Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of January 1, 2002 by and among (i) VORNADO REALTY TRUST, a
Maryland real estate investment trust (the "Company"), and (ii) each of the
persons identified on Schedule A hereto (each a "Holder" and collectively,
together with their assigns permitted under Section 5.3 hereof, the "Holders").
WHEREAS, the Company and Xxxxxxx X. Xxxxx Commercial Realty L.L.C., a
Delaware limited liability company and the sole general partner of Xxxxxxx X.
Xxxxx Commercial Realty L.P., a Delaware limited partnership ("SCR"), are
causing an indirect wholly-owned subsidiary of Vornado Realty L.P., a Delaware
limited partnership (the "Partnership") to merge (the "Merger") with and into
SCR and, in connection therewith, the Partnership is issuing 6,094,255 Class A
Units (such units, the "VNOP Units") to the Holders as set forth opposite their
names on Schedule A hereto;
WHEREAS, pursuant to Section 8.6 and the other related provisions of
the Second Amended and Restated Agreement of Limited Partnership of the
Partnership (such agreement, as amended from time to time, the "Partnership
Agreement"), commencing on the first anniversary of the date of issuance, and
subject to the various limitations contained in the Partnership Agreement and
other instruments being delivered in connection with the Merger, the Holders
will be entitled to redeem their VNOP Units for cash or, at the Company's
election, common shares of beneficial interest, par value $0.04 per share, of
the Company ("Common Shares" and such redemption right, the "Redemption Right");
WHEREAS, the Company has agreed to grant to the Holders the
registration rights described herein with respect to certain of the Common
Shares, if any, issuable in respect of the VNOP Units;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, hereby agree as
follows:
SECTION 1. REGISTRATION RIGHTS
1.1 Shelf Registration Right. (a) Subject to the various terms,
conditions and other limitations set forth in this Agreement, the Company hereby
grants the Holders the right (the "Registration Right") to require the Company
to register for resale by the Holders all Registrable Shares (as defined below)
then held by them, together with all Registrable Shares that would then be
issuable in respect of VNOP Units (assuming, for this purpose, that all Holders
exercised their Redemption Rights in respect of those VNOP Units and that the
Company elected to satisfy the rights by issuing and
delivering Common Shares to the Holders) as more fully set forth in the
remainder of this Agreement. The Registration Right shall only be exercisable by
the Holder Representative (as defined below) delivering a written request (the
"Registration Request") identifying in reasonable detail the maximum aggregate
number of Registrable Shares then issued and issuable to all Holders (assuming
each were to exercise its Redemption Right in respect of all VNOP Units then
owned by it, and the Company were to elect to satisfy all such redemption
requests with Common Shares) as well as the proposed method(s) and timing of
resale and the number of Registrable Shares anticipated to be sold by the
Holders in the next succeeding twelve (12) months. The Holder Representative may
only deliver the Registration Request on or after the later of (x) the Business
Day (as defined below) following the third anniversary of the date of this
Agreement and (y) the date on which a Holder first delivers a notice of
redemption substantially in the form of Exhibit D attached to the Partnership
Agreement to the Partnership in respect of any of the VNOP Units held by it. In
addition, the Holder Representative must deliver the Registration Request to the
Company at least sixty (60) days prior to the date on which the related Holder
desires to consummate the first sale of any Registrable Shares to be registered
therein. A Resale Shelf Registration Statement (as defined below) may also
include securities to be sold for the account of the Company or for other
persons holding securities of the Company. Notwithstanding the foregoing, the
Company may at any time, in its sole discretion and prior to receiving any
Registration Request from the Holder Representative, include all of such
Holder's Registrable Shares or any portion thereof in any shelf registration
statement then being filed by the Company for any other purpose, and if the
Registrable Shares are so registered and the registration statement complies in
all material respects with the requirements of this Agreement applicable to a
Resale Shelf Registration Statement, the same shall be deemed to satisfy the
requirements of this Section 1.1(a) and to be the Resale Shelf Registration
Statement contemplated herein.
(b) As used in this Agreement:
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday other than a day on which banks and other financial
institutions are authorized or required to be closed for business in
the State of New York or Maryland.
"Holder Representative" means Xxxxxxx X. Xxxxx Management, Inc.,
acting as the appointed representative of the Holders in respect of
the rights contained herein, or such other representative as is
appointed from time to time and identified to the Company in a writing
signed by Holders of a majority of the Registrable Shares at any such
time.
-2-
"Registrable Shares" means all Common Shares issued or issuable upon
redemption of VNOP Units held by the Holders (assuming the Company
will elect to deliver Common Shares in satisfaction of the Redemption
Right), but excluding any such Common Shares that (i) may be sold by
the relevant Holder without volume restrictions pursuant to Rule
144(k) under the Securities Act of 1933, as amended (the "Act") or any
successor provision then in force or, if the Holder owns less than 1%
of the outstanding Common Shares of the Company (determined assuming
redemption of all VNOP Units held by such Holder), pursuant to Rule
144(e) under the Act or any successor provision then in force, (ii)
are held by, or upon redemption would be issuable to, a Holder that is
not an "affiliate" (as defined in Rule 144(a) under the Act) of the
Company, (iii) have been disposed of pursuant to any offering or sale
in accordance with the Resale Shelf Registration Statement, or have
been sold pursuant to Rule 144 or Rule 145 (or any successor
provisions) under the Act or in any other transaction in which the
purchaser does not receive "restricted securities" (as that term is
defined for purposes of Rule 144 under the Act), (iv) have been
transferred to a transferee that has not agreed in writing and for the
benefit of the Company to be bound by the terms and conditions of this
Agreement, or (v) have ceased to be of a class of securities of the
Company that is listed and traded on a national securities exchange or
the National Market of the National Association of Securities Dealers,
Inc. Automated Quotation System (or any successor or other national
trading system).
"Resale Shelf Registration Statement" means the shelf registration
statement of the Company as required herein, which covers the resale
by the Holders of the Registrable Shares, including the prospectus
contained therein, all exhibits thereto and all documents incorporated
therein by reference.
1.2 Underwritten Offerings. (a) If any Holder proposes to offer or sell
any Registrable Shares pursuant to an underwritten offering, it shall cause the
Holder Representative to notify the Company of such intention at least
forty-five (45) days prior to the proposed commencement of that offering and the
Company shall have the right to select the lead managing underwriter and any
other underwriters that will participate in such public offering (each
underwriter so selected by the Company, an "Underwriter"). The Company agrees
that it will notify the Holder Representative of its selection of the
Underwriter(s) promptly and in any case within ten (10) Business Days after
receipt of a written request from the Holder Representative that it do so.
-3-
(b) If any Holder proposes to offer or sell Registrable Shares pursuant
to an underwritten offering, the offering size shall be such that the aggregate
total gross proceeds to all Holders from that offering or sale shall be (x)
equal to or greater than Twenty-Five Million Dollars ($25,000,000.00) and (y)
equal to or less than Two Hundred Million Dollars ($200,000,000.00), and the
Holders shall not be permitted to conduct, individually or collectively, more
than one underwritten offering or sale in any one hundred and eighty (180) day
period; provided, however, that any underwritten offering that is suspended by
the Company pursuant to Section 1.6 hereof shall not be counted as an
underwritten offering for purposes of the preceding clause unless the offering
is concluded following the termination of such suspension.
1.3 Obligations of the Company. When the Company receives the
Registration Request in accordance with Section 1.1 above, then, subject to
Section 1.6 hereof, the Company shall:
(a) prepare and file with the Securities and Exchange Commission (the
"Commission") the Resale Shelf Registration Statement (as soon as reasonably
practicable after receiving the Registration Request, and in any event within
sixty (60) days after receipt of the Registration Request) in accordance with
Rule 415 under the Act (or any successor or other rule of the Commission
applicable to the proposed sale) to register Registrable Shares pursuant to the
Act, which shall comply as to form in all material respects with the
requirements of the applicable form and shall include all financial statements
required by the Commission to be filed therewith, and the Company shall use its
commercially reasonable efforts to cause the Resale Shelf Registration Statement
to become effective as soon as practicable; provided that all of the Company's
obligations with respect to the Resale Shelf Registration Statement pursuant to
this Agreement will automatically terminate if none of the Common Shares covered
by that Resale Shelf Registration Statement are Registrable Shares; provided,
however, that, before filing the Resale Shelf Registration Statement or any
amendments or supplements thereto, or comparable statements under applicable
securities or "blue sky" laws of any jurisdiction, the Company shall (i) provide
each Holder with an adequate and appropriate opportunity to participate in the
preparation of the Resale Shelf Registration Statement and each prospectus
included therein (and each amendment or supplement thereto or comparable
statement) to be filed with the Commission and (ii) not file the Resale Shelf
Registration Statement or the related prospectus (or amendment or supplement
thereto or comparable statement) with the Commission to which the Holder
Representative shall have reasonably objected on the grounds that such filing
does not comply in all material respects with the requirements of the Act or of
the rules or regulations thereunder;
(b) use its commercially reasonable efforts to keep the Resale Shelf
Registration Statement effective, including preparing and filing with the
Commission
-4-
such amendments and supplements to the Resale Shelf Registration Statement and
the prospectus to be used in connection therewith as may be necessary to keep
the Resale Shelf Registration Statement effective and to comply with the
provisions of the Act with respect to the disposition of the Registrable Shares
covered by the Resale Shelf Registration Statement, until the earlier of (i) the
date on which the Holders have disposed of all of the Registrable Shares
registered under the Resale Shelf Registration Statement and (ii) the date on
which there are no longer any Registrable Shares outstanding or issuable in
respect of any VNOP Units;
(c) furnish, without charge, to the Holders and each Underwriter, if
any, of the securities covered by the Resale Shelf Registration Statement, such
number of copies of the Resale Shelf Registration Statement, each amendment and
supplement thereto (in each case including all exhibits), and the prospectus
included in the Resale Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus) in conformity with the requirements of
the Act, as the Holder Representative may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the Holders;
(d) promptly notify the Holder Representative and the sole or lead
managing Underwriter, if any: (i) when the Resale Shelf Registration Statement,
any pre-effective amendment, the prospectus or any prospectus supplement
related thereto or post-effective amendment to the Resale Shelf Registration
Statement has been filed, and, with respect to the Resale Shelf Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the Commission or any state securities or "blue sky"
authority for amendments or supplements to the Resale Shelf Registration
Statement or the prospectus related thereto or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Resale Shelf Registration Statement or the initiation or threat of any
proceedings for that purpose, and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Shares for sale under the securities or "blue sky" laws of any
jurisdiction or the initiation of any proceeding for such purpose;
(e) upon receipt of a Proposed Sale Notice (as defined in Section
1.4(a) hereof) and thereafter until the completion, abandonment or termination
of the offering or sale contemplated thereby, promptly notify the Holder
Representative and the sole or lead managing Underwriter, if any: (i) of the
existence of any fact of which the Company is aware or the happening of any
event that has resulted in (A) the Resale Shelf Registration Statement, as then
in effect, containing an untrue statement of a material fact or omitting to
state a material fact required to be stated therein or necessary to make any
statements therein not misleading or (B) the prospectus included in the Resale
Shelf Registration Statement containing an untrue statement of a material fact
or omitting to state a material fact required to be stated therein or necessary
to make any statements therein, in the light
-5-
of the circumstances under which they were made, not misleading and (ii) of the
Company's reasonable determination that a post-effective amendment to the Resale
Shelf Registration Statement would be appropriate or that there exist
circumstances not yet disclosed to the public which make further sales under the
Resale Shelf Registration Statement inadvisable pending such disclosure and
post-effective amendment; and, if the notification relates to an event described
in either of the clauses (i) or (ii) of this Section 1.3(e), subject to Section
1.6, at the request of the Holder Representative, the Company shall prepare and
furnish to the Holder Representative and each Underwriter, if any, a reasonable
number of copies of a supplement or post-effective amendment to the Resale Shelf
Registration Statement or related prospectus or any document incorporated
therein by reference or file any other required document so that (1) the Resale
Shelf Registration Statement shall 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 not misleading and (2) as thereafter
delivered to the purchasers of the Registrable Shares being sold thereunder, the
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 the light of the circumstances under which they were
made, not misleading;
(f) make available for reasonable inspection by the Holders, any
Underwriter, and any attorney, accountant or other agent retained by any Holder
or Underwriter, material financial and other relevant information concerning the
business and operations of the Company and the properties of the Company and any
subsidiaries thereof as may be in existence at such time as shall be necessary,
and cause the Company's officers, directors and employees to supply such
relevant information as may be reasonably requested by any such parties in
connection with the Resale Shelf Registration Statement; provided, however,
that, if the Holders or any Underwriter or any of their advisors or agents
request any information that the Company determines to be confidential or
non-public, the Company shall be entitled to condition access to that
information upon the Holders and each other recipient of such information having
entered into a confidentiality agreement with the Company in form and substance
satisfactory to the Company acting reasonably, pursuant to which each such
recipient agrees to maintain that information as confidential and use it solely
for the purpose of exercising its rights under this Agreement, and provided
further, that the Company shall not be required to disclose any information
subject to any attorney-client or attorney work product privilege if and to the
extent such disclosure would constitute a waiver of such privilege;
(g) in the case of an underwritten public offering of Registrable
Shares covered by the Resale Shelf Registration Statement, obtain an opinion
from the Company's counsel and a "cold comfort" letter from the Company's
independent public accountants who have certified the Company's financial
statements included or incorporated by reference in such Resale Shelf
Registration Statement in customary form
-6-
and covering such matters as are customarily covered by such opinions and "cold
comfort" letters delivered to underwriters in underwritten public offerings,
dated the date of the closing under the underwriting agreement, which opinion
and letter shall be reasonably satisfactory to the sole or lead managing
Underwriter, if any, and to the Holders participating in the offering, and
furnish to the Holders and to each Underwriter, if any, a copy of such opinion
and letter addressed to the Holders (in the case of the opinion) and the
underwriter(s) (in the case of the opinion and the "cold comfort" letter);
(h) in the case of an underwritten public offering, make generally
available to its security holders as soon as practicable, but in any event not
later than eighteen (18) months after the effective date of the Resale Shelf
Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule 158 under
the Act);
(i) use commercially reasonable efforts to cause all Registrable Shares
to be listed on the national securities exchange or over-the-counter exchange on
which the Common Shares are then listed, if the listing of Registrable Shares is
then permitted under the rules of such exchange;
(j) if requested by the Holder Representative or the sole or lead
managing Underwriter, incorporate in a prospectus supplement or post-effective
amendment such information concerning any Holder, any Underwriter or the
intended method of distribution as the sole or lead managing Underwriter or the
Holder Representative reasonably requests to be included therein and as is
appropriate in the reasonable judgment of the Company, including, without
limitation, information with respect to the number of Registrable Shares being
sold to the Underwriters, the purchase price being paid therefor by such
Underwriters and any other material terms of the underwritten offering of the
Registrable Shares to be sold in such offering; provided, however, that the
Company shall not be obligated to include in any such prospectus supplement or
post-effective amendment any requested information that is unreasonable in scope
when compared with the Company's most recent prospectus or prospectus supplement
used in connection with a primary or secondary offering of equity securities by
the Company; and
(k) subject to Section 1.6 hereof, use commercially reasonable efforts
to take such other steps as may reasonably be requested of it to facilitate the
registration and disposition of the Registrable Shares contemplated hereby,
including obtaining necessary governmental approvals and effecting required
filings; entering into customary agreements (including customary underwriting
agreements, if the public offering is underwritten); cooperating with the
Holders and any Underwriter in connection with any
-7-
filings required by the National Association of Securities Dealers, Inc.
("NASD"); providing appropriate certificates not bearing restrictive legends
(other than legends relating to restrictions imposed in the Company's charter or
by applicable law) representing the Registrable Shares; and providing a CUSIP
number and maintaining a transfer agent and registrar for the Registrable
Shares; provided, however, that nothing in this Agreement shall be interpreted
as requiring the Company's management to attend or participate in any road show,
any meetings with prospective investors or any other similar marketing or
selling activities, or to take any of the actions described in the proviso to
Section 1.7 below.
1.4 Holder Obligations.
(a) No Holder, underwriter, if any, or other person or entity acting
for any of them shall commence any offering or consummate any sale of any
Registrable Shares included in the Resale Shelf Registration Statement requiring
delivery of a prospectus unless the Holder Representative has given the Company
at least five (5) and not more than sixty (60) days' prior written notice (a
"Proposed Sale Notice") of the intention to do so specifying (i) the Holders
proposing to participate in the offering and the number of Registrable Shares to
be offered and sold by each Holder and (ii) the intended method or methods of
distribution of such Registrable Shares, and the Holders shall terminate any
such offering that is not consummated within forty-five (45) days of its
commencement (it being understood that any offering terminated pursuant to this
clause shall be deemed to have been consummated for purposes of Section 1.2(b)
above, and it being further understood that the forty-five (45) day period shall
be deemed extended one day for each day that the Company suspends the offering
pursuant to its rights in Section 1.6 hereof). The Holder Representative shall
give the Company prompt written notice of the completion, termination or
abandonment of any sale or offering of Registrable Shares.
(b) Each Holder agrees to cooperate with the Company in connection with
the preparation of the Resale Shelf Registration Statement, and for so long as
the Company is obligated to keep the Resale Shelf Registration Statement
effective, each Holder agrees that it will (i) respond within five (5) Business
Days to any request by the Company to provide or verify information regarding a
Holder or a Holder's Registrable Shares (including the proposed manner of sale)
that may be required to be included in such Resale Shelf Registration Statement
pursuant to the rules and regulations of the Commission, and (ii) provide in a
timely manner information regarding the proposed distribution by such Holder of
the Registrable Shares and such other information as may reasonably be requested
by the Company from time to time in connection with the preparation of and for
inclusion in the Resale Shelf Registration Statement and any related prospectus.
-8-
(c) If requested by the Company, each Holder agrees that before using
the Resale Shelf Registration Statement or any prospectus contained therein or
any amendment or supplement thereto, it will deliver to the Company a
certification that it has reviewed the information contained therein and
representing and warranting to the Company that the information relating to such
Holder and its plan of distribution is as set forth in the related prospectus,
that the prospectus does not, as of the time of such sale, contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that the prospectus does not, as of the time of such sale,
omit to state any material fact relating to such Holder or its plan of
distribution necessary to make the statements in such prospectus, in the light
of the circumstances under which they were made, misleading.
1.5 Timing of Offers and Sales. All offers and sales by any Holder
under the Resale Shelf Registration Statement shall be completed within the
period during which the Resale Shelf Registration Statement is required to
remain effective pursuant to Section 1.3(b) above. If directed by the Company,
the Holders will return all undistributed copies of any prospectus included in
the Resale Shelf Registration Statement that is in its possession upon the
expiration of such period.
1.6 Suspension of Offering. At any time either before or after the
Holder Representative has delivered a Proposed Sale Notice, the Company may
suspend offers and sales by the Holders under the Resale Shelf Registration
Statement if the Company, in its judgment exercised in good faith, determines
that (i) a negotiation or consummation of a transaction by the Company or any of
its affiliates is pending or an event has occurred, which negotiation,
consummation or event would require additional disclosure by the Company in the
Resale Shelf Registration Statement of material information which the Company
has a bona fide business purpose for keeping confidential and the nondisclosure
of which in the Resale Shelf Registration Statement might be expected to cause
the Resale Shelf Registration Statement to fail to comply with applicable
disclosure requirements or (ii) in the case of a proposed underwritten public
offering of Registrable Shares of any Holder, the offering of such Registrable
Shares could reasonably be expected to adversely affect another pending or
proposed public offering of Common Shares by and for the account of the Company
or any of its affiliates. After receiving a Proposed Sale Notice from the Holder
Representative and before the consummation of the proposed sale identified in
such Proposed Sale Notice, the Company shall give written notice thereof to the
Holder Representative (a "Materiality Notice") promptly upon making any such
determination, with a copy to each of the Holders, and upon receipt of a
Materiality Notice, each Holder agrees that it will immediately discontinue
offers and sales of the Registrable Shares under the Resale Shelf Registration
Statement until (x) in the case of a Materiality Notice delivered pursuant to
clause (i) above, such Holder receives copies of a supplemented or amended
prospectus that corrects the misstatement(s) or omission(s) referred to above
and receives notice that any post-
-9-
effective amendment has become effective or (y) in the case of a Materiality
Notice delivered pursuant to clause (ii) above, such Holder receives a
subsequent written notice from the Company that revokes or otherwise withdraws
such Materiality Notice; provided that the Company agrees that it will use
commercially reasonable efforts to not to delay or suspend offers and sales
pursuant to the Resale Shelf Registration Statement for such reason for more
than ninety (90) days after delivery of the Materiality Notice at any one time.
If so directed by the Company, each Holder agrees that it will deliver to the
Company all copies of the prospectus covering the Registrable Shares current at
the time of receipt of any Materiality Notice. If the Company delivers a
Materiality Notice pursuant to clause (ii) above, the Company agrees that it
will permit the Holders to complete an underwritten public offering
substantially similar to the type that was suspended by virtue of the foregoing
provisions commencing no later than one hundred and eighty-one (181) days after
the closing of the public offering contemplated by such Materiality Notice or
its decision not to undertake such public offering, as the case may be.
1.7 Qualification. The Company agrees to use its commercially
reasonable efforts to register or qualify the Registrable Shares by the time the
Resale Shelf Registration Statement is declared effective by the Commission
under all applicable state securities or "blue sky" laws of such jurisdictions
as any Holder or Underwriter, if any, may reasonably request in writing, to keep
each such registration or qualification effective during the period such Resale
Shelf Registration Statement is required to be kept effective pursuant to this
Agreement or during the period offers or sales are being made by such Holder
after delivery of a Registration Request to the Company, whichever is shorter,
and to do any and all other similar acts and things which may be reasonably
necessary or advisable under applicable laws and/or regulations to enable such
Holder to consummate the disposition in each such jurisdiction of the
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 Agreement, (ii) take any
action that would cause it to become subject to any taxation in any jurisdiction
where it would not otherwise be subject to such taxation or (iii) take any
action that would subject it to the general service of process in any
jurisdiction where it is not now so subject.
SECTION 2. INDEMNIFICATION
2.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Holder and each Underwriter who participates in any public
offering and sale of Registrable Shares pursuant to the Resale Shelf
Registration Statement, if any, and each person who controls any Holder or any
such Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Securities Exchange Act
-10-
of 1934, as amended (the "Exchange Act"), and any of their officers, directors,
employees or representatives, as follows:
(i) against any and all loss, liability, claim, damage, judgment and
expense whatsoever, as incurred, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Resale Shelf Registration Statement (or any amendment thereto) pursuant to
which the Registrable Shares were registered under the Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
or based upon any untrue statement or alleged untrue statement of a
material fact contained in any related prospectus (or any amendment or
supplement thereto), including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage, judgment and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, in each case whether or not a party, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 2.1 does
not apply with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of (A) any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such indemnified party
expressly for use in the Resale Shelf Registration Statement (or any amendment
thereto) or the related prospectus (or any amendment or supplement thereto) or
(B) such indemnified party's failure to deliver an amended or supplemental
prospectus provided to the indemnified party by the Company if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
-11-
2.2 Indemnification by the Holders. Each Holder (and each permitted
assignee of such Holder, on a several basis), severally and not jointly, agrees
to indemnify and hold harmless the Company, and each of the Company's
trustees/directors and officers (including each trustee/director and officer of
the Company who signed the Resale Shelf Registration Statement), and each
Underwriter who participates in any public offering and sale of Registrable
Shares pursuant to the Resale Shelf Registration Statement, if any, and each
person, if any, who controls the Company or any such Underwriters within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage, judgment and
expense whatsoever, as incurred, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Resale Shelf Registration Statement (or any amendment thereto) pursuant to
which the Registrable Shares were registered under the Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
or based upon any untrue statement or alleged untrue statement of a
material fact contained in any related prospectus (or any amendment or
supplement thereto), including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage, judgment and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Holder Representative; and
(iii) against any and all expense whatsoever, as incurred (including
reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, in each case whether or not a party, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 2.2
shall only apply with respect to any loss, liability, claim, damage, judgment or
expense to the extent
-12-
arising out of (A) any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in the Resale Shelf
Registration Statement (or any amendment thereto) or the related prospectus (or
any amendment or supplement thereto) or (B) such indemnified party's failure to
deliver an amended or supplemental prospectus provided to the indemnified party
by the Company if such loss, liability, claim, damage or expense would not have
arisen had such delivery occurred. Notwithstanding the provisions of this
Section 2.2, no Holder or any permitted assignee shall be required to indemnify
the Company, its officers, trustees/directors, officers or control persons with
respect to any amount in excess of the amount of the total proceeds to such
Holder or such permitted assignee, as the case may be, from sales of the
Registrable Shares of such Holder under the Resale Statement Registration
Statement.
2.3 Conduct of Indemnification Proceedings. An indemnified party
hereunder shall give reasonably prompt notice to the indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify the indemnifying party (i) shall not
relieve it from any liability which it may have under the indemnity agreement
provided in Section 2.1 or 2.2 above, unless and to the extent it did not
otherwise learn of such action and the lack of notice by the indemnified party
results in the forfeiture by the indemnifying party of substantial rights and
defenses, and (ii) shall not, in any event, relieve the indemnifying party from
any obligations to the indemnified party other than the indemnification
obligation provided under Section 2.1 or 2.2 above. If the indemnifying party so
elects within a reasonable time after receipt of such notice, the indemnifying
party may assume the defense of such action or proceeding at such indemnifying
party's own expense with counsel chosen by the indemnifying party and approved
by the indemnified party, which approval shall not be unreasonably withheld;
provided, however, that the indemnifying party will not settle any such action
or proceeding without the written consent of the indemnified party unless, as a
condition to such settlement, the indemnifying party secures the unconditional
release of the indemnified party; and provided further, that, if the indemnified
party reasonably determines that a conflict of interest exists where it is
advisable for the indemnified party to be represented by separate counsel or
that, upon advice of counsel, there may be legal defenses available to it which
are different from or in addition to those available to the indemnifying party,
then the indemnifying party shall not be entitled to assume such defense and the
indemnified party shall be entitled to separate counsel at the indemnifying
party's expense. If the indemnifying party is not entitled to assume the defense
of such action or proceeding as a result of the second proviso to the preceding
sentence, the indemnifying party's counsel shall be entitled to conduct the
indemnifying party's defense and counsel for the indemnified party shall be
entitled to conduct the defense of the indemnified party, it being understood
that both such counsel will cooperate with each other to conduct the defense of
such action or proceeding as efficiently as possible. If the indemnifying party
is not so entitled to
-13-
assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel for the
indemnified party. In such event, however, the indemnifying party will not be
liable for any settlement effected without the written consent of the
indemnifying party. If an indemnifying party is entitled to assume, and assumes,
the defense of such action or proceeding in accordance with this paragraph, the
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified party incurred thereafter in connection with such action or
proceeding.
2.4 Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Sections 2.1 and 2.2 above is for any reason held to be unenforceable by the
indemnified party although applicable in accordance with its terms, each
indemnifying party shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the indemnified party, (i) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
each Holder on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative fault
of, but also the relative benefits to, the Company on the one hand and each
Holder on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits to the
indemnifying party and indemnified party shall be determined by reference to,
among other things, the total proceeds received by the indemnifying party and
indemnified party in connection with the offering to which such losses, claims,
damages, liabilities or expenses relate. The relative fault of the indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, the indemnifying
party or the indemnified party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 2.4 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 2.4, a Holder shall not be
required to contribute any amount in excess of the amount of the total proceeds
to such Holder from sales of the Registrable Shares of such Holder under the
Resale Shelf Registration Statement.
-14-
Notwithstanding the foregoing, no person guilty of fraudulent misrepre-
sentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 2.4, each person, if any, who
controls any Holder within the meaning of Section 15 of the Act shall have the
same rights to contribution as such Holder, and each trustee/director of the
Company, each officer of the Company who signed the Resale Shelf Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act shall have the same rights to contribution as the
Company.
SECTION 3. EXPENSES
3.1 Registration Expenses. Other than those expenses referred in
Section 3.2 hereto, the Company shall pay all expenses incurred in connection
with the registration of the Registrable Shares pursuant to Section 1 above and
the performance by the Company of its registration obligations under the terms
of this Agreement (such expenses, the "Registration Expenses"), including (i)
all stock exchange, Commission registration, listing and filing fees, (ii) all
expenses incurred in connection with the preparation, printing and distribution
of the Resale Shelf Registration Statement and the related prospectus and any
amendments or supplements thereto, (iii) fees and disbursements of counsel for
the Company and of independent certified public accountants and other advisors
retained by the Company and (iv) NASD fees and fees and expenses of registration
or qualification of Registrable Shares under state securities laws.
3.2 Holder Expenses. Each Holder shall pay all of its expenses incurred
in connection with the exercise of its Registration Right, including, without
limitation, any underwriting or brokerage discounts and sales commissions, all
fees and disbursements of the Holder's counsel, accountants and other advisors
and any transfer fees or expenses (including the cost of all transfer tax
stamps) relating to the sale or disposition of the Registrable Shares by such
Holder pursuant to this Agreement.
3.3 Payment/Reimbursement of Expenses Relating to Underwriting
Offerings. In the case of any underwritten offering of Registrable Shares
(including any block sale to or arranged through any underwriter), the Holders
participating in that offering shall pay (and reimburse the Company, to the
extent incurred by it, for) all of the following expenses incurred in connection
therewith that would not have arisen if the offer was not being conducted as an
underwritten offering, pro rata based on the aggregate number of Registrable
Shares of each such Holder proposed for inclusion in that offering: (i) any
printing or other duplicating expenses, delivery charges and escrow fees, (ii)
fees and disbursements of counsel to the Company (including, without limitation,
the fees and expenses relating to the preparation and delivery of legal opinions
to the underwriters), (iii) fees and expenses for independent certified public
accountants
-15-
retained by the Company (including, without limitation, the fees and expenses
relating to the preparation or delivery by them of any special procedures
letters, any comfort letters or other similar undertakings), (iv) fees and
expenses of any special advisors or experts retained by the Company or the
underwriters in connection with such offering, and (v) any fees and
disbursements of underwriters and broker-dealers customarily paid by issuers or
sellers of securities.
SECTION 4. RULE 144 COMPLIANCE
The Company covenants that it will use its best efforts to timely file
the reports required to be filed by the Company under the Act and the Exchange
Act so as to enable each Holder to sell Registrable Shares pursuant to Rule 144
under the Act. In connection with any sale, transfer or other disposition by a
Holder of any Registrable Shares pursuant to Rule 144 under the Act, the Company
shall cooperate with such Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Shares to be sold and not
bearing any Act legend, and enable certificates for such Registrable Shares to
be for such number of shares and registered in such names as the Holder
Representative may reasonably request in writing at least ten (10) Business Days
prior to any sale of Registrable Shares hereunder.
SECTION 5. MISCELLANEOUS
5.1 Integration; Amendment. This Agreement constitutes the entire
agreement among the parties hereto with respect to the matters set forth herein
and supersedes and renders of no force and effect all prior oral or written
agreements, commitments and understandings among the parties with respect to the
matters set forth herein. Except as otherwise expressly provided in this
Agreement, no amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by the Company
and the Holders.
5.2 Waivers. No waiver by a party hereto shall be effective unless made
in a written instrument duly executed by the party against whom such waiver is
sought to be enforced, and only to the extent set forth in such instrument.
Neither the waiver by any of the parties hereto of a breach or a default under
any of the provisions of this Agreement, nor the failure of any of the parties,
on one or more occasions, to enforce any of the provisions of this Agreement or
to exercise any right or privilege hereunder shall thereafter be construed as a
waiver of any subsequent breach or default of a similar nature, or as a waiver
of any such provisions, rights or privileges hereunder.
5.3 Assignment; Successors and Assigns. Except as set forth in the next
sentence, this Agreement and the rights granted hereunder may not be assigned by
any Holder without the prior written consent of the Company, which may be
granted or
-16-
withheld by the Company in its discretion. Each Holder will be permitted to
assign its rights under this Agreement to one or more entities controlled by it
in connection with a concurrent transfer of VNOP Units or Registrable Shares
that is permitted by the terms of the Partnership Agreement, so long as the
Holder provides to the Company at least five (5) Business Days' advance written
notice of the transfer, and the transferee executes and delivers to the Company
an instrument, in form and substance acceptable to the Company, agreeing to be
bound by the terms of this Agreement as if it were an original party hereto.
This Agreement shall inure to the benefit of and be binding upon all of the
parties hereto and their respective successors and permitted assigns.
5.4 Notices. All notices called for under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally or by
facsimile transmission and followed promptly by mail, or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the addresses set forth below in this Section 5.4, or to any other address or
addressee as any party entitled to receive notice under this Agreement shall
designate, from time to time, to the others in the manner provided in this
Section 5.4 for the service of notices; provided, however, that notices of a
change of address shall be effective only upon receipt thereof. Any notice
delivered to the party hereto to whom it is addressed shall be deemed to have
been given and received on the day it was received; provided, however, that, if
such day is not a Business Day, then the notice shall be deemed to have been
given and received on the Business Day next following such day and if any party
rejects delivery of any notice attempted to be given hereunder, delivery shall
be deemed given on the date of such rejection. Any notice sent by facsimile
transmission shall be deemed to have been given and received on the Business Day
next following the transmission.
if to the Company:
Vornado Realty Trust
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President, Finance and Administration
Facsimile: (000) 000-0000
and
Vornado Realty Trust
000 Xxxxx 0 Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Executive Vice President, Finance and Administration
Facsimile: (000) 000-0000
-17-
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
if to any Holder or the Holder Representative:
c/o Xxxxxxx X. Xxxxx Commercial Realty L.L.C.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx #0
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
5.5 Specific Performance. The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to (i)
compel specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.
5.6 Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of New York, but not
including the choice of law rules thereof.
-18-
5.7 Headings. Section and subsection headings contained in this Agree-
ment are inserted for convenience of reference only, shall not be deemed to be a
part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
5.8 Pronouns. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as the identity
of the person or entity may require.
5.9 Execution in Counterparts. To facilitate execution, this Agreement
may be executed in as many counterparts as may be required. It shall not be
necessary that the signature of or on behalf of each party appear on each
counterpart, but it shall be sufficient that the signature of or on behalf of
each party appear on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of all of the
parties.
5.10 Severability. If fulfillment of any provision of this Agreement,
at the time such fulfillment shall be due, shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision contained in this
Agreement operates or would operate to invalidate this Agreement, in whole or in
part, then such clause or provision only shall be held ineffective, as though
not herein contained, and the remainder of this Agreement shall remain operative
and in full force and effect.
SIGNATURES ON FOLLOWING PAGE
-19-
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first hereinabove set
forth.
VORNADO REALTY TRUST
By: /s/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President -
Finance and Administration
and Chief Executive Officer
/s/ XXXXXX X. XXXXX
---------------------------------------
Xxxxxx X. Xxxxx
/s/ XXXXXXX X. XXXXX
---------------------------------------
Xxxxxxx X. Xxxxx
/s/ XXXXXX X. XXXXX
---------------------------------------
Xxxxxx X. Xxxxx
/s/ XXXXXX X. XXXXX
---------------------------------------
Xxxxxx X. Xxxxx
XXXXXXX X. XXXXX MANAGEMENT, INC.
On its own behalf and as Holder
Representative,
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
-20-
TABLE OF CONTENTS
Page
SECTION 1. REGISTRATION RIGHTS...........................................1
1.1 Shelf Registration Right......................................1
1.2 Underwritten Offerings........................................3
1.3 Obligations of the Company....................................4
1.4 Holder Obligations............................................8
1.5 Timing of Offers and Sales....................................9
1.6 Suspension of Offering........................................9
1.7 Qualification................................................10
SECTION 2. INDEMNIFICATION.............................................11
2.1 Indemnification by the Company..............................11
2.2 Indemnification by the Holders..............................12
2.3 Conduct of Indemnification Proceedings......................13
2.4 Contribution................................................14
SECTION 3. EXPENSES....................................................15
3.1 Registration Expenses.......................................15
3.2 Holder Expenses.............................................15
3.3 Payment/Reimbursement of Expenses
Relating to Underwriting Offerings..........................15
SECTION 4. RULE 144 COMPLIANCE.........................................16
SECTION 5. MISCELLANEOUS...............................................16
5.1 Integration; Amendment......................................16
5.2 Waivers.....................................................16
5.3 Assignment; Successors and Assigns..........................17
5.4 Notices.....................................................17
5.5 Specific Performance........................................18
5.6 Governing Law...............................................18
5.7 Headings....................................................19
5.8 Pronouns....................................................19
5.9 Execution in Counterparts...................................19
5.10 Severability................................................19
