Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of June 12, 2003 (the "Effective Date"), by and among United
Dominion Realty Trust, Inc., a Maryland corporation, as successor in interest to
United Dominion Realty Trust, Inc., a Virginia corporation ("UDRT"), and the
initial holders of the Series E Preferred Stock (as defined below) party hereto
(the "Initial Holders"). UDRT, the Initial Holders and the Holders, as defined
below, are sometimes referred to in this Agreement collectively as the "Parties"
and individually as a "Party."
RECITALS
WHEREAS, UDRT, UDR-Midlands Acquisition Corporation, a Delaware
corporation, a subsidiary of UDRT ("UDSUB"), Midlands Company ("Midlands") and
the stockholders of Midlands are parties to an Agreement and Plan of
Reorganization, dated as of May 2, 2003 (the "Merger Agreement"), pursuant to
which, among other things, the parties thereto have agreed that Midlands will
merge with and into UDSUB, with UDSUB as the surviving corporation, and each
outstanding share of common stock, par value $1.00 per share, of Midlands will
be converted into the right to receive 1,141.74 shares of Series E Cumulative
Convertible Preferred Stock, no par value, of UDRT (the "Series E Preferred
Stock"); and
WHEREAS, the execution and delivery of this Agreement by the Parties
is a condition to the closing of the transactions contemplated by the Merger
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and in the Merger Agreement and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"Business Days" shall mean days other than Saturdays or Sundays or
any days on which banking institutions in The City of New York are authorized or
obligated by law or regulation to close.
"Common Stock" shall mean the common stock, par value $1.00 per
share, of UDRT.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Holder" shall mean a person who owns, beneficially or otherwise,
the Series E Preferred Stock or Registrable Securities.
"Prospectus" shall mean the prospectus included in the Registration
Statement as amended or supplemented by any prospectus supplement, and all other
amendments and supplements thereto, including post-effective amendments, and all
material incorporated by reference in such prospectus.
"Registrable Securities" shall mean shares of Common Stock held by
the Holders and acquired upon the conversion of the Series E Preferred Stock and
shares of Common Stock issued or issuable with respect to such shares of Common
Stock by way of stock dividend or stock split or in
1
connection with a merger, consolidation, other reorganization or otherwise,
provided, however, that the Registrable Securities shall cease to be Registrable
Securities (i) when a Registration Statement with respect to such Registrable
Securities shall have been declared effective under the Securities Act and such
Registrable Securities shall have been disposed of pursuant to such Registration
Statement, (ii) when such Registrable Securities have been sold to the public
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the Securities Act or (iii) when such Registrable Securities shall have
ceased to be outstanding.
"Registration Statement" shall mean any registration statement of
UDRT under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Underwritten Offering" shall mean a distribution, registered
pursuant to the Securities Act, in which securities of UDRT are sold to one or
more underwriters for reoffering to the public.
Section 2. Registration of Resales.
(a) Within 30 days following the Effective Date, UDRT shall file
with the SEC a Registration Statement which shall provide for resales of all
Registrable Securities. The Registration Statement shall be on the appropriate
form and shall comply as to form in all material respects with the requirements
of the Securities Act and the rules and regulations promulgated thereunder,
permitting registration of such Registrable Securities for resale by the Holders
on a delayed or continuous basis during the Effective Period (as defined below)
pursuant to Rule 415 under the Securities Act, and designating the manner by
which such resale may be conducted (including, without limitation, one or more
Underwritten Offerings). UDRT shall use its best efforts to cause the
Registration Statement to be declared effective by the SEC as promptly as
practicable. UDRT will notify the Holders in writing when such Registration
Statement becomes effective.
(b) UDRT agrees to use its best efforts to keep the Registration
Statement (including the preparation and filing of any amendments and
supplements necessary for that purpose) continuously effective until the earlier
of (i) the date on which the Holders no longer hold any Registrable Securities
registered on such Registration Statement or (ii) the date on which all of the
Registrable Securities are eligible for sale pursuant to Rule 144(k) (or any
successor provision which permits the resale of the Registrable Securities
without registration under the Securities Act without regard to volume or other
restrictions other than restrictions similar to those set forth in Rule 144(k))
promulgated under the Securities Act (such period, the "Effective Period"). If
the Registration Statement ceases to be effective for any reason or at any time
during the Effective Period (other than because of the sale of all the
securities registered thereunder), UDRT shall use commercially reasonable
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof.
Section 3. Registration Procedures. In connection with UDRT's registration
obligations pursuant to Section 2, to permit the sale or resale of such
Registrable Securities, UDRT will:
(a) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep such
Registration Statement continuously
effective during the Effective Period; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders set forth in such Registration Statement as
so amended or in such Prospectus as so supplemented;
(b) notify the selling Holders and the underwriters, if any,
promptly, and (if requested by any such person) to confirm such notice in
writing:
(i) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to any Registration
Statement or for additional information;
(ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of any
Registration Statement or the initiation of any proceedings for that purpose or
any notification with respect to the suspension by any state securities
commission of the qualification or exemption from qualification of any of the
Registrable Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes;
(iii) if at any time the representations and warranties of UDRT
contained in any agreement contemplated by Section 3(j) (including any
underwriting agreement) cease to be true and correct in any material respect;
(iv) of the receipt by UDRT of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; or
(v) of the occurrence of any event or the existence of any fact
that makes any statement made in any Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any additions to or changes in any Registration Statement
or the Prospectus or any such document in order to make the statements therein
not misleading and, so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(c) use best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment;
(d) furnish to each selling Holder and each managing underwriter, if
any, without charge, at least one conformed copy of the Registration Statement
and any post-effective amendment thereto, including financial statements (but
excluding schedules, all documents incorporated or deemed incorporated therein
by reference and all exhibits, unless requested in writing by such Holder, such
Holder's counsel or such underwriter);
(e) deliver to each selling Holder and the underwriters, if any,
without charge as many copies of the Prospectus or Prospectuses relating to such
Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as such persons
may reasonably request;
(f) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling Holders, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any seller or underwriter reasonably
requests in writing; use best efforts to keep such registration or qualification
(or exemption therefrom) effective during the Effective Period and do any and
all other acts or things necessary or advisable to enable the disposition in
each such jurisdiction of the Registrable Securities covered by the Registration
Statement; provided, however, that UDRT will not be required to (i) qualify to
do business in any jurisdiction where it is not then so qualified or (ii) take
any action that would subject it to service of process in any such jurisdiction
where it is not then so subject;
(g) cooperate with the selling Holders and the underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and enable such Registrable Securities to be
in such denominations and registered in such names as the managing underwriters,
if any, shall request at least two business days prior to any sale of
Registrable Securities to the underwriters;
(h) upon the occurrence of any event contemplated by Section
3(b)(v), promptly prepare a supplement or post-effective amendment to the
Registration Statement so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, the related Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(i) use its best efforts to cause all Registrable Securities covered
by the Registration Statement to be either (i) listed on each securities
exchange, if any, on which similar securities issued by UDRT are then listed or,
if no similar securities issued by UDRT are then so listed, on the New York
Stock Exchange or another national securities exchange if the securities qualify
to be so listed or (ii) authorized to be quoted on Nasdaq or the National Market
System of Nasdaq, if the securities qualify to be so quoted;
(j) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably, request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(k) in the case of an underwritten offering, upon request of any
Holder, furnish to each selling Holder and each underwriter where an
underwriting agreement is entered into, if any, in such substance and scope as
they may reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings for selling security holders,
upon the date of closing of any sale of Registrable Securities in an
Underwritten Offering;
(i) an opinion of counsel representing UDRT, dated the date of such
closing, for the purposes of such registration, addressed to the underwriters
and to such Holder, including the following statements: (A) the Registration
Statement has become effective under the Securities Act, (B) to the best
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act,
(C) the Registration Statement, the related Prospectus and each amendment or
supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements or other financial or statistical data
contained therein), (D) as of the date of the opinion and as of the effective
date of the Registration Statement and the Prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make
statements therein not misleading in the light of the circumstances existing at
the time that such documents were filed with the SEC (except that such counsel
need not express an opinion with respect to financial statements or other
financial or statistical information), (E) that UDRT was organized in conformity
with the requirements for qualification as a real estate investment trust under
the Internal Revenue Code of 1986, as amended (the "Code") commencing with its
taxable year ending December 31, 19__, and its proposed method of operation will
enable it to meet the requirements for qualification and taxation as a real
estate investment trust under the Code, and (F) covering such matters as are
customarily covered in legal opinions to underwriters in connection with
underwritten offerings of securities and such other matters as are customary in
such opinions and are reasonably requested by counsel for the underwriters or by
such Holder or its counsel; and
(ii) a customary comfort letter from UDRT's independent public
accountants (and from any other accountants whose report is contained or
incorporated by reference in the Registration Statement), dated the date of such
closing, in the customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with underwritten
offerings of securities, addressed to the underwriters and to such seller,
including, but not limited to the following: (A) that they are independent
public accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, (B) the financial statements of UDRT included in
the Registration Statement or the Prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, (C) such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request, and (D) covering such other matters as are
customary in such letters and are reasonably requested by counsel for the
underwriters or by such Holder or its counsel;
(l) use best efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at any
time UDRT is not required to file such reports, it will, upon the request of any
of the Holders of the Registrable Securities, make publicly available other
information so long as necessary to permit sales of Registrable Securities
pursuant to Rule 144 and 144A; will take such further action as any Holder of
the Registrable Securities may reasonably request, to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A; and upon the request of any Holder shall deliver
to the such Holder a written statement as to whether it has complied with this
Section 3(l);
(m) furnish to each of Holder before filing with the SEC, a copy of
the Registration Statement and copies of any Prospectus included therein, which
documents will be subject to the review of such Holder, for a period of ten
Business Days, and UDRT will not file the Registration Statement or Prospectus
to which the Holder, shall reasonably object within such ten Business Day period
without first making revisions that are reasonably acceptable to each Holder.
UDRT shall also furnish to each of the Holder before filing with the SEC, if
reasonably practicable, or otherwise promptly after filing with the SEC, copies
of any amendments to the Registration Statement or supplements to the
Prospectus, and shall make UDRT's representatives reasonably available for
discussion of such amendments or supplements and make such changes in such
amendments or supplements prior to the filing thereof, if reasonably
practicable, or prepare and file further amendments or supplements, as the
Holder, may reasonably
request (it being understood that a request to correct a material misstatement
or omission is an example of one such reasonable request);
(n) make available at UDRT's offices at reasonable times and on
reasonable notice for inspection by any selling Holder, any underwriter
participating in any distribution pursuant to the Registration Statement, and
any attorney or accountant retained by such selling Holders or any of the
underwriter, all financial and other records, pertinent corporate documents and
properties of UDRT as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause UDRT's officers,
directors, managers and employees to supply all information reasonably requested
by any such representative or representatives of the selling Holders,
underwriter, attorney or accountant in connection with the Registration
Statement after the filing thereof and before its effectiveness; provided,
however, that each such selling Holders, underwriter, attorney or accountant
will be required to agree in writing, pursuant to a confidentiality agreement in
form and substance reasonably acceptable to UDRT and its counsel, that records
and information obtained by it as a result of such inspections or obtained from
the Registration Statement or Prospectus prior to filing such document with the
SEC, shall be deemed confidential and shall not be used by it as the basis for
any market transactions in the securities of UDRT unless and until such is made
generally available to the public through no fault of such selling Holder,
underwriter, attorney or accountant of a selling Holder; and
(o) if reasonably requested by any selling Holder or any
underwriter, promptly incorporate in the Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter, if any, may request to have
included therein, including, without limitation: (A) information relating to the
"Plan of Distribution" of the Registrable Securities and (B) any other terms of
the offering of the Registrable Securities to be sold in such offering;
provided, however, that with respect to any information requested for inclusion
by a selling Holder, this clause (p) shall apply only to such information that
relates to the Registrable Securities to be sold by such selling Holder; and
make all required filings of such Prospectus supplement or post-effective
amendment as soon as reasonably practicable after the UDRT is notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
Section 4. Information. UDRT may require each selling Holder of
Registrable Securities as to which any registration is being effected pursuant
to Section 2 to furnish to UDRT such information regarding the distribution of
such Registrable Securities as UDRT may, from time to time, reasonably request
in writing and UDRT may exclude from such registration the Registrable
Securities of any selling Holder who unreasonably fails to furnish such
information within a reasonable time after receiving such request. Each selling
Holder promptly will notify UDRT of the occurrence of any event that makes any
of such information untrue in any material respect or that requires making a
change in such information so that such information will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated or necessary to make the statement therein, in light of the circumstances
under which they were made, not misleading.
Section 5. Suspension.
(a) Each Holder will be deemed to have agreed by virtue of its
acquisition of Registrable Securities that, in connection with any registrations
of Registrable Securities effected pursuant to Section 2, upon receipt of any
notice ("Suspension Notice"), from UDRT that any event of the kind described in
Section 3(b) has occurred or that UDRT's board of directors has determined in
good faith that the Registration Statement should be suspended UDRT's obligation
to cause the Registration Statement to become effective, to keep such
Registration Statement effective or to amend or supplement such Registration
Statement shall be suspended and such Holder will discontinue, and will use
commercially reasonable efforts to cause any underwriter to discontinue,
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus (a "Black-Out") until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 3(h); or
(ii) such Holder is advised in writing (the "Advice") by UDRT
that the use of the applicable Prospectus may be resumed, and such Holder has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus.
Except as expressly provided herein, there shall be no limitation with regard to
the number of Suspension Notices that UDRT is entitled to give pursuant to this
Section 5.
(b) In the event UDRT shall give a Suspension Notice, the time
periods prescribed in Section 2, if applicable, will be extended by the number
of days during the time period from and including the date of the giving of such
notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement shall have received (i) the copies of the
supplemented or amended Prospectus contemplated by Section 3(h) or (ii) the
Advice.
Section 6. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by UDRT will be borne by UDRT
whether or not the Registration Statement becomes effective. Such fees and
expenses will include, without limitation:
(a) all registration and filing fees and expenses (including filings
made with the NASD);
(b) all fees and expenses of compliance with federal securities and
state "blue sky" or securities laws;
(c) all printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing such
reasonable number of Prospectuses as are requested by the selling Holders);
(d) all messenger, telephone and delivery expenses incurred by UDRT;
(e) all fees and disbursements of counsel to UDRT; and
(f) all fees and disbursements of all independent certified public
accountants referred to in Section 3(k)(ii) (including the expenses of any
special audit and "comfort" letters required by or incident to such
performance).
In addition, UDRT will pay internal expenses (including without limitation all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange or quotation system on which similar securities issued
by UDRT are then listed and the fees and expenses of any person, including
special experts, retained by UDRT. In no event, however, will UDRT be
responsible for any underwriting discount or selling commission with respect to
any sale of Registrable Securities pursuant to this Agreement or the fees of any
legal counsel representing the Holder(s).
Section 7. Indemnification.
(a) UDRT shall indemnify and hold harmless each Holder, each person,
if any, who controls such Holder within the meaning of the Securities Act, and
their respective officers, directors, partners and employees (each an
"Indemnified Holder Party") from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, including, but
not limited to, any loss, claim, damage, liability or action relating to resales
of the Registrable Securities, (the "Liabilities") to which any such Indemnified
Holder Party may become subject, insofar as such Liabilities arise out of or are
based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or Prospectus or any
amendment or supplement thereto, or (B) any blue sky application or other
document or any amendment or supplement thereto prepared or executed by UDRT (or
based upon written information furnished by or on behalf of UDRT expressly for
use in such blue sky application or other document or amendment or supplement)
filed in any jurisdiction specifically for the purpose of qualifying any or all
of the Registrable Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a "Blue Sky
Application");
(ii) 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 under which they were made, not misleading; or
(iii) any violation by UDRT of any rule or regulation promulgated
under the Securities Act or any state securities law applicable to UDRT and
relating to action or inaction required of UDRT in connection with any such
registration.
In connection with such indemnification, UDRT shall reimburse each
such Indemnified Holder Party, for any reasonable legal and any other reasonable
expenses incurred in connection with investigating, defending, preparing to
defend or settling any such Liabilities as such expenses are incurred, provided,
however, that UDRT shall not be liable in any such case to the extent that any
such Liabilities arise out of, or are based on, any untrue statement or omission
made in (A) a Registration Statement or Prospectus or amendment or supplement
thereto, or (B) a Blue Sky Application in reliance upon and in conformity with
written information furnished to UDRT by or on behalf of such Indemnified Holder
Party specifically for use in such Registration Statement or Prospectus or Blue
Sky Application.
(b) Each Holder shall, if Registrable Securities held by or issuable
to such Holder are included in the securities as to which such registration is
being effected, indemnify and hold harmless UDRT, each person who controls UDRT,
and each of their respective officers, directors and partners, against all
Liabilities arising out of or based upon:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement or Prospectus; or
(ii) any omission (or alleged omission) to state therein 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;
and such Holder shall reimburse UDRT, its directors, officers, partners and
employees for any reasonable legal or any other reasonable expenses incurred in
connection with investigating, defending, preparing to defend or settling any
Liabilities, in each case to the extent, but only to the extent, that such
untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in the Registration Statement Prospectus in reliance upon and in conformity
with written information furnished to UDRT by an instrument duly executed by
such Holder specifically for use therein; provided, however, the total amount
for which any Holder shall be liable under this Section 7(b) shall not in any
event exceed the net proceeds received by such Holder from the sale of
Registrable Securities sold by such Holder in such registration.
(c) Each person entitled to indemnification under this Section 7
(the "Indemnified Party") shall give notice to the Party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claims as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
Indemnified Party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, unless, but only to the extent
that, such failure resulted in actual detriment to the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect of such claim or litigation.
(d) Notwithstanding the foregoing, to the extent that the provisions
on indemnification contained in the underwriting agreement entered into among
the Holders, UDRT and the underwriters in connection with an underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall be controlling as to the Registrable Securities
included in the public offering; provided, however, that if, as a result of this
Section 7(d), any Holder, its officers, directors, and partners and any person
controlling such Holder is held liable for an amount which exceeds the aggregate
proceeds received by such Holder from the sale of Registrable Securities
included in a registration, as provided in Section 7(b) above, pursuant to such
underwriting agreement (the "Excess Liability"), UDRT shall reimburse any such
Holder for such Excess Liability.
(e) If the indemnification provided for in this Section 7 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
thereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other hand in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and the Indemnified
Party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the Parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount any Holder shall be obligated to
contribute pursuant to this Section 7(e) shall be limited to an amount equal to
the proceeds to such Holder of the Registrable Securities sold pursuant to the
Registration Statement which gives rise to such obligation to contribute (less
the aggregate amount of any damages which the Holder has otherwise been required
to pay in respect of such loss, claim, damage, liability or action or any
substantially similar loss, claim, damage, liability or action arising from the
sale of such Registrable Securities).
(f) The indemnification provided by this Section 7 shall be a
continuing right to indemnification and shall survive the registration and sale
of any securities by any person entitled to indemnification hereunder and the
expiration or termination of this Agreement.
Section 8. Miscellaneous.
(a) Remedies. In the event of a breach by any Party of its
obligations under this Agreement, each Party, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Each Party
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any provision of this Agreement and
hereby further agrees that, in the event of any action for specific performance
in respect of such breach, it will waive the defense that a remedy at law would
be adequate.
(b) Amendments. This Agreement may only be amended, modified or
supplemented with the prior written consent of UDRT and the Holders of a
majority of the aggregate of the Series E Preferred Stock and Registrable
Securities then outstanding. Upon the effectuation of each such amendment or
modification, UDRT shall as soon as reasonably practicable give written notice
thereof to the Holders who have not previously consented thereto in writing.
(c) Notices. Any notice, consent or approval required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have
been given upon (i) hand delivery, (ii) one (1) business day after being
deposited with a nationally recognized overnight courier service, with receipt
acknowledgement requested, (iii) upon receipt if transmitted by confirmed
facsimile, or (iv) three (3) business days after deposit if deposited in the
United States first-class mail, registered or certified mail, postage prepaid,
return receipt required, and addressed as follows (or to such other address as
is provided by a Party by like notice):
(i) If to an Initial Holder, at the address for such Initial
Holder set forth below such Initial Holder's signature on the signature pages
hereof;
(ii) If to a Holder who is not otherwise an Initial Holder, at
the address set forth on the counterpart signature page to this Agreement
provided by such Holder pursuant to Section 8(g) below, with copies to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: J. Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
or
(iii) If to UDRT:
United Dominion Realty Trust, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn.: W. Xxxx Xxxxxx
Telecopy: 000-000-0000
With copies to: Xxxxxxxx & Xxxxxxxx LLP
000 00xx Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxx
Telecopy: 000-000-0000
(d) Merger or Consolidation. If UDRT is a party to any merger or
consolidation pursuant to which the Registrable Securities are converted into or
exchanged for securities or the right to receive securities of any other person
("Conversion Securities"), the issuer of such Conversion Securities shall assume
(in a writing delivered to all Holders) all obligations of UDRT hereunder. UDRT
will not effect any merger or consolidation described in the immediately
preceding sentence unless the issuer of the Conversion Securities complies with
this Section 8(d).
(e) Adjustments Affecting Registrable Securities. Other than as
required by law, UDRT shall not take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(f) No Inconsistent Agreements. UDRT will not, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. UDRT has not previously entered
into any agreement (which has not expired or been terminated) granting any
registration rights with respect to its securities to any Person which rights
conflict with the provisions hereof.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
Parties, including without limitation and without the need for an express
assignment, to subsequent Holders of Registrable Securities; provided, however,
that (i) this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Registrable Securities from such Holder in compliance with any
restrictions on transfer applicable thereto, and (ii) nothing contained herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Merger Agreement. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement or applicable law.
(h) Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signatures on behalf of all Parties appear on each counterpart of this
Agreement. All counterparts of this Agreement shall collectively
constitute a single agreement. Signatures to this Agreement may be transmitted
by facsimile and such signatures shall be deemed to be originals.
(i) Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning.
(j) Governing Law. This Agreement will be governed by and construed
in accordance with the internal laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
(k) Severability. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
(l) Terminate. This Agreement shall terminate with respect to each
Holder and transferee permitted under this Agreement, including, without
limitation, any rights of such Holder or transferee pursuant to Section 8(b), on
the date upon which such Holder or transferee shall be able to dispose of all of
their remaining Registrable Securities pursuant to Rule 144(k) of the Securities
Act.
(m) Entire Agreement. This Agreement constitutes the entire
agreement among the Parties and supersedes all prior agreements and
understandings among the Parties.
{Signature Pages Follow}
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this Agreement as of the Effective Date.
United Dominion Realty Trust, Inc.
By: /s/ W. Xxxx Xxxxxx
-------------------------------------
Name: W. Xxxx Xxxxxx
Title: Senior Executive Vice President
THE XXXXXXXXX FAMILY TRUST DATED APRIL
5, 1990, AS AMENDED
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
XXXXX X. XXXXXXXXX,
Its Trustee
XXXXXXX XXXXXXXXX XXXXXXXX 2001
REVOCABLE TRUST
By: /s/ Xxxxxxx Xxxxxxxxx Xxxxxxxx
-------------------------------------
XXXXXXX XXXXXXXXX XXXXXXXX,
Its Trustee
THE GRANDCHILDREN'S POT TRUST CREATED
UNDER THE XXXXXXX XXXXXXXX 2001 XXXXX
TRUST u/d/t 6/15/01
By: /s/ Xxxx Xxxxx Xxxxxxxx
-------------------------------------
XXXX XXXXX XXXXXXXX,
Its Trustee
THE XXXXXX X. XXXXXXXXX, XX., GRANTOR EXEMPT
TRUST FBO XXXXXX X. XXXXXXXXX III, u/d/t
DATED 10/21/01
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
XXXXXX XXXXXXXXX
Its Trustee
THE XXXXXX X. XXXXXXXXX, XX., GRANTOR EXEMPT
TRUST FBO XXXXXX XXXXXXXXX XXXXX u/d/t
DATED 10/21/01
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
XXXXXX XXXXXXXXX
Its Trustee
THE XXXXXX X. XXXXXXXXX, XX., GIFT EXEMPT
TRUST FBO XXXXXX X. XXXXXXXXX III, u/d/t
DATED 10/21/01
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
XXXXXX XXXXXXXXX
Its Trustee
THE XXXXXX X. XXXXXXXXX, XX., GIFT EXEMPT
TRUST FBO XXXXXX XXXXXXXXX XXXXX, u/d/t
DATED 10/21/01
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
XXXXXX XXXXXXXXX
Its Trustee
THE XXXXXX X. XXXXXXXXX, XX., TRUST
u/d/t 5/1/96, AS AMENDED AND RESTATED
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------------
XXXXXX X. XXXXXXXXX, XX.
Its Trustee
THE XXXXXXX XXX XXXXXXXXX XX., TRUST,
ESTABLISHED 10/15/79
By: /s/ Xxxxxxx Xxx Xxxxxxxxx, Xx.
-------------------------------------
XXXXXXX XXX XXXXXXXXX, XX.
Its Trustee
THE XXXXX XXXXXXX XXXXXXXXX TRUST,
ESTABLISHED 10/15/79
By: /s/ Xxxxxxx Xxx Xxxxxxxxx, Xx.
-------------------------------------
XXXXXXX XXX XXXXXXXXX, XX.
Its Trustee
THE XXXXXXX XXX XXXXXXXXX TRUST,
ESTABLISHED 10/15/79
By: /s/ Xxxxxxx Xxx Xxxxxxxxx, Xx.
-------------------------------------
XXXXXXX XXX XXXXXXXXX, XX.
Its Trustee
THE XXXXX XXXX XXXXXXXXX TRUST,
ESTABLISHED 10/15/79
By: /s/ Xxxxxxx Xxx Xxxxxxxxx, Xx.
-------------------------------------
XXXXXXX XXX XXXXXXXXX, XX.
Its Trustee