REGISTRATION AGREEMENT
REGISTRATION AGREEMENT dated as of April 30, 1997, among ASR
Investments Corporation, a Maryland corporation (the "Company"); Heritage
Communities LP, a Delaware limited partnership ("Heritage LP"); and the
investors listed on the signature pages hereto (referred to collectively as the
"Transferors" and individually as a "Transferor") for the benefit of all
Distributees (as defined herein).
WITNESSETH
WHEREAS, the Company, the Transferors, and other persons are parties to
that certain Master Combination and Contribution Agreement dated as of November
8, 1996, as amended (the "Combination Agreement"), under which the Transferors
agreed to contribute certain properties and assets to Heritage LP in exchange
for LP Units (as defined herein);
WHEREAS, the LP Units held by the Transferors will be convertible into
shares of the Company's Common Stock, $.01 par value per share, in accordance
with the Amended and Restated Agreement of Limited Partnership of Heritage LP by
and among the Company, the Transferors, and Heritage Communities SGP, Inc., a
wholly owned subsidiary of ASR;
WHEREAS, the Transferors will distribute the LP Units to their
respective partners (the "Distributees"), who are determined to be accredited
investors as defined in Regulation D under the Securities Act, as specified in
Section 2.1(d) of the Combination Agreement; and
WHEREAS, in order to induce the Distributees to consent to the
transactions contemplated by the Combination Agreement and to provide the
Distributees with certain opportunities for liquidity following the consummation
of the transactions contemplated by the Combination Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement.
NOW THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt, adequacy, and sufficiency of which are
hereby acknowledged by the parties, the parties hereby agree as follows:
1. REGISTRATION
1.1 Definitions. As used in this Agreement, the following terms shall
have the following meanings:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Blackout Period" means any period (A) beginning
on the date on which the Company notifies the Holders (as defined below) that
(i) the Board of Directors of the Company, in its good faith judgment, has
determined that such Distributees' sales of Shares pursuant to the Registration
Statement (or the use of the Registration Statement or related prospectus) would
interfere with any pending material acquisition, material corporate
reorganization, or any other material corporate transaction involving the
Company (a "Transaction Blackout"); or (ii) based upon the advice of outside
counsel to the Company, such Distributees' sale of Shares pursuant to the
Registration Statement (or the use of the Registration Statement or related
prospectus) would require disclosure of material information and the Company's
Board of Directors, in its reasonable judgment and in good faith, resolves that
the Company has a bona fide business purpose for preserving such information
confidential (an "Information Blackout"); and (B) ending on the date (1) in the
case of a Transaction Blackout, the earliest of (x) one month after the
completion of such acquisition, corporate reorganization, or other similar
transaction, (y) promptly after abandonment of such acquisition, corporate
reorganization, or other similar transaction and (z) 90 days after the date of
the Company's written notice of such Transaction Blackout; and (2) in the case
of an Information Blackout, the earlier of (x) the date upon which such material
information is disclosed to the public or
ceases to be material and (y) 90 days after the Company makes such good faith
determination. Notwithstanding anything contained herein, a Blackout Period or
Periods shall not be in effect for more than four months during any 12-month
period; provided, however, the holders of a majority of the Registrable
Securities may agree with ASR as to any change in the definition of Blackout
Period or its application, which shall be binding on all holders of Registrable
Securities.
(c) The term "Holders" means those persons owning or having
the right to acquire Registrable Securities (as defined below).
(d) The term "LP Units" means limited partnership interests in
Heritage LP.
(e) The term "Maximum Includable Securities" shall mean the
maximum number of shares of each type or class of the Company's securities that
a managing or principal underwriter, in its good faith judgment, deems
practicable to offer and sell at that time in a firm commitment underwritten
offering without materially and adversely affecting the marketability or price
of the securities of the Company to be offered. Where more than one type or
class of the Company's securities are to be included in a registration, the
managing or principal underwriter of the offering shall designate the maximum
number of each such type or class of securities that is included in the Maximum
Includable Securities.
(f) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act in a form suitable for
the public distribution of Registrable Securities for cash in a manner commonly
utilized by holders of such securities, and the declaration or ordering of
effectiveness of such registration statement or document.
(g) The term "Registrable Security" shall refer to (i) any
Shares issued or issuable to a Transferor or Distributee upon exchange of Units
and (ii) any Shares or other securities that may subsequently be issued or
issuable with respect to the Shares as a result of a stock split or dividend or
any sale, transfer, assignment, or other transaction by the Company or a Holder
involving the Shares and any securities into which the Shares may thereafter be
changed as a result of merger, consolidation, recapitalization, or otherwise. As
to any particular Registrable Securities, such securities will cease to be
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Act or sold to the public through a broker,
dealer, or market-maker in compliance with Rule 144 under the Act.
(h) The number of shares of "Registrable Securities then
outstanding" shall be equal to the sum of the number of shares of Common Stock
outstanding which are Registrable Securities plus the number of shares of Common
Stock issuable upon conversion of the outstanding LP Units.
(i) "SEC" means the Securities and Exchange Commission.
(j) The term "Subsequent Financing" means the Company's
offering of the Company's Common Stock or other securities convertible or
exercisable into shares of the Company's Common Stock within 36 months after the
Closing as specified in Section 8.1 of the Contribution Agreement, for the
purpose (among others) of raising debt or equity capital.
1.2 Mandatory Registration.
(a) Not later than nine months after the Closing, the Company
shall file a registration statement (the "Registration Statement") under the Act
with the SEC and under any applicable state securities laws covering the shares
of the Company's Common Stock issuable upon conversion of the LP Units (the
"Shares") and shall use its best efforts to cause the Registration Statement to
become effective by the time the LP Units may be converted into shares of the
Company's Common Stock and to remain effective for a period of 10 years
thereafter (the "Registration Period").
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(b) The Company shall have the right to include additional
shares ("Additional Shares") of its Common Stock to be sold by the Company
and/or by other holders of its Common Stock in the Registration Statement to be
filed pursuant to this Section 1.2.
(c) Notwithstanding the foregoing, during the Registration
Period, if the Company shall furnish to Holders a certificate signed by the
President of the Company stating that a Blackout Period is in effect, the
Holders may not convert LP Units into Shares registered under the Registration
Statement during the term of such Blackout Periods; provided, however, a
Blackout Period or Periods shall not be in effect for more than four months
during any 12- month period, and the Registration Period shall be extended by a
period equal to any Blackout Periods that may be in effect. [Upon the third
anniversary of this Agreement, the Company may no longer effect a Blackout
Period under this Section 1.2(c).]
1.3 Demand Registration Rights.
(a) If the Company shall receive at any time after the Closing
as specified in Section 8.1 of the Combination Agreement a written request from
the Holders (the "Initiating Holders") of Registrable Securities requesting the
registration of Registrable Securities with a value in excess of $5,000,000 in a
firm underwriting by one or more designated underwriters of national reputation,
then the Company shall, within 10 days of the receipt thereof, give written
notice of such request to all Holders and shall, subject to the limitations of
Section 1.3(b), effect as soon as practicable the registration under the Act of
all Registrable Securities that the Holders request to be registered within 60
days of the mailing of such notice by the Company in accordance with the notice
provisions of Section 2.3 hereof.
(b) The selection of such managing or principal underwriter(s)
shall be subject to the approval of the Company, such approval not to be
unreasonably withheld. The Company shall include information regarding the
identity of the managing or principal underwriter and the proposed terms of the
underwriting in the written notice to all Holders referred to in Section 1.3(a).
The right of any Holder to include the Holder's Registrable Securities in such
underwritten registration shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting (unless otherwise mutually agreed by a majority in interest
of the Initiating Holders and such Holder) to the extent provided herein. The
Company and all Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders and reasonably acceptable to the Company.
(c) Notwithstanding any other provision of this Section 1.3,
if the underwriter advises the Company in writing that marketing factors require
a limitation of the number of shares or other securities to be underwritten,
then the Company shall furnish all Holders of Registrable Securities, which
would otherwise be underwritten pursuant hereto, with a written statement of the
managing or principal underwriter as to the Maximum Includable Securities, and
the number of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders requesting registration on a pro rata
basis, with the number of Registrable Securities of each Holder thereof included
in the registration to be that number determined by multiplying the total number
of Registrable Securities included in the Maximum Includable Securities by a
fraction, the numerator of which will be the total number of Registrable
Securities that such Holder owns, and the denominator of which will be the total
number of Registrable Securities owned by all Holders that have requested
inclusion of Registrable Securities in the registration. Any reduction of more
than 50% of the Registrable Securities sought to be registered will not be
considered a registration under this Section 1.3 for the purposes of Section
1.3(d).
(d) The Company shall be obligated to effect only one such
registration pursuant to this Section 1.3.
(e) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.3 a certificate signed by the President of the Company stating that a Blackout
Period is in effect, the Company shall have the right to defer such filing
during the term of such Blackout
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Period; provided, however, that a Blackout Period or Periods shall not be in
effect for more than four months during any 12-month period.
(f) If the Holders give written notice requesting registration
of their Registrable Securities pursuant to this Section 1.3, and if the Company
at that time is not eligible to register its securities on Form S-3, the Company
shall prepare and file a registration statement on Form S-1 or S-2 (or other
appropriate form for the general registration of securities) as may be
appropriate in accordance with the terms and conditions set forth in this
Section 1.3.
(g) The Company may propose to include Additional Shares of
Common Stock or other securities to be sold by the Company and/or by other
holders of Common Stock or other securities in any registration statement to be
filed pursuant to this Section 1.3. The Holders shall have the right to reduce
the number of Additional Shares requested to be registered by the Company
pursuant to this Section 1.3(g) (including, if necessary, to zero) if, in the
good faith opinion of the underwriter or underwriters of such offering, the
inclusion of such Additional Shares would materially and adversely affect the
marketability or price of the Registrable Securities to be offered by the
Holders in such registration.
1.4 Piggy-Back Registration Rights.
(a) Except as provided in Section 1.4(e), if at any time the
Company proposes to file on its behalf and/or on behalf of any of its
securityholders a registration statement under the Act on Form X-0, X-0 or S-3
(or any other appropriate form for the general registration of securities) with
respect to any of its capital stock or other securities, the Company shall give
each Holder written notice at least 20 days before the filing with the SEC of
such registration statement. If any Holder desires to have Registrable
Securities registered pursuant to this Section 1.4, such Holder shall so advise
the Company in writing within 15 days after the date of mailing of such notice
from the Company. The Company shall thereupon include in such filing the number
of Registrable Securities for which registration is so requested, subject to its
right to reduce the number of Registrable Securities as hereinafter provided,
and shall use its best efforts to effect registration under the Act of such
Registrable Securities. Notwithstanding the foregoing, the Company shall not be
required to provide notice of filing of a registration statement and to include
therein any Registrable Securities if the proposed registration is
(i) a registration of stock options, stock purchases,
or compensation or incentive plans, or of securities issued or issuable pursuant
to any such plan, or a dividend reinvestment plan on Form S-8 or other
comparable form then in effect; or
(ii) a registration of securities proposed to be
issued in exchange for securities or assets of, or in connection with, a merger
or consolidation with another corporation.
(b) In the event the offering in which any Holder's
Registrable Securities are to be included pursuant to this Section 1.4 is to be
underwritten, the Company shall furnish the Holders with a written statement of
the managing or principal underwriter as to the Maximum Includable Securities as
soon as practicable after the expiration of the 15-day period provided for in
Section 1.4(a). If the total number of securities proposed to be included in
such registration statement is in excess of the Maximum Includable Securities,
the number of securities to be included within the coverage of such registration
statement shall be reduced to the Maximum Includable Securities as follows:
(i) no reduction shall be made in the number of
shares of capital stock or other securities to be registered for the account of
the Company; and
(ii) the number of Registrable Securities and other
securities that may be included in the registration, if any, shall be allocated
among the Holders of Registrable Securities and holders of other securities (the
"Other Holders") requesting inclusion on a pro rata basis, with the number of
each type or class of securities of each Holder and Other Holder thereof
included in the registration to be that number determined by
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multiplying (A) the total number of such type or class of security included in
the Maximum Includable Securities less (B) the number of such type or class of
security to be registered for the account of the Company, by a fraction, the
numerator of which will be the total number of such type or class of security
that such Holder or Other Holder owns, and the denominator of which will be the
total number of such type or class of security owned by all Holders and Other
Holders that have requested inclusion of such type or class of security in the
registration.
(c) The Company shall, in its sole discretion, select the
underwriter or underwriters, if any, who are to undertake the sale and
distribution of the Registrable Securities to be included in a registration
statement filed under the provisions of this Section 1.4.
(d) At such time that the Company intends to effect a
Subsequent Financing, it shall notify the Holders of such intent and shall
designate the proposed offering as a Subsequent Financing. Except to the extent
that the Company, in its sole discretion, may otherwise permit, the Holders
shall have no right to have any Registrable Securities registered pursuant to
this Section 1.4 in any Subsequent Financing.
(e) The right to registration provided in this Section 1.4 is
in addition to and not in lieu of the demand registration rights provided in
Section 1.3. The provisions of this Section 1.4 shall not apply, however, to any
Holders requesting registration pursuant to this Section 1.4 that are or may be
free, at the time, to sell within the next 90-day period all of the Registrable
Securities with respect to which such registration was requested in accordance
with Rule 144 (or any similar rule or regulation) under the Act.
1.5 Obligations of the Company. Whenever required under Section 1.3 or
Section 1.4 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement on
such form as the Company deems appropriate with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective. With respect to registration statements filed pursuant to
Section 1.3 or Section 1.4 hereof, upon the request of the Holders of a majority
of the Registrable Securities registered thereunder, the Company shall keep such
registration statement effective for up to 180 days, or such shorter period as
is reasonably required to dispose of all securities covered by such registration
statement.
(b) Notify the Holders promptly after it has received notice
of the time when such registration statement has become effective or any
supplement to any prospectus forming a part of such registration statement has
been filed.
(c) Prepare and file with the SEC, and promptly notify the
Holders of the filing of, such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(d) Advise each Holder promptly after it has received notice
or obtained knowledge thereof of the issuance of any stop order by the SEC
suspending the effectiveness of any such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly use
its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
(e) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(f) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify
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to do business, to file a general consent to service of process, or to become
subject to tax liability in any such states or jurisdictions or to agree to any
restrictions as to the conduct of its business in the ordinary course thereof.
(g) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the underwriters of such offering, together with each
Holder participating in such underwritten offering, as provided in Section
1.6(c).
(h) Prepare and promptly file with the SEC, and promptly
notify such Holders of the filing of, any amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event has occurred as
the result of which any such prospectus must be amended in order that it does
not make any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(i) In case any of such Holders or any underwriter for any
such Holders is required to deliver a prospectus at a time when the prospectus
then in effect may no longer be used under the Act, prepare promptly upon
request such amendment or amendments to such registration statement and such
prospectus as may be necessary to permit compliance with the requirements of the
Act.
(j) If any of the Registrable Securities are then listed on
any securities exchange or the Nasdaq Stock Market, the Company will cause all
such Registrable Securities covered by such registration statement to be listed
on such exchange or the Nasdaq Stock Market.
1.6 Obligations of Holders. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
each of the selling Holders shall:
(a) Furnish to the Company such information regarding
themselves, the Registrable Securities held by them, the intended method of sale
or other disposition of such securities if the registration is pursuant to
Section 1.3, the identity of and compensation to be paid to any underwriters
proposed to be employed in connection with such sale or other disposition if the
registration is pursuant to Section 1.3, and such other information as may
reasonably be required to effect the registration of their Registrable
Securities.
(b) Notify the Company, at any time when a prospectus relating
to Registrable Securities covered by a registration statement is required to be
delivered under the Act, of the happening of any event with respect to such
selling Holder 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 a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing.
(c) In the event of any underwritten public offering, each
Holder participating in such underwriting shall enter into and perform its
obligations under the underwriting agreement for such offering, and, if
requested to do so by the underwriters managing such offering, each Holder shall
enter into a customary holdback agreement.
1.7 Expenses of Mandatory Registration. The Company shall bear and pay
all expenses incurred in connection with registrations, filings or
qualifications pursuant to Section 1.2 (other than underwriting discounts and
commissions with respect to Registrable Securities included in such registration
and any fees and costs of the Holders' legal counsel or other advisors),
including (without limitation) all registration, filing, and qualification fees,
Blue Sky fees and expenses, printers' and accounting fees, costs of listing on
the stock exchange or exchanges on which the Company's Common Stock is traded,
costs of furnishing such copies of each preliminary prospectus, final
prospectus, and amendments thereto as each Holder may reasonably request, fees
and disbursements of counsel for the Company.
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1.8 Expenses of Demand Registration. The Company shall bear and pay all
expenses incurred in connection with registrations, filings or qualifications
pursuant to Section 1.3 (other than underwriting discounts and commissions with
respect to Registrable Securities included in such registration and any fees and
costs of the Holders' legal counsel or other advisors), including (without
limitation) all registration, filing, and qualification fees, Blue Sky fees and
expenses, printers' and accounting fees, costs of listing on the American Stock
Exchange, costs of furnishing such copies of each preliminary prospectus, final
prospectus, and amendments thereto as each Holder may reasonably request, fees
and disbursements of counsel for the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.3 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case the Holders participating
in such offering and favoring such withdrawal shall bear such expenses);
provided further, however, that if such registration request has been withdrawn
by virtue of a material adverse change in the condition, business, or prospects
of the Company from that known to the Holders at the time of their request, then
the Holders shall not be required to pay any of such expenses and shall retain
their rights pursuant Section 1.3.
1.9 Expenses of Piggy-Back Registration. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to each of the
registrations pursuant to Section 1.4 (other than underwriting discounts and
commissions with respect to Registrable Securities included in such registration
and any fees and costs of the Holders' legal counsel or other advisors),
including (without limitation) all registration, filing, and qualification fees,
Blue Sky fees and expenses, printers' and accounting fees, costs of listing on
the American Stock Exchange, costs of furnishing such copies of each preliminary
prospectus, final prospectus, and amendments thereto as each Holder may
reasonably request.
1.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder,
the officers and directors of each Holder, any underwriter (as defined in the
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange Act of
1934, as amended (the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which such person or persons may become
subject under the Act, the 1934 Act, or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in any registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Company will reimburse each
such Holder, officer or director, underwriter, or controlling person for any
legal or other expenses reasonably incurred by such person or persons in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 1.10(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company, nor shall the Company be liable in any such
loss, claim, damage, liability, or action to the extent that it arises out of or
is based upon (i) a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by such Holder, underwriter, or controlling person, or (ii) the
failure of such Holder, underwriter, or controlling person to deliver a copy of
the registration statement or the prospectus, or any amendments or supplements
thereto, after the Company has furnished such person with a sufficient number of
copies of the same.
(b) Each selling Holder will indemnify and hold harmless the
Company, each of its officers and directors, and each person, if any, who
controls the Company within the meaning of the Act, any underwriter and any
other Holder selling securities in such registration statement or any of its
directors or officers or any person who controls such Holder, against any
losses, claims, damages, or liabilities (joint or several) to which the Company
or any such officer, director, controlling person, or underwriter or controlling
person may become subject, under the Act, the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions
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in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will reimburse any legal or other expenses reasonably incurred by the Company or
any such officer, director, controlling person, underwriter or controlling
person, other Holder, officer, director, or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 1.10(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without the
consent of the Holder. Notwithstanding anything to the contrary herein
contained, a Holder's indemnity obligation, in such person's capacity as a
Holder, shall be limited to the net proceeds received by such Holder from the
offering out of which the indemnity obligation arises.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnified party, except that such fees and expenses shall be paid by
the indemnifying party if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.11, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.11.
(d) The indemnification provided by this Section 1.10 shall be
a continuing right to indemnification and shall survive the registration and
sale of any of the Registrable Securities hereunder and the expiration or
termination of this Agreement.
1.11 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, as long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 Amendment and Waiver. Any amendment or waiver of any provision
under this Agreement may be effected only with the written consent of the
Company and the Holders of at least a majority of the Registrable Securities
then outstanding.
1.13 Remedies. The parties hereto acknowledge and agree that the breach
of any part of this Agreement may cause irreparable harm and that monetary
damages alone may be inadequate. The parties hereto therefore agree that either
party shall be entitled to injunctive relief or such other applicable remedy as
a court of
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competent jurisdiction may provide. Nothing contained herein will be construed
to limit any party's right to any remedies at law, including recovery of damages
for breach of any part of this Agreement.
2. MISCELLANEOUS
2.1 Holdback Agreement. If during the period commencing 90 days after
the effectiveness of the Registration Statement (i) the Company shall file a
registration statement (other than in connection with the registration of
securities issuable pursuant to an employee stock option, stock purchase, or
other similar plan or pursuant to a merger, exchange offer, or a transaction of
the type specified in Rule 145(a) under the Securities Act) with respect to the
Company's Common Stock and (ii) with reasonable prior notice, the Company (in
the case of a non-underwritten offering by the Company pursuant to such
registration statement) advises the Distributees in writing that a public sale
or distribution of Shares by the Distributees would adversely affect such
offering or the managing underwriter (in the case of an underwritten offering by
the Company pursuant to such registration statement) advises the Company and the
Distributees in writing that a public sale or distribution of Shares by the
Distributees would adversely affect such offering, then each Distributee shall,
to the extent not prohibited by applicable law, (x) refrain from effecting any
public sale or distribution of such Shares commencing on the effectiveness of
such registration statement, (y) be entitled to include such Shares in such
registration statement, subject to customary underwriter cut back, and sell such
Shares pursuant thereto, and (z) sign a customary lock-up agreement with the
managing underwriter (in the case of an underwritten offering) or the Company of
scope and duration identical to the scope of the lock-up agreement signed by the
Company and each director and executive officer of the Company, but in no event
to exceed 90 days. Only one holdback arrangement under this Section shall be
invoked by the Company in any 12-month period.
2.2 Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed in accordance with the laws of the State of Arizona, notwithstanding
any Arizona or other conflict-of-law provisions to the contrary.
2.3 Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received when delivered against
receipt, upon receipt of a facsimile transmission, or when deposited in the
United States mails, first class postage prepaid, addressed as set forth below:
(a) If to the Company:
ASR Investments Corporation
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxx, President
with a copy given in the manner
prescribed above, to:
X'Xxxxxx, Cavanagh, Anderson,
Xxxxxxxxxxxxx & Xxxxxxxx, P.A.
Xxx Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(b) If to any Holder, to the address of such Holder as it
appears in the records of Heritage LP.
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Any party may alter the address to which communications or
copies are to be sent by giving notice of such change to each of the other
parties hereto of address in conformity with the provisions of this paragraph
for the giving of notice.
2.4 Binding Nature of Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors, and assigns.
2.5 Entire Agreement. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing.
2.6 Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
2.7 Gender. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
2.8 Indulgences, Not Waivers. Neither the failure nor any delay on the
part of a party to exercise any right, remedy, power, or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power, or privilege preclude any other or further
exercise of the same or any other right, remedy, power, or privilege, nor shall
any waiver of any right, remedy, power, or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power, or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
2.9 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any photographic or xerographic copy of this Agreement, with all
signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as of it were an executed counterpart of this
Agreement.
2.10 Provisions Separable. The provisions of this Agreement are
independent and separable from each other, and no provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any reason any
other or others of them may be invalid or unenforceable in whole or in part.
2.11 Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or holiday.
10
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date and year first above written.
ASR INVESTMENTS CORPORATION HERITAGE COMMUNITIES, L.P.
By: /s/ Xxx X. Xxxxx By: /s/ Xxxxxx X. Xxxx
------------------------------------------ --------------------------------
Name: Xxx X. Xxxxx Its: Authorized Representative
Its: Chairman of the Board, President -------------------------------
and Chief Executive Officer
TRANSFERORS:
FIRST ASPEN COURT ASSOCIATES, L.P. FIRST APPIAN WAY ASSOCIATES, L.P.
By: /s/ Xxx X. Xxxxxx
---------------------------------------
Its: General Partner By:/s/ Xxx X. Xxxxxx
-------------------------------------- --------------------------------
Its: General Partner
-------------------------------
FIRST BRIAR PARK ASSOCIATES, A WASHINGTON
LIMITED PARTNERSHIP FIRST GREENWOOD CREEK
ASSOCIATES, L.P.
By: /s/ Xxx X. Xxxxxx
---------------------------------------
Its: General Partner By:/s/ Xxx X. Xxxxxx
-------------------------------------- --------------------------------
Its: General Partner
-------------------------------
FIRST CHELSEA PARK ASSOCIATES, L.P. FIRST HIGHLANDS ASSOCIATES, L.P.
By: /s/ Xxx X. Xxxxxx By:/s/ Xxx X. Xxxxxx
--------------------------------------- --------------------------------
Its: General Partner Its: General Partner
-------------------------------------- -------------------------------
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FIRST MARYMONT ASSOCIATES, L.P. FIRST TIMBERCREEK LANDING
ASSOCIATES, L.P.
By: /s/ Xxx X. Xxxxxx By:/s/ Xxx X. Xxxxxx
--------------------------------------- --------------------------------
Its: General Partner Its: General Partner
-------------------------------------- -------------------------------
FIRST MONTFORT ASSOCIATES, L.P. CAMPUS DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP
By: /s/ Xxx X. Xxxxxx By:/s/ Xxx X. Xxxxxx
--------------------------------------- --------------------------------
Its: General Partner Its: General Partner
-------------------------------------- -------------------------------
FIRST RIVERWAY ASSOCIATES, L.P. CAMPUS COMMONS ASSOCIATES -
LIMITED PARTNERSHIP
By: /s/ Xxx X. Xxxxxx By:/s/ Xxx X. Xxxxxx
--------------------------------------- --------------------------------
Its: General Partner Its: General Partner
-------------------------------------- -------------------------------
FIRST SPRINGFIELD ASSOCIATES, L.P. FIRST PACIFIC SOUTH CENTER
ASSOCIATES, L.P.
By: /s/ Xxx X. Xxxxxx By:/s/ Xxx X. Xxxxxx
--------------------------------------- --------------------------------
Its: General Partner Its: General Partner
-------------------------------------- -------------------------------
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