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Exhibit 10.2
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-up Agreement (the "Agreement") is
entered into as of January 10, 1996 by and among Summit Properties Inc., a
Maryland corporation (the "Company"), Xxxxxx X. Call ("Call"), Xxxx X. Xxxxxxxxx
("Xxxxxxxxx"), each of which contemporaneously herewith is to become a partner
of Summit Properties Partnership, L.P., a Delaware limited partnership (the
"Partnership"), and their successors and assigns (together with, Call and
Xxxxxxxxx, the "Holders," or individually, a "Holder").
WHEREAS, Call and Xxxxxxxxx are to receive contemporaneously herewith
units of limited partnership interest in the Partnership, issued without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), in consideration for their contribution to the Partnership of land
pursuant to that certain Contract for Purchase of Real Estate between the
Company and Village Development Corporation dated as of October 31, 1995 and any
amendment thereto (collectively, the "Acquisition Agreement");
WHEREAS, such Units may be redeemed for shares of the Company' s common
stock, par value $. 01 per share ("Common Stock" ), issued without registration
under the Securities Act; and
WHEREAS, it is a condition precedent to the closing of the Acquisition
Agreement that the Company provide Call and Xxxxxxxxx with the registration
rights set forth in Section 3 hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions.
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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, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including post-
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effective amendments, and in each case including all material incorporated by
reference therein.
"REGISTRABLE SHARES" shall mean the Shares, excluding (i) Shares for which
a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible for sale pursuant to Rule 144(k) under
the Securities Act.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 5 hereof; and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by a
selling Holder, the fees and disbursements of counsel representing a selling
Holder, and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a selling Holder, all of which shall be borne by such
Holder in all cases.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and 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, 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 or to be issued to
the Holder(s) upon redemption or in exchange for its or their Units.
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2. Lock-Up Agreement.
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(a) Each Holder hereby agrees that, except as set forth in Section
2(b) below, for one (1) year from the date hereof (the "Lock-Up Period"),
without the prior written consent of the Company, it will not offer, sell,
contract to sell, hypothecate, pledge, grant an option, right or warrant to
purchase or otherwise dispose of, directly or indirectly (collectively "Sell"),
any Shares or Units (the "Lock-Up") .
(b) The following Sales of Shares and/or Units shall not be
subject to the Lock-Up set forth in Section 2(a):
(i) a Holder who is a natural person may Sell his or her
Shares or Units to his or her spouse, siblings, parents or any natural or
adopted children or other descendants or to any personal trust in which any such
family member or Holder retains the entire beneficial interest;
(ii) a Holder that is a corporation, partnership, joint
venturer or other business entity may Sell its Shares or Units to one or more
Persons who have an ownership interest in such Holder or to one or more other
entities that are wholly-owned and controlled, legally and beneficially, by such
Holder or by one or more of the Persons who have an ownership interest in such
Holder;
(iii) a Holder may Sell his or her Shares or Units to his or
her estate, executor, administrator or personal representative or to his or her
beneficiaries pursuant to a devise or bequest or by laws of descent and
distribution;
(iv) a Holder may Sell Shares or Units as a gift or other
transfer without consideration; and
(v) the Holder may Sell Shares or Units pursuant to a
pledge, grant of security interest or other encumbrance effected in a bona fide
transaction with an unrelated and unaffiliated pledgee;
PROVIDED, HOWEVER, that as a condition to any transfer of Units or Shares the
transferee must be an "accredited investor" within the meaning of Regulation D
promulgated under the Securities Act of 1933 and must provide the Company with
such representations and other assurances that the transferee is an accredited
investor as the Company deems necessary or appropriate, and PROVIDED, HOWEVER,
in the case of any transfer of Shares or Units pursuant to clauses
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(i), (ii), (iv) and (v), the transferring Holder shall, at the request of the
Company, provide evidence satisfactory to the Company that the transfer is
exempt from the registration requirements of the Securities Act.
In the event any Holder Sells any Shares or Units pursuant to Section 2(b),
such Shares or Units shall remain subject to this Agreement and, as a condition
of the validity of such disposition, the transferee shall be required to execute
and deliver a counterpart of this Agreement (except that a pledgee shall not be
required to execute and deliver a counterpart of this Agreement until it
forecloses upon such Shares or Units). Thereafter, such transferee shall be
deemed to be a Holder for purposes of this Agreement.
3. Registration.
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(a) DEMAND REGISTRATION. Subject to the conditions set forth in
this Agreement, at any time after one (1) year from the date of the closing of
the Acquisition Agreement, the Company shall, at the written request of a Holder
who is unable to sell its Registrable Shares pursuant to Rule 144(k) under the
Securities Act, cause to be filed as soon as practicable after the date of such
request by such Holder a Registration Statement under Rule 415 under the
Securities Act relating to the sale by the Holder of all of the Registrable
Shares held by such Holder in accordance with the terms hereof, and shall use
reasonable efforts to cause such Registration Statement to be declared effective
by the SEC as soon as practicable thereafter. The Company may, in its sole
discretion, elect to file a Registration Statement with respect to any or all of
the Shares before receipt of notice from any Holder. The Company agrees to use
reasonable efforts to keep the Registration Statement continuously effective
until the earlier of (i) six (6) months thereafter, or (ii) the date on which
such Holder no longer holds any Registrable Shares. 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 Rule 415
of the Securities Act relating to the original issuance by the Company of shares
of Common Stock in connection with the redemption of Holders' Units, or in the
alternative, if the registration of such original issuance is not practicable,
the sale by Holders of Registrable Shares in the form of the Common Stock to be
received in connection with the redemption of Holders' Units then, such Holders
will not have the right to request the registration of Registrable Shares under
the provisions of this Section 3(a).
(b) PIGGYBACK REGISTRATION. If at any time while any Registrable
Shares or Units are outstanding (without any obligation to do so) the Company
proposes to file a registration statement under the Securities Act in connection
with an offering of Common Stock solely for cash (other than a registration
statement (i) on
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Form S-8 or any successor form to such Form or in connection with any employee
or director welfare, benefit or compensation plan, (ii) on Form S-4 or any
successor form to such Form or in connection with an exchange offer, (iii) in
connection with a rights offering exclusively to existing holders of Common
Stock, (iv) in connection with an offering solely to employees of the Company or
its subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of the
Securities Act), whether or not for its own account, the Company shall give
prompt written notice of such proposed filing to each Holder. 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 the registration and
qualification for sale under the blue sky or securities laws of the various
states and in any underwriting in connection therewith, all Registrable Shares
for which the Company has received written requests for inclusion therein within
fifteen (15) calendar days after the notice referred to above has been given by
the Company to 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 primary 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, the
Company will include in such registration in the following priority: (i) first,
all shares of Common Stock the Company proposes to sell, (ii) second, if such
Piggyback Registration Statement is being used to register shares of the
Company's Common Stock of holders of registration rights granted under that
certain Registration Rights Agreement dated as of May 16, 1995 among the Company
and those other parties listed therein (the "Xxxxxxxx-related holders") up to
the full number of such other shares of Common Stock requested to be included in
such registration by the Xxxxxxxx-related holders which, in the opinion of such
managing underwriter, can be sold without adversely affecting the price range or
probability of success of such offering, allocated among the Xxxxxxxx-related
holders requesting registration on a pro rata basis, (iii) third, up to the full
number of shares of Common Stock requested to be included in such registration
by certain stockholders of the Company pursuant to that certain Continuing
Investor Registration Rights Agreement among the Company and the stockholders
named therein dated February 8, 1994, which in the opinion of such managing
underwriter, can be sold without adversely affecting the price range or
probability of success of such offering, allocated among such holders requesting
registration on a pro rata basis; and (iv) fourth, 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 other than
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those described in clauses (ii) and (iii), respectively, 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) The Company shall notify each Holder of the effectiveness of
any Registration Statement and shall furnish to each Holder the number of copies
of such Registration Statement (including any amendments, supplements and
exhibits), the Prospectus contained therein (including each preliminary
prospectus and all related amendments and supplements) and any documents
incorporated by reference in 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.
(d) 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 five (5) 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.
(e) The Company shall promptly notify each Holder of, and confirm
in writing, (i) the receipt by the Company of any request by the SEC for
amendments or supplements to any Registration Statement or the Prospectus
related thereto or for additional information, and (ii) 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.
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(f) 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
therein, in light of the circumstances under which they were made, not
misleading. In such event, the Company shall promptly prepare and furnish to
each Holder a reasonable number of copies of a supplement to or an amendment of
such Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registrable Shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is a part
to reflect such amendment or supplement.
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. The Company shall bear all Registration Expenses incurred
in connection with the registration of the Registrable Shares pursuant to this
Agreement, except that each Holder shall be responsible for any brokerage or
underwriting commissions and taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer
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of Registrable Shares sold by it and for any legal, accounting and other
expenses incurred by it.
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 each other person or
entity, if any, subject to liability because of his, her or its connection with
such Holder, and any underwriter and any person who controls the underwriter
within the meaning of the Securities Act (each an "Indemnitee") against any and
all losses, claims, damages, actions, liabilities, costs and expenses (including
without limitation reasonable fees, expenses and disbursements of attorneys and
other professionals), joint or several, arising out of or based upon any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to 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 person who participates as an underwriter in
the offering or sale of Registrable Shares or any other person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof), cost or expenses 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 regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished to the Company for use
in connection with the Registration Statement or the Prospectus contained
therein by such Indemnitee or (ii) such Indemnitee's failure to send or give a
copy of the final prospectus furnished to it by the Company through no fault of
the Company at or prior to the time such action is required by the Securities
Act to the person claiming an untrue statement or alleged untrue statement or
omission or alleged omission if such statement or omission was corrected in such
final prospectus.
7. COVENANTS OF HOLDER(S). 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 ownership interests with respect to its Registrable
Shares in connection with the preparation of the Registration Statement and any
filings with any state securities commissions as the Company may reasonably
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request, (b) to deliver or cause delivery of the Prospectus contained in the
Registration Statement to any purchaser of the shares covered by the
Registration Statement from the Holder and (c) to indemnify the Company, its
officers, directors, employees, agents, representatives and affiliates, and each
person, if any, who controls the Company within the meaning of the Securities
Act, and each other person, if any, subject to liability because of his
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either a Registration Statement or the Prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if and to the extent
that such statement or omission occurs from reliance upon and in conformity with
written information regarding the Holder, its plan of distribution or its
ownership interests, which was furnished to the Company by the Holder expressly
for use therein unless such statement or omission was corrected in writing 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 (ii) the failure
by the Holder to deliver or cause to be delivered the Prospectus contained in
the Registration Statement (as amended or supplemented, if applicable) furnished
by the Company to the Holder to any purchaser of the shares covered by the
Registration Statement from the Holder through no fault of the Company.
8. Suspension of Registration Requirement.
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(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 the Registration Statement 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 the Registration
Statement at the earliest possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use its best efforts
to cause the Registration Statement and any filings with any state securities
commission to become effective or to amend or supplement the Registration
Statement shall be suspended in the event and during such period as unforeseen
circumstances exist (including without limitation (i) an underwritten primary
offering by the Company if the Company is advised by the underwriters that sale
of Registrable Shares under the Registration Statement would have a material
adverse effect on 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
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Company in the Registration Statement or such filing, as to which the Company
has a BONA FIDE business purpose for preserving confidentiality or which renders
the Company unable to comply with SEC requirements) (such unforeseen
circumstances being hereinafter referred to as a "Suspension Event") that would
make it impractical or unadvisable to cause the Registration Statement or such
filings to become effective or to amend or supplement the Registration
Statement, but such suspension shall continue only for so long as such events or
its effect is continuing but in no event will that suspension exceed ninety (90)
days. 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), during the 15-day period prior to, and during the 60-day period
beginning on, the date of effectiveness of each Company-initiated offering made
pursuant to such Registration Statement, to the extent timely notified in
writing by the Company or the managing underwriters; PROVIDED, HOWEVER, that
such 60-day period shall be extended by the number of days from and including
the date of the giving of any notice pursuant to Section 3(c) or (f) hereof to
and including the date when each seller of Registrable Shares covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 3(f) hereof.
9. BLACK-OUT PERIOD. Following the effectiveness of the Registration
Statement and the filings with any state securities commissions, each Holder
agrees that it will not effect any sales of the Registrable Shares pursuant to
the Registration Statement or any such filings at any time after it 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. Each Holder may recommence effecting
sales of the Shares pursuant to the Registration Statement or such filings
following further notice to such effect from the Company, which notice shall be
given by the Company not later than five (5) days after the conclusion of any
such Suspension Event.
10. ADDITIONAL SHARES. The Company, at its option, may register, under
any registration statement and any filings with any state securities commissions
filed pursuant to this Agreement, any
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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.
The Company and each of the Holders agree that it would not be just and
equitable if contribution 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.
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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(d) 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, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.,
Senior Vice President,
Secretary and General Counsel
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, P.C.
Telecopy: (000) 000-0000
If to the Holders: As listed on the applicable Holder
Signature Page
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 8 and 9 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
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 THAT any Holder may
assign its rights hereunder to any person to whom such Holder may Sell Shares
and/or Units pursuant to Section 2(b) hereof.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate
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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.
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 to 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SUMMIT PROPERTIES INC.
By: /S/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Sr. Vice President
-------------------------------
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Holders:
/s/ Xxxxxx Call
---------------------------------------
Xxxxxx X. Call
whose address is:
8929 Xxxxxxxxxx Xx.
---------------------------------------
Xxxxxxx, XX 00000
---------------------------------------
---------------------------------------
/s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxxx
whose address is:
18549 Vineyard Pt. Ln.
---------------------------------------
Xxxxxxxxxxxx, XX 00000
---------------------------------------
---------------------------------------
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