1
EXHIBIT 4
THIS AGREEMENT is made as of August 8, 1997 by and between THE EQUITABLE
LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation having an
office at 1290 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 ("Seller"), and
XXXXX XXXXXXXXX GROUP, INC., a Maryland corporation having an office at National
City Center, 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("SDG").
WITNESSETH:
Seller is this day selling and assigning to SD Dadeland Limited
Partnership (the "Partnership"), a Delaware limited partnership whose general
partner is a wholly-owned subsidiary of SDG and in whose limited partner SDG is
a general partner, an undivided 50% beneficial interest in a Florida Land Trust
which holds title to Dadeland Mall, a regional shopping center located in Dade
County, Florida.
Pursuant to the Purchase and Sale Agreement between Seller and the
Purchaser (the "Purchase and Sale Agreement"), a portion of the purchase price
for such undivided 50% interest consists of 658,707 shares of the common stock
of SDG being issued to Seller by SDG (the "Shares").
In connection with the issuance of the Shares by SDG to Seller, the
Purchaser agreed to cause SDG to enter into this Agreement with Seller.
NOW, THEREFORE, in consideration of the premises and of Ten Dollars
($10) and other good and valuable consideration by each party hereto to the
other paid, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Within five (5) days after the date hereof SDG shall file a
registration statement on an appropriate registration form under the Securities
Act of 1933, as amended, and the regulations promulgated thereunder (the "1933
Act"), with the Securities and Exchange Commission ("SEC") covering the resale
of the Shares (the "Registration Statement") and shall use its reasonable best
efforts to cause the Registration Statement to become effective under the 1933
Act within ninety (90) days following the date hereof (the "Outside Date"). Time
is of the essence with respect to such time period. SDG has heretofore furnished
to Seller a copy of a draft Registration Statement in the form proposed to be
filed with the SEC and Seller has approved such form. If the Registration
Statement becomes effective, until the earliest to occur of (i) the sale or
transfer by Seller of all the Shares, (ii) the date on which the Shares become
eligible for sale pursuant to Rule 144(k) under the 1933 Act, and (iii) the
third anniversary of the effective date of the Registration Statement, SDG shall
keep the Registration Statement current, effective and available for the resale
by Seller of the Shares. SDG agrees that it shall deliver to Seller copies of
the Registration Statement as filed with the SEC and any amendments and
supplements thereto (other than post-effective amendments) prior to the filing
thereof. SDG shall bear all expenses relating to filing the Registration
Statement and keeping the Registration Statement current, effective and
available during the period specified above; provided, however, that SDG shall
not be responsible for any brokerage fees or underwriting commissions, if any,
incurred by Seller in connection with the resale by Seller of the Shares or the
fees and expenses of any counsel retained by Seller in connection with its sale
of the Shares.
2. During the time period that the Registration Statement is required
to be current, effective and available under Section 1 above, SDG shall also at
its expense:
2.1 prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus constituting a part
thereof, as amended or supplemented (the "Prospectus"), as may be
necessary to keep the Registration Statement effective and to comply
with the provisions of the 1933 Act with respect to the sale of the
Shares whenever Seller shall desire to sell or otherwise dispose of the
same, or any portion thereof, but in no event beyond the period during
which the Registration Statement is required to be kept in effect under
Section 1 above;
2
2.2 furnish to Seller, without charge, such number of authorized
copies of the Prospectus, and any amendments or supplements to the
Prospectus, in conformity with the requirements of the 1933 Act and the
Securities Exchange Act of 1934, as amended, and the regulations
promulgated thereunder (the "1934 Act"), and such other documents as
Seller may reasonably request in order to facilitate the public sale or
other disposition of the Shares owned by Seller;
2.3 register or qualify the Shares under state securities or blue
sky laws of such jurisdictions as are reasonably required to effect a
sale thereof and do any and all other acts and things which may be
necessary or appropriate under such state securities or blue sky laws
to enable Seller to consummate the public sale or other disposition in
such jurisdictions of the Shares to be sold or otherwise disposed of by
Seller from time to time;
2.4 before filing with the SEC any amendments or supplements to
the Registration Statement or the Prospectus, furnish copies of all
such documents proposed to be filed to Seller, which shall have five
(5) business days to review and comment thereon (and absent comment
within such five (5) business day period such documents shall be deemed
approved by Seller); provided, however, that all such documents shall
be subject to the approval of Seller insofar as they relate to
information concerning Seller (including, without limitation, the
proposed method of distribution of the Shares);
2.5 notify Seller promptly (a) when the Registration Statement has
become effective and when any post-effective amendments and supplements
thereto become effective, (b) of any request by the SEC or any state
securities authority for amendments or supplements to the Registration
Statement and the Prospectus or for additional information, (c) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (d) of the receipt by
SDG of any notification with respect to the suspension of the
qualification of the Shares or the initiation of any proceeding for
such purpose, and (e) of the happening of any event during the period
the Registration Statement is effective which in the judgment of SDG
makes any statement made in the Registration Statement or the
Prospectus untrue in any material respect or which requires the making
of any changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading;
2.6 use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at
the earliest practicable time;
2.7 cooperate with Seller to facilitate the timely preparation and
delivery of certificates representing Shares being sold, which
certificates shall not bear any restrictive legends provided the Shares
evidenced thereby have been sold in a manner permitted by the
Prospectus; and
2.8 upon the occurrence of any event contemplated by subsection
2.5(e), promptly prepare and file a supplement or post-effective
amendment to the Registration Statement or the Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to purchasers of the Shares,
the Prospectus will not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the obligation to prepare and file
any such supplement or post-effective amendment shall be suspended if
SDG, relying upon advice of counsel, determines that disclosure of any
information required to be included therein would be adverse to its
interests, but such suspension shall not extend beyond thirty (30) days
with respect to any such specified event or for more than an aggregate
of sixty (60) days in any calendar year.
3. SDG hereby agrees to indemnify and hold harmless Seller and
each person or entity, if any, which controls Seller (within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act), and its and
their respective officers, directors, agents and employees, from and against any
and all losses, claims, damages, costs and expenses (including reasonable
attorneys' fees) to which Seller or each such Person may become subject under
the 1933 Act or otherwise by reason of any untrue statement or alleged untrue
statement of a material fact
3
contained in the Registration Statement or the Prospectus, or by reason of any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse Seller for any legal or other expenses reasonably incurred by
Seller in connection with investigating or defending any such loss, claim or
damages as such expenses are incurred; provided, however, that SDG shall not be
liable insofar as any such losses, claims, damages, costs and expenses
(including reasonable attorneys fees) are caused or incurred by reason of any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to SDG by Seller expressly for use
therein. In addition, upon request of Seller, SDG shall enter into one or more
indemnification agreements with any broker or brokers engaged by Seller to sell
all or any portion of the Shares, each such agreement to indemnify the broker in
question against the same losses, claims, damages, costs and expenses as Seller
is indemnified against by SDG under this paragraph 3 in the event that such
broker is deemed to be an underwriter in respect of the Shares.
4. Seller hereby (i) represents and warrants that the Shares are
being acquired by Seller for investment and not with a view to the distribution
thereof (except as contemplated by and in accordance with this Agreement, the
Registration Statement or otherwise in accordance with the requirements of the
1933 Act and the 1934 Act and all applicable state securities laws), (ii) agrees
that, upon receipt of any notice from SDG of the happening of any event of the
kind described in subsection 2.5(e), Seller will forthwith discontinue
disposition of the Shares pursuant to the Registration Statement until Seller's
receipt of the copies of the supplemented or amended Prospectus contemplated by
subsection 2.8 and (iii) agrees that the certificate or certificates
representing the Shares which are initially issued to Seller shall bear the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF 1933 AND IN
COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE WITH RESPECT
THERETO, OR IN ACCORDANCE WITH AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
5. SDG covenants and agrees that upon the issuance of the Shares
by SDG to Seller pursuant to the Purchase and Sale Agreement, Seller shall have
good and absolute title to the Shares free and clear of all liens, encumbrances
and security interests except for restrictions under the 1933 Act and the 1934
Act, restrictions on transfer contemplated by Section 4 above and any liens,
encumbrances and security interests arising out of Seller's own acts.
6. Anything contained in this Agreement to the contrary
notwithstanding, in the event SDG for any reason fails or is unable to register
the Shares under the 1933 Act on or before the close of business on the Outside
Date, and subsequent to the Outside Date but prior to the earlier to occur of
the effectuation of such registration and the date on which the Shares become
eligible for sale pursuant to Rule 144(k) under the 1933 Act, Seller desires to
sell all or any portion of the Shares, Seller shall give notice to SDG of the
fact that it desires to make such sale. If Seller gives any such notice to SDG
and thereafter (i) Seller exerts its reasonable good faith efforts to effectuate
such sale at the highest price then reasonably obtainable through a private
placement that is exempt from registration under the 1933 Act, or (ii) if the
Registration Statement becomes effective before such sale is effectuated and
promptly thereafter Seller sells the Shares in question pursuant to the
Registration Statement, and if in either such event the gross sales price
received by Seller per Share upon such sale is less than the closing price of a
share of SDG's common stock on the New York Stock Exchange on the date of
Seller's notice to SDG (the "Closing Price"), then and in such event within 30
days after receipt of notice from Seller of the effectuation of such sale, the
date thereof, the gross purchase price per Share received and the number of
Shares sold, SDG shall pay to Seller an amount equal to the product of (a) the
number of Shares sold and (b) the amount by which the Closing Price exceeds the
gross purchase price per Share received by Seller.
7. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Notices which
either party hereto may desire or be required to give to the other shall be
given in the manner provided in Article 15 of the Purchase and Sale Agreement.
The provisions of the
4
Agreement shall be construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed within said state.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
XXXXX XXXXXXXXX GROUP, INC.
By /s/ Xxxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
