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EXHIBIT 99.1
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of April 6, 1998,
is entered into by and between Oasis Residential, Inc., a Nevada corporation
(the "Company"), and ISCO, a California general partnership ("ISCO"), and IFT
Properties, Ltd., a California limited partnership ("IFT") (collectively, the
"Unitholders").
In consideration of the mutual agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. The following capitalized terms, as
used in this Agreement, have the following meanings:
"AGREEMENT" means this Registration Rights Agreement, as it
may be amended, supplemented or restated from time to time.
"BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York, New York or Los Angeles,
California are authorized by law to close.
"CLOSING PRICE" means (i) the closing price of a share of
Common Stock on the principal exchange on which shares of Common Stock are then
trading, if any, or (ii) if the Common Stock is not traded on an exchange but is
quoted on NASDAQ or a successor quotation system, (1) the last sales price (if
the Common Stock is then listed as a National Market Issue under the NASD
National Market System) or (2) the mean between the closing representative bid
and asked prices (in all other cases) for the Common Stock as reported by NASDAQ
or such successor quotation system or (iii) if the Common Stock is not publicly
traded on an exchange and not quoted on NASDAQ or a successor quotation system,
the mean between the closing bid and asked prices for the Common Stock.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Common Stock, par value $.01 per
share, of the Company.
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"CONTRIBUTION AGREEMENT" means the Contribution Agreement
dated as of October 23, 1997 by and among the Company, Costa Mesa Partners LLC,
ISCO, IFT, Xxxxxx Israel and Xxxxxx Xxxxx.
"DEMAND REGISTRATION" has the meaning set forth in Section 3.2
(a) hereof.
"DEMAND REGISTRATION STATEMENT" has the meaning set forth in
Section 3.2 (a) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE RIGHTS AGREEMENT" means the Exchange Rights
Agreement dated as of October 23, 1997 among the Company, the Operating LLC,
ISCO and IFT.
"EXCHANGEABLE LLC UNITS" means the 575,162 LLC Units owned by
ISCO on the date hereof and the 8,860 LLC Units owned by IFT on the date hereof
which may be exchanged for Common Stock pursuant to the Exchange Rights
Agreement.
"FILING DATE" has the meaning set forth in Section 2.1 hereof.
"FULL CONVERSION DATE" has the meaning set forth in Section
2.1 hereof.
"HOLDER" means any Person who is the record owner of any
Registrable Security unless such Registrable Security is acquired in a sale
pursuant to a registration statement under the Securities Act or pursuant to a
transaction exempt from registration under the Securities Act, in each such case
where the security sold in such transaction may be resold without subsequent
registration under the Securities Act.
"ISSUANCE REGISTRATION STATEMENT" has the meaning set forth in
Section 2.1.
"LLC AGREEMENT" means the Amended and Restated Limited
Liability Company Agreement of the Operating LLC dated as of October 23, 1997,
as amended by Amendment No. 1 to the Amended and Restated Limited Liability
Company Agreement dated as of March 25, 1998, as the same may be further
amended, modified or restated from time to time.
"LLC UNITS" has the meaning set forth in the LLC Agreement.
"XXXXXXX XXXXX" means Xxxxxxx Xxxxx International Private
Finance Limited.
"XXXXXXX XXXXX REGISTRATION RIGHTS AGREEMENT" means that
certain Registration Rights Agreement dated as of April 2, 1998 by and between
the Company and Xxxxxxx Xxxxx.
"OPERATING LLC" means Oasis Martinique, LLC, a Delaware
limited liability company.
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"PERSON" means an individual or a corporation, partnership,
limited liability company, association, trust, or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"PIGGY-BACK REGISTRATION STATEMENT" means any registration
statement of the Company in which Registrable Securities are included pursuant
to Section 3.2 hereof.
"REGISTRABLE SECURITIES" means shares of Common Stock of the
Company issued upon exchange of Exchangeable LLC Units pursuant to the terms of
the Exchange Rights Agreement at any time owned of record by any Holder (other
than shares of Common Stock of the Company covered by the Xxxxxxx Xxxxx
Registration Rights Agreement) unless and until (i) a registration statement
covering such shares has been declared effective by the Commission and the
shares have been issued by the Company to Holder upon exchange of Exchangeable
LLC Units pursuant to the effective registration statement or have been sold or
transferred by Holder to another Person pursuant to the effective registration
statement, (ii) such shares are sold pursuant to the provisions of Rule 144
under the Securities Act (or any similar provisions then in force) ("Rule 144"),
(iii) such shares are held by a Holder who is not an affiliate of the Company
within the meaning of Rule 144 (a "Rule 144 Affiliate") and may be sold pursuant
to Rule 144(k) under the Securities Act, (iv) such shares are held by a Holder
who is a Rule 144 Affiliate and all such shares may be sold pursuant to Rule 144
within a period of three months in accordance with the volume limitations set
forth in Rule 144(e)(1), or (iv) such shares have been otherwise transferred in
a transaction that would constitute a sale under the Securities Act and such
shares may be resold without subsequent registration under the Securities Act.
"RESALE PROSPECTUS" has the meaning set forth in Section 3.5.
"RESALE REGISTRATION STATEMENT" has the meaning set forth in
Section 3.5.
"REINSTATEMENT PERIOD" has the meaning set forth in Section
3.1.
"S-3 EXPIRATION DATE" means the date on which Form S-3 (or a
similar successor form of registration statement) is not available to the
Company for the registration of Registrable Securities pursuant to the
Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLING HOLDER" means a Holder who is selling Registrable
Securities pursuant to a Demand Registration Statement or a Piggyback
Registration Statement.
"SUPPLEMENTAL RIGHTS PERIOD" has the meaning set forth in
Section 3.1.
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ARTICLE II
REGISTRATION
SECTION 2.1. REGISTRATION STATEMENT COVERING ISSUANCE OF
COMMON STOCK. Subject to the provisions of Article III hereof, the Company will
file with the Commission a registration statement on Form S-3 (the "Issuance
Registration Statement") under Rule 415 under the Securities Act covering the
issuance to record owners of Exchangeable LLC Units of shares of Common Stock in
exchange for Exchangeable LLC Units, such filing to be made within the two (2)
week period following the date (the "Filing Date") which is the later of (i) a
date which is thirty (30) days prior to the first date on which the Exchangeable
LLC Units issued pursuant to the Contribution Agreement may be exchanged for
shares of Common Stock pursuant to the provisions of the Exchange Rights
Agreement or (ii) such other date as may be required by the Commission pursuant
to its interpretation of applicable federal securities laws and the rules and
regulations promulgated thereunder. The Company shall use its reasonable efforts
to cause the Issuance Registration Statement filed with the Commission to be
declared effective by December 24, 1998. In the event the Company is unable to
cause the Issuance Registration Statement to be declared effective by the
Commission by December 24, 1998, then the rights of the Holders set forth in
Section 3.1 hereof shall apply to Common Stock received by Holders upon exchange
of the Exchangeable LLC Units for shares of Common Stock. Notwithstanding the
availability of rights under Section 3.1 hereof, the Company shall continue to
use its reasonable efforts to cause the Issuance Registration Statement to be
declared effective by the Commission and if it shall be declared effective by
the Commission, the obligations of the Company under Section 3.1 hereof shall
cease. The Company agrees to use its reasonable efforts to keep the Issuance
Registration Statement continuously effective (a) until the earlier of (i) the
S-3 Expiration Date, or (ii) the first date (the "Full Conversion Date") on
which no Exchangeable LLC Units (other than those held by the Company) remain
outstanding, and (b) during any Reinstatement Period.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1. REGISTRATION RIGHTS IF FORM S-3 IS NOT AVAILABLE.
The following provisions shall apply with respect to Registrable Securities
during the period, if any, beginning on the S-3 Expiration Date (or, if the S-3
Expiration Date shall occur before the first date on which the Exchangeable LLC
Units issued pursuant to the Contribution Agreement may be exchanged for shares
of Common Stock, beginning on such first date) and ending on the date when the
Company would no longer be obligated to maintain the applicable registration
statement in effect pursuant to the terms of Section 2.1 if the S-3 Expiration
Date had not occurred (the "Supplemental Rights Period"), provided, however,
that the Supplemental Rights Period shall not include any period following the
S-3 Expiration Date and prior to the Full Conversion Date if during that period
(the "Reinstatement Period") the Company shall again be entitled to use Form S-3
or a similar successor form of registration statement) for registration of the
Registrable Securities. During the Supplemental Rights Period, the Holders shall
have the following rights:
(a) DEMAND RIGHT. Subject to the provisions of Section 3.1
hereof, holders may make a written demand for registration under the Securities
Act of all or part of the
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Registrable Securities (a "Demand Registration") and upon such demand the
Company shall be obligated to register such Registrable Securities under the
Securities Act in accordance with the provisions of this Agreement; provided,
however, that (i) the Company shall not be obligated to effect more than one
Demand Registration for Holders in any twelve month period, and (ii) the number
of Registrable Securities proposed to be sold by the Holders making such written
request either (i) shall be all the Registrable Securities owned by all holders
of Registrable Securities, or (ii) shall have an estimated market value at the
time of such request (based upon the then market price of a share of Common
Stock) of at least $2,000,000. The Company shall file any registration statement
required by this Section 3.1(a) (a "Demand Registration Statement") with the SEC
within thirty (30) days of receipt of the requisite Holder demand and shall use
its reasonable efforts to cause the Demand Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. The Company shall use
its reasonable efforts to keep each such Demand Registration Statement
continuously effective for a period of ninety (90) days, unless the offering
pursuant to the Demand Registration Statement is an underwritten offering and
the managing underwriter requires that the Demand Registration Statement be kept
effective for a longer period of time, in which event the Company shall maintain
the effectiveness of the Demand Registration Statement for such longer period up
to one hundred twenty (120) days (such period, in each case, to be extended by
the number of days, if any, during which Holders were not permitted to make
offers or sales under the Demand Registration Statement by reason of Section 3.3
hereof). The Company may elect to include in any Demand Registration Statement
additional shares of Common Stock to be issued by the Company, subject, in the
case of an underwritten secondary Demand Registration, to cutback by the
managing underwriters. A registration shall not constitute a Demand Registration
under this Section 3.1(a) until the Demand Registration Statement has been
declared effective.
(b) PIGGYBACK RIGHTS. If the Company at any time during the
Supplemental Rights Period proposes to file a registration statement under the
Securities Act with respect to an offering of shares of Common Stock for its own
account or for the account of any holders of shares of its Common Stock, in each
case solely for cash (other than an Issuance Registration Statement or a
registration statement (i) on Form S-8 or any successor form to Form S-8 or in
connection with any employee or director welfare, benefit or compensation plan,
(ii) in connection with an exchange offer or an offering of securities
exclusively to existing security holders of the Company or its subsidiaries or
(iii) relating to a transaction pursuant to Rule 145 of the Securities Act), the
Company shall give written notice of the proposed registration to the record
owners of Registrable Securities at least twenty (20) days prior to the filing
of the registration statement. Subject to the provisions of Section 3.1(c)
hereof, the Holders of Registrable Securities shall have the right to request
that all or any part of the Registrable Securities be included in the
registration by giving written notice to the Company within ten (10) days after
the giving of the foregoing notice by the Company; provided, however, (A) if the
registration relates to an underwritten primary offering on behalf of the
Company and the managing underwriters of the offering determine in good faith
that the aggregate amount of securities of the Company which the Company,
Holders of Registrable Securities and holders of other piggyback registration
rights propose to include in the registration statement exceeds the maximum
amount of securities that could practicably be included therein, the Company
will include in the registration, up to such maximum amount, first, the
securities which the Company proposes to sell, and second, pro rata, the
Registrable Securities and the securities proposed to be included by any holders
of other piggyback
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registration rights, and (B) if the registration is an underwritten secondary
registration on behalf of any of the other security holders of the Company (the
"Secondary Offering Security Holders") and the managing underwriters determine
in good faith that the aggregate amount of securities which the Holders of
Registrable Securities, the Secondary Offering Security Holders and the holders
of other piggyback registration rights propose to include in the registration
exceeds the maximum amount of securities that could practicably be included
therein, the Company will include in the registration, up to such maximum
amount, first, the securities to be sold for the account of the Secondary
Offering Security Holders, and second, pro rata, the Registrable Securities and
the securities proposed to be included by any holders of other piggyback
registration rights. (It is understood, however, that the underwriters shall
have the right to terminate entirely the participation of the Holders of
Registrable Securities if the underwriters eliminate entirely the participation
in the registration of all the other holders electing to include securities in
the registration (other than the Company and the Secondary Offering Security
Holders) because it is not practicable to include such securities in the
registration.) If the registration is not an underwritten registration, then all
of the Registrable Securities requested to be included in the registration shall
be included. Registrable Securities proposed to be registered and sold pursuant
to an underwritten offering for the account of the Holders of Registrable
Securities shall be sold to prospective underwriters selected by such Holders
and approved by the Company and on the terms and subject to the conditions of
one or more underwriting agreements negotiated between the Company, the
Secondary Offering Security Holders, the Holders of Registrable Securities and
any other holders demanding registration and the prospective underwriters.
Registrable Securities need not be included in any registration statement
pursuant to this provision if in the opinion of counsel to the Company
reasonably acceptable to the record owners of Registrable Securities (a copy of
which opinion is delivered to such record owners) registration under the
Securities Act is not required for public distribution of the Registrable
Securities. The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 3.1(b) prior to the
effectiveness of the registration statement whether or not any holder has
elected to include any Registrable Securities in the registration statement.
(c) COMPANY REPURCHASE. Upon receipt by the Company of a
registration demand or request pursuant to this Section 3.1, the Company may,
but will not be obligated to, purchase for cash from any Holder so demanding or
requesting registration all, but not less than all, of the Registrable
Securities which are the subject of the demand or request at a price per share
equal to the average of the Closing Prices of a share of Common Stock for the
ten (10) trading days immediately preceding the date of receipt by the Company
of the registration demand or request. In the event the Company elects to
purchase the Registrable Securities which are the subject of a registration
demand or request, the Company shall notify the Holder within five Business Days
of the date of receipt of the demand or request by the Company, which notice
(the "Purchase Notice") shall indicate (i) that the Company will purchase for
cash the Registrable Securities held by the Holder which are the subject of the
demand or request, (ii) the price per share, calculated in accordance with the
preceding sentence, which the Company will pay the Holder and (iii) the date
upon which the Company shall purchase the Registrable Securities (the "Purchase
Date"), which date shall be the fifteenth Business Day after receipt of the
registration demand or request. The Company shall so purchase the Registrable
Securities on the Purchase Date unless the Holder notifies the Company in
writing on or before the fifth Business Day following the date on which the
Company gives the Purchase Notice to the Holder of Holder's withdrawal of the
registration demand
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or request with respect to all of the Registrable Securities covered by such
demand or request, in which event (i) the Registrable Securities shall not be
purchased by the Company on the Purchase Date and (ii) the Holder shall be
precluded from making any additional registration demands or requests in respect
of such Registrable Securities during the six-month period following the receipt
by the Company of the registration demand or request so withdrawn. If the
Company purchases the Registrable Securities which are the subject of a
registration demand or request, then upon such purchase the Company shall be
relieved of its obligations under this Section with respect to such Registrable
Securities.
SECTION 3.2. ADDITIONAL REGISTRATION PROCEDURES. In connection
with any registration statement covering Registrable Securities filed by the
Company pursuant to Section 2.1 or 3.1 hereof:
(a) Each Holder agrees to provide in a timely manner
information requested by the Company regarding the proposed distribution by that
Holder of the Registrable Securities and all other information reasonably
requested by the Company in connection with the preparation of the registration
statement covering the Registrable Securities.
(b) In connection with any Demand Registration
Statement or Piggyback Registration Statement, the Company will furnish to each
Selling Holder of Registrable Securities that number of copies of the
registration statement or prospectus in conformity with the requirements of the
Securities Act and such other documents as the Selling Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by the Selling Holder.
(c) After the filing of the registration statement,
the Company will promptly notify each Selling Holder of Registrable Securities
covered by the registration statement of any stop order issued or threatened by
the Commission and take all reasonable actions required to prevent the entry of
such stop order or to remove it if entered.
(d) In connection with any Demand Registration
Statement or Piggyback Registration Statement, the Company will enter into
customary agreements (including an underwriting agreement, if any, in customary
form) as are reasonably required in order to expedite or facilitate the
disposition of Registrable Securities pursuant to the Demand Registration
Statement or Piggyback Registration Statement. Each Selling Holder participating
in an underwritten offering shall also enter into and perform its or his
obligations under the underwriting agreement.
(e) The Company will use its reasonable efforts to
cause all such Registrable Securities to be listed on each securities exchange
on which similar securities issued by the Company are then listed.
(f) The Company will use its reasonable efforts to
register or qualify the Registrable Securities for sale under such securities or
blue sky laws of those jurisdictions in the United States (where an exemption is
not available) as the Selling Holder reasonably (in light of the Selling
Holder's intended plan of distribution) requests, provided, however, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not
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otherwise be required to qualify but for this paragraph (f), (ii) subject itself
to taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction.
SECTION 3.3. MATERIAL DEVELOPMENTS; SUSPENSION OF OFFERING.
(a) Notwithstanding the provisions of Sections 2.1 or
3.1 hereof or any other provisions of this Agreement to the contrary, the
Company shall not be required to file a registration statement or to keep any
registration statement effective if the negotiation or consummation of a
transaction by the Company or any of its subsidiaries is pending or an event has
occurred, which negotiation, consummation or event would require additional
disclosure by the Company in the registration statement of material information
which the Company (in the judgment of management of the Company) has a bona fide
business purpose for keeping confidential and the nondisclosure of which in the
registration statement might cause the registration statement to fail to comply
with applicable disclosure requirements; provided, however, that the Company (i)
will promptly notify the record holders of Exchangeable LLC Units and the
Holders of Registrable Securities otherwise entitled to registration of the
foregoing and (ii) may not delay, suspend or withdraw the registration statement
for such reason more than twice in any twelve (12) month period or three times
in any twenty-four (24) month period or for more than one hundred twenty (120)
days at any time. Upon receipt of any notice from the Company of the happening
of any event during the period the registration statement is effective which is
of a type specified in the preceding sentence or as a result of which the
registration statement or 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 statement therein, in light of the circumstances under
which they were made not misleading, Holders agree that they will immediately
discontinue offers and sales of the Registrable Securities under the
registration statement (until they receive copies of a supplemental or amended
prospectus that corrects the misstatements or omissions and receive notice that
any post-effective amendment has become effective). If so directed by the
Company, record holders of Exchangeable LLC Units and the Holders will deliver
to the Company any copies of the prospectus covering the Registrable Securities
in their possession at the time of receipt of such notice. In the event the
Company shall give notice of the happening of an event of the kind described in
this Section 3.3(a), the Company shall extend the period during which the
affected registration statement is required to be maintained pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of notice pursuant to this Section 3.3(a) to the date when the
Company shall make available a prospectus supplemented or amended to conform
with the requirements of the Securities Act.
(b) If all reports required to be filed by the
Company pursuant to the Exchange Act have not been filed by the required date
without regard to any extension, or if the consummation of any business
combination by the Company has occurred or is probable for purposes of Rule 3-05
or Article 11 of Regulation S-X under the Securities Act, upon written notice
thereof by the Company to the Holders, the rights of the Holders to acquire
Registrable Securities pursuant to the Issuance Registration Statement or to
offer, sell or distribute any Registrable Securities pursuant to any Demand
Registration Statement or Piggyback Registration Statement or to require the
Company to take action with respect to the registration of any Registrable
Securities pursuant to this Agreement shall be suspended until the date on which
the Company has filed such
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reports or obtained and filed the financial information required by Rule 3-05 or
Article 11 of Regulation S-X to be included or incorporated by reference, as
applicable, in the Issuance Registration Statement, the Demand Registration
Statement or the Piggyback Registration Statement and the Company shall notify
the record holders of Exchangeable LLC Units and the Holders as promptly as
practicable when such suspension is no longer required.
SECTION 3.4. REGISTRATION EXPENSES. In connection with any
registration statement required to be filed hereunder, the Company shall pay the
following registration expenses incurred in connection with the registration
(the "Registration Expenses"): (i) all registration and filing fees, (ii) fees
and expenses of compliance with securities or blue sky laws, (iii) printing
expenses, (iv) internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), (v) the fees and expenses incurred in connection with the listing of
the Registrable Securities on each securities exchange on which similar
securities issued by the Company are then listed, (vi) fees and disbursements of
counsel for the Company and the independent public accountants of the Company,
and (vii) the fees and expenses of any experts retained by the Company in
connection with such registration. The holders of Exchangeable LLC Units and the
Holders shall be responsible for the payment of any and all other expenses
incurred by them in connection with the registration and sale of Registrable
Securities, including, without limitation, brokerage and sales commissions,
underwriting fees, discounts and commissions attributable to the Registrable
Securities, fees and disbursements of counsel representing the holders of
Exchangeable LLC Units or the Holder, and any transfer taxes relating to the
sale or disposition of the Registrable Securities.
SECTION 3.5. INDEMNIFICATION BY THE COMPANY. The Company
agrees to indemnify and hold harmless each Selling Holder, its officers,
directors and agents, and each Person, if any, who controls such Selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any Demand Registration Statement or Piggyback
Registration Statement (individually, a "Resale Registration Statement") or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or arising out of any
untrue statement or alleged untrue statement of a material fact contained in any
prospectus contained in a Resale Registration Statement at the time it became
effective (a "Resale Prospectus"), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by such Selling Holder or on
such Selling Holder's behalf expressly for inclusion therein; provided, however,
that the Company will not be liable in any case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based upon any
untrue statement or omission contained in a Resale Prospectus which was
corrected in a supplement or amendment thereto if such claim is brought by a
purchaser of Registrable Securities from the Selling Holder and the Selling
Holder failed to deliver to such purchaser the supplement or amendment to the
Resale Prospectus in a timely manner.
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SECTION 3.6. INDEMNIFICATION BY HOLDERS OF REGISTRABLE
SECURITIES. Each Selling Holder of Registrable Securities covered by a Resale
Registration Statement agrees to indemnify and hold harmless the Company, its
officers, directors and agents and each Person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in Section 3.5
from the Company to Selling Holders, but only with respect to information
relating to such Selling Holder furnished in writing by such Selling Holder or
on such Selling Holder's behalf expressly for use in any Resale Registration
Statement or Resale Prospectus or any amendment or supplement thereto. Each
Holder also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act on substantially the same basis as that of
the indemnification of the Company provided in this Section 3.6.
SECTION 3.7. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Each
indemnified party shall give reasonably prompt notice to each 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 3.5 or 3.6 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 3.5 or 3.6 above. If the indemnifying party so
elects within a reasonable time after receipt of notice, the indemnifying party
may assume the defense of the action or proceeding at the 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 if the defendants in any such action or proceeding include both
the indemnified party and the indemnifying party and the indemnified party
reasonably determines based upon advice of legal counsel experienced in such
matters, that there may be legal defenses available to it which are different
from or in addition to those available to the indemnifying party, then the
indemnified party shall be entitled to separate counsel at the indemnifying
party's expense, which counsel shall be chosen by the indemnified party and
approved by the indemnifying party, which approval shall not be unreasonably
withheld; provided further, that it is understood that the indemnifying party
shall not be liable for the fees, charges and disbursements of more than one
separate firm. If the indemnifying party does not assume the defense, after
having received the notice referred to in the first sentence of this Section,
the indemnifying party will pay the reasonable fees and expenses of counsel for
the indemnified party; in that 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 assumes the defense of an action or
proceeding in accordance with this Section, the indemnifying party shall not be
liable for any fees and expenses of counsel for the indemnified party incurred
thereafter in connection with that action or proceeding except as set forth in
the proviso in the second sentence of this Section 3.7. Unless and until a final
judgment is rendered that an indemnified party is not entitled to the costs of
defense under the provisions of this Section, the indemnifying party shall
reimburse, promptly as they are incurred, the indemnified party's costs of
defense.
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SECTION 3.8. CONTRIBUTION.
(a) If the indemnification provided for in Section
3.5 or 3.6 hereof is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by indemnified party as a result of
such losses, claims, damages or liabilities as between the Company on the one
hand and each Selling Holder on the other, in such proportion as is appropriate
to reflect the relative fault of the Company and of each Selling Holder in
connection with such statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of each
Selling Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or such Selling Holder, and the Company's and the
Selling Holder's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(b) The Company and the Selling Holders agree that it
would not be just and equitable if contribution pursuant to this Section 3.8
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
Section 3.8(a). The amount paid or payable by an indemnifying party as a result
of the losses, claims, damages or liabilities referred to in Sections 3.5 and
3.6 hereof shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by the indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 3.8 no Selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities of such Selling Holder were offered to the public
exceeds the amount of any damages which such Selling Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 3.9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No
Holder may participate in any underwritten registration hereunder unless the
Holder (a) agrees to sell his or its Registrable Securities on the basis
provided in the applicable underwriting arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents in customary form as reasonably required under
the terms of such underwriting arrangements.
SECTION 3.10. HOLDBACK AGREEMENTS. Each Holder whose
securities are included in a Demand Registration Statement or Piggyback
Registration Statement agrees not to effect any sale or distribution of the
securities registered or any similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 under the Securities Act, during the 14 days prior to,
and during the 60-day period beginning on, the effective date of such
registration statement (except as part of such registration), if and to the
extent requested in writing by the Company in the case of a non-
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underwritten public offering or if and to the extent requested in writing by the
managing underwriter or underwriters in the case of an underwritten public
offering.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. SPECIFIC PERFORMANCE. The parties hereto
acknowledge 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 compel specific performance of the obligation of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction,
SECTION 4.2. AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given without the prior written consent of the
Company and the record owners of at least two-thirds (2/3) of the aggregate
number of the then outstanding Registrable Securities and Exchangeable LLC Units
(other than Exchangeable LLC Units held by the Company). No failure or delay by
any party to insist upon the strict performance of any covenant, duty, agreement
or condition of this Agreement or to exercise any right or remedy consequent
upon any breach thereof shall constitute a waiver of any such breach or any
other covenant, duty, agreement or condition.
SECTION 4.3. NOTICES. Any notice required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been
given (a) when delivered by hand or upon transmission by telecopier or similar
facsimile transmission device, (b) on the date delivered by a courier service,
or (c) on the third Business Day after mailing by registered or certified mail,
postage prepaid, return receipt requested, in any case addressed as follows:
(1) if to any Unitholder or any other record owner of
Exchangeable LLC Units or to any Holder, to 00000 Xxxxx Xxxxxx Xxxx., #000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Israel, or to such other address
and to such other Person as a Unitholder may hereafter notify the Company in
writing; and
(2) if to the Company, to Oasis Residential, Inc., 0000 Xxxx
Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxx 00000, or to such other address as the Company
may hereafter specify in writing.
SECTION 4.4. SUCCESSORS AND ASSIGNS. The rights and
obligations of the record owners of Exchangeable LLC Units and Holders under
this Agreement shall not be assignable by any record owner of Exchangeable LLC
Units or any Holder to any Person that is not a record owner of Exchangeable LLC
Units or a Holder, respectively. This Agreement shall be binding upon the
parties hereto, the Holders and their respective successors and assigns.
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SECTION 4.5. COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 4.6. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of California
without regard to the conflicts of law provisions thereof.
SECTION 4.7. SEVERABILITY. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
SECTION 4.8. ENTIRE AGREEMENT. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter of this Agreement.
SECTION 4.9. HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of any provision of this Agreement.
SECTION 4.10. ADDITIONAL PERSONS BECOMING PARTIES TO THIS
AGREEMENT. By asserting or participating in the benefits of registration of
Registrable Securities pursuant to this Agreement, each record owner of
Exchangeable LLC Units and each Holder agrees that it or he will be deemed a
party to this Agreement and be bound by each of its terms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
OASIS RESIDENTIAL, INC., A NEVADA
CORPORATION
By:
-------------------------------------------
Name:
------------------------------------------
Its:
-------------------------------------------
IFT PROPERTIES, LTD., A CALIFORNIA LIMITED
PARTNERSHIP
By:
-------------------------------------------
Xxxxxx X. Israel, its General Partner
ISCO, A CALIFORNIA GENERAL PARTNERSHIP
By: Cosa Mesa Associates, a California
general partnership, its Managing
Partner
By:
--------------------------------------
Xxxxxx Israel, its General
Partner
