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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
the ____ day of __________, 1998 by and among Xxxxxxxx Capital Corporation (the
"Company"), Lend Lease Corporation Limited (together with its affiliates, "Lend
Lease") and ERE Yarmouth, Inc. (the "Manager" together with Lend Lease, the
"Holders").
RECITALS
WHEREAS, the Company and a wholly owned indirect subsidiary of Lend
Lease ("Purchaser") have entered into an agreement (the "Purchase Agreement")
pursuant to which the Company has agreed to sell to Purchaser, and Purchaser has
agreed to purchase the number of shares of the Company's Common Stock, par value
$.01 per share ("Common Stock"), equal to (a)10% of the Company's issued and
outstanding Common Stock immediately following consummation of the Company's
initial public offering minus (b) 100 shares.
WHEREAS, the Company and the Manager have entered into an agreement
(the "Management Agreement") pursuant to which the Manager will perform
managerial services for the Company and its subsidiaries;
WHEREAS, the Company has established a stock option plan (the "Plan")
pursuant to which options to acquire shares of Common Stock may be granted, and,
pursuant to a certificate (the "Stock Option Certificate") the Company has
granted options to purchase 1,166,667 shares of Common Stock (the "Options") to
the Manager (or, if necessary, to prevent Lend Lease from exceeding the
Ownership Limitation set forth in the Articles of Incorporation of the Company,
units of limited partnership interest in Xxxxxxxx Partnership, L.P., which units
will be redeemable for shares of Common Stock) over a four-year vesting period.
WHEREAS, neither the shares of Common Stock to be acquired by Lend
Lease nor the shares of Common Stock subject to the Options have been registered
under the Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, from time to time, the Holders may acquire additional shares
of Common Stock;
WHEREAS, the parties hereto desire to set forth certain rights of the
Holders as holders of Common Stock;
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements contained in this Agreement, the parties hereto mutually agree as
follows:
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ARTICLE 1
DEFINITIONS
"Affiliate" means (i) any Person that, directly or indirectly, controls
or is controlled by or is under common control with such Person, (ii) any other
Person that beneficially owns, directly or indirectly, 5% or more of the
outstanding capital stock, shares or equity interests of such Person, or (iii)
any officer, director, employee, partner or trustee of such Person or any Person
controlling, controlled by or under common control with such Person (excluding
trustees and persons serving in similar capacities who are not otherwise
Affiliates of such Person). For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, through the ownership
of voting securities, partnership interests or other equity interests.
"Agreement" means this Registration Rights Agreement, as the same may
be amended, modified, or supplemented from time to time.
"Closing" means the date on which the Company's initial public offering
of Common Stock is consummated.
"Closing Date" means the date on which the Closing occurs.
"Closing Price" means the average of the high bid and low asked prices
in the over-the-counter market, as reported by The Nasdaq Stock Market, or any
national securities exchange on which the Common Stock is listed.
"Code" means the Internal Revenue Code of 1986, as amended, and as
hereafter amended from time to time. Reference to any particular provision of
the Code shall mean that provision of the Code as of the date hereof and any
succeeding provision of the Code.
"Market Price" means, as of any determination date, the average of the
Closing Prices for the five consecutive Trading Days ending on such date.
"Person" means a natural person, a corporation, a partnership, a trust,
a joint venture, any regulatory authority, or any other entity or organization.
"Registrable Shares" means each of the shares of Common Stock which may
be registered pursuant to this Agreement, as defined in Section 2.01.
"SEC" means the United States Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration" shall mean the registration of the shares owned by
the Holders effected pursuant to Section 2.01 hereof.
"Shelf Registration Period" shall mean the period of time the Company
is required to make and maintain the Shelf Registration as defined in Section
2.01 hereof.
"Trading Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Underwritten Offering" means a sale of securities of the Company to an
underwriter or underwriters pursuant to a Registration Statement for reoffering
to the public.
ARTICLE 2
SHELF REGISTRATION
SECTION 2.01. Shelf Registration. If the Manager ceases to act as
manager of the Company pursuant to the Management Agreement dated as of
_________, 1998, then, upon the request of either Holder, the Company agrees to
file with the SEC, no later than thirty days after the request, a shelf
registration statement under Rule 415 of the Securities Act, or similar rule
that may be adopted by the SEC (a "Shelf Registration") with respect to all
shares of Common Stock beneficially owned by the Holders (the "Registrable
Shares") (or, if so requested by the Holders, a specified portion of such
shares). The Company will use commercially reasonable efforts to have such Shelf
Registration declared effective under the Securities Act as soon as practicable.
The Holders shall notify the Company of the method or methods of disposition
that may be utilized by them in disposing of such shares and such information
shall be included in the prospectus included in such Shelf Registration to the
extent such methods are permitted by applicable law.
The Company will use its best efforts to keep the Shelf Registration
continuously effective until the date when all of the shares of Common Stock
covered thereby are sold thereunder (the "Shelf Registration Period").
SECTION 2.02. Suspension. If the Company shall furnish to the Holders a
certificate signed by the President or Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its shareholders for such
Shelf Registration Statement to be filed at such time, then the Company shall
have the right to defer the filing of the Shelf Registration Statement for a
period of not more than 120 days after receipt of the request from the Holders
under this Article 2.
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ARTICLE 3
OTHER REGISTRATIONS
SECTION 3.01. Piggyback Registration.
(a) If at any time on or after the date that is two (2) years
after the Closing, the Company shall propose the registration under the
Securities Act of a public offering of Common Stock, the Company shall give
written notice of such proposed registration as promptly as practicable to the
Holders, and if, within seven (7) days after the giving of such notice, the
Holders request the Company in writing to include any shares of Common Stock
that are owned by the Holders and that have not previously been registered under
a Shelf Registration declared effective by the SEC, the Company shall include in
the registration such amount of such shares of Common Stock as the Holders shall
request; provided, however, that the Company shall not be required to give
notice or include such shares in any such registration if the proposed
registration relates solely to (i) securities to be offered to employees
pursuant to a stock option, stock savings, or other employee benefit plan, (ii)
securities proposed to be issued in exchange for securities or assets of, or in
connection with a merger of consolidation with, another entity, (iii) securities
to be offered by the Company generally to any class or series of its then
existing security holders, (iv) securities issuable upon the conversion of
securities which are the subject of an underwritten redemption, or (v)
securities to be offered or issued pursuant to a combination of transactions
referred to in clauses (i) through (iv).
(b) The Company shall have the right, in its sole discretion to
terminate or withdraw any registration initiated by its under this Article 3
prior to the effectiveness of such registration whether or not the Holders have
elected to include shares in such registration.
(c) If a registration statement under which the Company gives
notice under this Article 3 is for an Underwritten Offering, then the Company
shall so advise the Holders. In such event, the right of the Holders to include
their shares in a registration pursuant to this Article 3 shall be conditioned
upon such entity's participation in such underwriting and the inclusion of such
entity's shares in the underwriting to the extent provided herein. All entities
proposing to distribute their Registrable Shares through such underwriting shall
enter into an underwriting agreement in customary form with the underwriter(s)
selected from such underwriting. Notwithstanding any other provision of this
Agreement, if the managing underwriter(s) determine(s) in good faith that
marketing factors require a limitation of the number of shares to be
underwritten, then the managing underwriter(s) may exclude shares (including
Registrable Shares) from the registration and the underwriting, and the number
of shares that may be included in the registration and the underwriting shall be
allocated, first, to the Company, and second, to each of the holders (including
the Holders) requesting inclusion of their shares in such registration statement
on a pro rata basis based on the total number of shares then held by each such
holder provided, however, that the right of the underwriters to exclude shares
(including Registrable Shares) from the registration and all shares that are not
Registrable Shares and that are held by persons who are officers or directors of
the Company (or any subsidiary of the Company) shall first be excluded from such
registration and underwriting
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before any Registrable Shares are so excluded and, further provided, that
pursuant to the Registration Rights Agreement between the Company and FBR Asset
Investment Corporation ("FBR"), shares of FBR included in the registration shall
not be reduced below 25% of the shares that FBR requested to be included in the
registration. If the Holders disapprove of the terms of any such underwriting,
such entity may elect to withdraw therefrom by written notice to the Company and
the managing underwriter(s), delivered at least ten (10) business days prior to
the effective date of the registration statement. Any Registrable Shares
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration. For any Holder that is a partnership or corporation, the
partners, retired partners and shareholders of such Holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "Holder,"
and any pro rata reduction with respect to such "Holder" shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such "Holder," as defined in this sentence.
(d) By electing to include Registrable Shares in any registration
pursuant to Article 3 hereof, the Holders shall be deemed to have agreed not to
effect any public sale or distribution of securities of the Company of the same
or similar class or classes of the securities included in the Registration
Statement or any securities convertible into or exchangeable or exercisable for
such securities, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act, during such periods as reasonably requested by the managing
underwriter(s), if an Underwritten Offering, or the Company, in any other
registration. Any period up to 180 days shall be deemed reasonable.
ARTICLE 4
OTHER MATTERS
SECTION 4.01. Registration Procedures. In connection with the
obligations of the Company with respect to any registration pursuant to this
Agreement, the Company shall use commercially reasonable efforts to effect or
cause to be effected the registration of the Registrable Shares under the
Securities Act to permit the sale of such Registrable Shares by the Holders in
accordance with the Holders' intended method or methods of distribution, and the
Company shall:
(a) subject to Section 4.01(h) hereof, prepare and file with the
SEC such amendments and post-effective amendments to each such Registration
Statement as may be necessary to keep such Registration Statement effective for
the applicable period; cause each such Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 or any similar rule that may be adopted under the Securities Act; and
comply with the provisions of the Securities Act applicable to the Company with
respect to such Registration Statement during the applicable period;
(b) furnish to the Holder of Registrable Shares without charge as
many copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and
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such other documents as such Holder may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable Shares;
(c) use commercially reasonable efforts to register or qualify, or
obtain an exemption from registration or qualification for, all Registrable
Shares by the time the applicable Registration Statement is declared effective
by the Commission under all applicable state securities or "blue sky" laws of
such jurisdictions as the Holders of Registrable Shares covered by a
Registration Statement shall reasonably request in writing, keep each such
registration or qualification or exemption effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in each such jurisdiction of such
Registrable Shares owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this Section 4.01(c), (ii)
subject itself to taxation in any such jurisdiction, or (iii) submit to the
general service of process in any such jurisdiction; provided, further, that if
the Company fails to list the Registrable Shares on a national stock exchange or
qualify for quotation on an automatic quotation system at or prior to the time
the Registration Statement is declared effective by the SEC because it fails to
meet requirements for such listing or quotation regarding the number of holders,
the obligation in this Section 4.01(c) shall not require the Company to register
or qualify the Registrable Shares in any jurisdiction where the Company
reasonably concludes, based upon the advice of securities counsel, that such
registration or qualification would require unreasonable effort (including,
without limitation, amendments to the Company's charter or bylaws) or expense;
(d) notify the Holder of Registrable Shares promptly and, if
requested by such Holder, confirm such advice in writing (i) when a Registration
Statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
and (iii) of the happening of any event during the period a Registration
Statement is effective as a result of which such Registration Statement or the
related Prospectus contains any 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 not misleading, and (iv) at the written request of any such
Holder, promptly to furnish to such 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 purchaser of such securities, 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
not misleading;
(e) upon written request by the Holder, furnish to the Holder of
Registrable Shares copies of any request by the SEC or any state securities
authority of amendments or supplements to a Registration Statement and
Prospectus or for additional information;
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(f) make every reasonable effort to avoid the issuance of, or if
issued to obtain the withdrawal of, any enjoining order suspending the use or
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
Shares for sale in any jurisdiction, at the earliest possible moment;
(g) upon written request furnish to the Holder of Registrable
Shares, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) upon the occurrence of any event contemplated by Section
4.01(d)(iii) hereof, use commercially reasonable efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Shares, such Prospectus will not contain any 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 the light of the circumstances
under which they were made, not misleading;
(i) if requested by the representative underwriters, if any, or
any Holders of Registrable Shares being sold in connection with such offering,
(i) promptly incorporate in a prospectus supplement or post-effective amendment
such information as the representative of the underwriters, if any, or such
Holders indicate relates to them or otherwise reasonably request be included
therein, and (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the Company
shall not be required to take any action pursuant to this Section 4.01 that
would, in the opinion of counsel for the Company, violate applicable law;
(j) make available to inspection by representatives of the Holder
of the Registrable Shares and the representative of any underwriters
participating in any disposition pursuant to a Registration Statement and any
special counsel or accountant retained by such Holders or underwriters, all
financial and other records, pertinent corporate documents and properties of the
Company and cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such
representatives, the representative of the underwriters, the special counsel or
accountants in connection with a Registration Statement; provided, however, that
such records, documents or information that the Company determines, in good
faith, to be confidential and notifies such representatives, representative of
the underwriters, special counsel or accountants are confidential shall not be
disclosed by the representatives, representative of the underwriters, special
counsel or accountants unless (i) the disclosure of such records, documents or
information is necessary to avoid or correct a misstatement or omission in a
Registration Statement, (ii) the release of such records, documents or
information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) such records, documents or information have
been generally made available to the public;
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(k) use commercially reasonable efforts (including, without
limitation, seeking to cure any deficiencies (within the Company's control)
cited by the exchange or market in the Company's listing application) to list
all Registrable Shares on the American Stock Exchange or The Nasdaq National
Market (or the Nasdaq Small Cap Market) if not qualified for the Nasdaq National
Market (unless the Company qualifies and chooses to list all Registrable Shares
on the New York Stock Exchange, in which event the Company shall use its best
efforts to list all Registrable Shares on the New York Stock Exchange);
(l) otherwise use commercially reasonable efforts to comply with
all applicable rules and regulations of the SEC and make generally available to
its security holders, as soon as reasonably practicable, earnings statements
covering at least 12 months that satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 (or any similar rule promulgated under the
Securities Act) thereunder;
(m) provide and cause to be maintained a transfer agent for all
Registrable Shares covered by any Registration Statement from and after a date
not later than the effective date of such Registration Statement; and
(n) in connection with any sale or transfer of the Registrable
Shares that will result in such securities no longer being the Registrable
Shares, cooperate with the Holders and the representative of the underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing the Registrable Shares to be sold, which certificates shall not
bear any restrictive legends and to enable such Registrable Shares to be in such
denominations and registered in such names as the representative of the
underwriters, if any, or Holders may request at least two Business Days prior to
any sale of the Registrable Shares.
In addition, the Company may require the Holder of Registrable Shares
to furnish to the Company such information regarding the proposed distribution
by such Holder of such Registrable Shares as the Company may from time to time
reasonably request in writing or as shall be required to effect the registration
of their Registrable Shares.
The Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4.01(d)(iii) hereof,
such Holder will immediately discontinue disposition of Registrable Shares
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus. If so directed by the Company, such
Holder will deliver to the Company (at the expense of the Company) all copies in
its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Shares current at the
time of receipt of such notice.
SECTION 4.02. Black-Out Period. (a) Following the effectiveness of a
Registration Statement (and the filings with any state securities commissions),
the Company may direct the Holder to suspend sales of the Registrable Shares for
such times as the Company reasonably may determine are necessary and advisable,
including upon the occurrence of the following events: (i)
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an Underwritten Offering by the Company where the Company is advised by the
managing underwriter(s) for such Underwritten Offering that sale of Registrable
Shares under the Registration Statement would have a material adverse effect on
the offering, or (ii) pending negotiations relating to, or consummation of, a
transaction or the occurrence of an event (x) that would require additional
disclosure of material information by the Company in the Registration Statement
(or such filings), (y) as to which the Company has a bona fide business purpose
for preserving confidentiality, or (z) that renders the Company unable to comply
with SEC requirements, in each case under circumstances that would make it
impractical or inadvisable to cause the Registration Statement (or such filings)
to become effective or to promptly amend or supplement the Registration
Statement on a post-effective basis, as applicable (a "Suspension Event").
(b) In the case of a Suspension Event, the Company shall give
written notice (a "Suspension Notice") to the Holders to suspend sales of the
Registrable Shares so that the Company may correct or update the Registration
Statement (or such filings); provided, however, that such suspension shall
continue only for so long as the Suspension Even or its effect is continuing. No
Holder shall effect any sales of the Registrable Shares pursuant to such
Registration Statement (or such filings) at any time after it has received a
Suspension Notice from the Company. If so directed by the Company, the Holders
will deliver to the Company all copies of the Prospectus covering the
Registrable Shares held by them at the time of receipt of the Suspension Notice.
The Holders may recommence effecting sales of the Registration Shares pursuant
to the Registration Statement (or such filings) following further notice to such
effect (an "End of Suspension Notice") from the Company, which End of Suspension
Notice shall be given by the Company promptly following the conclusion of any
Suspension Event.
SECTION 4.03. Conditions to Obligations of the Company. The obligations
of the Company to use its best efforts to cause the shares owned by the Holders
to be registered under the Securities Act are subject to the following
conditions:
(a) Any request by the Holders for registration shall specify the
amount of shares intended to be sold, contain the undertaking of such Holder, to
provide all such information as may be reasonably required in order to permit
the Company to comply with all applicable requirements of the SEC and to obtain
acceleration of the effective date of the registration statement, identify any
proposed underwriters, and specify the proposed method of offering and sale.
(b) The Company may require, as a condition to fulfilling its
obligations hereunder, the indemnification agreements described in Article 5
from the Holders, and their underwriters.
(c) The Company shall not be required to register shares pursuant
to Section 2.01 if, within ten (10) calendar days following receipt of the
request for registration, the Company shall provide written notice that it
intends to repurchase the shares at the Market Price of such shares as of the
date the Company received such request.
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SECTION 4.04. Expenses of Registration. The Company shall pay all
expenses in connection with the Shelf Registration, including, without
limitation (a) all expenses incident to filing with the National Association of
Securities Dealers, Inc., (b) registration fees, (c) printing expenses, (d)
accounting and legal fees and expenses, except to the extent the Holders elect
to engage accountants or attorneys in addition to the accountants and attorneys
engaged by the Company, (e) accounting expenses incident to or required by any
such registration or qualification, and (f) expenses of complying with the
securities or blue sky laws of any jurisdictions in connection with such
registration or qualifications; provided, however, the Company shall not be
liable for (i) any underwriting discounts or commissions to any broker
attributable to the sale of the Holders' shares, or (ii) any fees or expenses
incurred by the Holders in connection with such registration which, according to
the written instructions of any regulatory authority, the Company is not
permitted to pay.
ARTICLE 5
INDEMNIFICATION
SECTION 5.01. Indemnification by the Company. In the case of each
registration pursuant to Article 2 or 3 hereof, the Company agrees to indemnify
and hold harmless the Holders and the directors and officers of the Holders,
each underwriter of the shares of the Holders so registered, and each person (if
any) who controls the Holders or any such underwriter within the meaning of
Section 15 of the Securities Act, against any and all losses, claims, damages,
or liabilities to which they or any of them may become subject under the
Securities Act or any other statute or common law, including any amount paid in
settlement of any litigation, commenced or threatened, if such settlement is
effected with the written consent of the Company, and to reimburse them for any
legal or other expenses incurred by them in connection with investigating any
claims and defending any actions, insofar as any such losses, claims, damages,
liabilities, or actions arise out of or are based upon (a) any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement filed to register the sale of such shares or any post-effective
amendment thereto or in any filing made in connection with the qualification of
the offering under blue sky or other securities laws of jurisdictions in which
the shares are offered (a "Blue Sky Filing"), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or (b) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, if used prior to the effective date of such registration statement,
or contained in the final prospectus (as amended or supplemented if the Company
shall have filed with the SEC any amendment thereof or supplement thereto) if
used within the period during which the Company is required to keep the
registration statement to which such prospectus relates current, or the omission
or alleged omission to state therein (if so used) a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the indemnification
agreement contained in this Section 5.01 shall not (i) apply to such losses,
claims, damages, liabilities, or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such omission or alleged
omission,
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if such statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by the Holders or such underwriter
specifically for use in connection with preparation of the registration
statement, any preliminary prospectus or final prospectus contained in the
registration statement, any such amendment or supplement thereto or any Blue Sky
Filing, or (ii) inure to the benefit of any underwriter or any person
controlling such underwriter, if such underwriter failed to send or give a copy
of the final prospectus to the person asserting the claim at or prior to the
written confirmation of the sale of such shares to such person and if the untrue
statement or omission concerned has been corrected in such final prospectus.
SECTION 5.02. Indemnification by the Holders. In the case of each
registration pursuant hereto, the Holders and each underwriter of the shares of
the Holders so registered shall agree in the same manner and to the same extent
as set forth in Section 5.01 hereof to indemnify and hold harmless the Company,
each person (if any) who controls the Company within the meaning of Section 15
of the Securities Act, the directors of the Company, and those officers of the
Company who shall have signed any such registration statement, with respect to
any untrue statement or alleged untrue statement in, or omission or alleged
omission from, such registration statement or any post-effective amendment
thereto or any preliminary prospectus or final prospectus (as amended or
supplemented if amended or supplemented as aforesaid) contained in such
registration statement or any Blue Sky Filing, if such statement or omission was
made in reliance upon and in conformity with written information furnished to
the Company by such indemnifying party specifically for use in accordance with
the preparation of the registration statement, any preliminary prospectus or
final prospectus contained in the registration statement, any such amendment or
supplement thereto, or any Blue Sky Filing.
SECTION 5.03. Indemnification Procedures.
(a) Each indemnified party shall, with reasonable promptness after
its receipt of written notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained herein, notify
the indemnifying party in writing of the commencement thereof.
(b) The omission to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party unless
the failure to give notice materially adversely affects the ability of the
indemnifying party to defend a claim which is the subject of indemnification
hereunder (in which case the indemnifying party shall be relieved of its
obligation only to the extent of offsetting any loss, damage, or liability it
suffers as a consequence of the failure against its monetary obligation to the
indemnified party).
(c) In case any such action shall be brought against any
indemnified party and the indemnified party shall so notify an indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and to the extent it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party and, after notice from
the indemnifying party to
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such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party hereunder for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation, except as provided below.
(d) The indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel (other than reasonable costs of investigation)
shall be paid by the indemnified party unless (i) the indemnifying party agrees
to pay the same, (ii) the indemnifying party fails to assume the defense of such
action with counsel reasonably satisfactory to the indemnified party, or (iii)
the named parties to any such action (including any impleaded parties) have been
advised by such counsel that representation of such indemnified party and the
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party). No indemnifying party shall be liable for any settlement
entered into without its consent.
(e) The indemnity agreements contained herein shall be in addition
to any liabilities which the indemnifying party may have pursuant to law.
SECTION 5.04. Contribution.
(a) If for any reason the indemnification provisions contemplated
herein are either unavailable or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, or liabilities referred to
therein, then the party that otherwise would be required to provide
indemnification or the indemnifying party (in either case, for purposes of this
section, the "Indemnifying Party") in respect of such losses, claims, damages,
or liabilities, shall contribute to the amount paid or payable by the party that
would otherwise be entitled to indemnification or the indemnified party (in
either case, for purposes of this section, the "Indemnified Party") as a result
of such losses, claims, damages, liabilities, or expense, in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Party, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact related to information supplied by the Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities, and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party. In no
event shall any holder of shares covered by the registration be required to
contribute an amount greater than the dollar amount of the proceeds received by
such holder from the sale of shares pursuant to the registration giving rise to
the liability.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this section were determined by pro rata
allocation (even if the holders or any
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underwriters or all of them were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No person or
entity determined to have committed a fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
ARTICLE 6
GENERAL
SECTION 6.01. Notices. All communications required or permitted under
this Agreement shall be in writing and shall be deemed to have been given when
delivered personally or upon deposit in the United States mail, registered,
postage prepaid return receipt requested, to Lend Lease and the Manager at 0000
Xxxxxxxxx Xxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx (Attention: Xxxxxx X.
Xxxxxxx); provided, however, that Lend Lease or the Manager may specify a
different address by notifying the Company in writing of such different address.
Notices to the Company shall be delivered at or mailed to 0000 Xxxxxxxxx Xxxx,
X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx (Attention: Xxxxxx X. Xxxxxxx), or such
different address as the Company may notify Lend Lease and the Manager in
writing.
SECTION 6.02. Entire Agreement. This Agreement and exhibits attached
hereto constitute the entire agreement of the parties and supersede all prior
written agreements and prior and contemporaneous oral agreements, understandings
and negotiations with respect to the subject matter hereof.
SECTION 6.03. Pronouns and Plurals. When the context in which words are
used in this Agreement indicates that such is the intent, words in the singular
number shall include the plural and the masculine gender shall include the
neuter or female gender as the context may require.
SECTION 6.04. Headings. The article headings or sections in this
Agreement are for convenience only and shall not be used in construing the scope
of this Agreement or any particular article.
SECTION 6.05. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original copy and all of
which together shall constitute one and the same instrument binding on all
parties hereto, notwithstanding that all parties shall not have signed the same
counterpart.
SECTION 6.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, each party hereto, through its officer thereunto
duly authorized, has duly executed this Agreement as of the day and year first
above written.
XXXXXXXX CAPITAL CORPORATION
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Name:
Title:
LEND LEASE CORPORATION LIMITED
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Name:
Title:
ERE YARMOUTH, INC
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Name:
Title:
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