Exhibit 10.11
FORM OF
REGISTRATION RIGHTS AGREEMENT
Dated as of December 1, 1997
by and among
XXXXXX-XXXXX PROPERTIES, INC.
AND
THE HOLDERS LISTED ON
SCHEDULE A HEREOF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of ________________, by and among Xxxxxx-Xxxxx Properties, Inc.
(the "Company") and the persons listed on Schedule A attached hereto, including
their successors, assigns and transferees (each referred to herein as a "Holder"
and collectively as the "Holders").
WHEREAS, each of the Holders will become the owner of Units (as defined
below) in the Xxxxxx-Xxxxx Properties Limited Partnership (the "Operating
Partnership") in connection with the sale of their interests in certain
properties pursuant to the Master Agreement of Merger and Acquisition by and
among the Company, the Operating Partnership and the individuals and limited
liability companies listed therein dated September 22, 1997 (the "Merger
Agreement") and the Exchange Option Agreements by and among the Operating
Partnership, the Company and the owners of the Chrysson Affiliates listed
therein dated September 22, 1997 (the "Exchange Agreements");
WHEREAS, in order to induce the Holders to enter into the Merger
Agreement and the Exchange Agreements, the Company has agreed to provide the
Holders with the registration rights set forth in Section 2 hereof.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Affiliate" shall have the meaning set forth at Rule 144 of the
Securities Act or any successor regulation.
"Common Stock" shall mean the Common Stock, par value $.01 per share,
of the Company.
"Company" shall have the meaning set forth in the preamble and also
shall include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Agreements" shall have the meaning set forth in the preamble.
"Holder" shall have the meaning set forth in the preamble, including
any successors, assigns or transferees of the Units.
"Merger Agreement" shall have the meaning set forth in the preamble.
"Operating Partnership" shall have the meaning set forth in the
preamble and also shall include the Operating Partnership's successors.
"Partnership Agreement" shall mean the Agreement of Limited Partnership
of the Operating Partnership, as amended.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization or other legal entity or a government or agency or
political subdivision thereof.
"Private Placement" shall mean the issuance and sale of Units to the
Holders pursuant to the transactions described in the Merger Agreement and the
Exchange Agreements, but not including Shares issuable upon redemption of Units.
"Prospectus" shall mean the prospectus included in the Shelf
Registration Statement, including any preliminary prospectus, and all amendments
and supplements thereto, including any supplement relating to the terms of the
offering of any portion of the Registrable Securities covered by the Shelf
Registration Statement, and in each case including all materials incorporated by
reference therein.
"Redemption Right" shall mean the right of a Holder under the
Partnership Agreement to cause its Units to be redeemed for cash or Shares as
more specifically described therein.
"Registrable Securities" shall mean the Shares, excluding (i) Shares
held by Holders who are not Affiliates which were issued in a public offering
pursuant to the Shelf Registration Statement and (ii) Shares that have been
disposed of under the Shelf Registration Statement or any other effective
registration statement, (iii) Shares sold or otherwise transferred pursuant to
Rule 144 under the Securities Act, and (iv) Shares eligible for sale pursuant to
Rule 144(k) of the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or National Association of Securities Dealers, Inc.
("NASD") registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with qualification of
any of the Registrable Securities under any state securities or blue sky laws
and the preparation of a blue sky memorandum) and compliance with the rules of
the NASD, (iii) all expenses of any Persons in preparing, assisting in
preparing, word processing, printing and distributing the Shelf Registration
Statement, any Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges pursuant to Section 3(k)
hereof, and (v) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of any
special audits or
"cold comfort" letters required by or incident to such performance and
compliance. Registration Expenses shall specifically exclude underwriting
discounts and commissions, the fees and disbursements of counsel representing a
selling Holder and transfer taxes, if any, relating to the sale or disposition
of Registrable Securities by a selling Holder, all of which shall be borne by
such Holder in all cases.
"Registration Statement" or the "Shelf Registration Statement" shall
mean a registration statement of the Company (and any other entity required to
be a registrant with respect to such registration statement pursuant to the
requirements of the Securities Act) that covers the issuance of Shares and, if
applicable, the sale of Registrable Securities by any Holder pursuant to Rule
415 under the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments (including post-effective amendments) to such
registration statement, all exhibits thereto and all materials incorporated by
reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shares" shall mean Common Stock issued or issuable to the Holders upon
redemption of the Units.
"Suspension Event" shall have the meaning set forth in Section 4(a)
hereof.
"Units" shall mean the limited partnership interests of the Operating
Partnership issued to the Holders in the Private Placement.
2. Shelf Registration Under the Securities Act.
(a) Filing of Shelf Registration Statement. If the Company
satisfies the Redemption Right of a Holder under the Partnership
Agreement through the issuance of Shares, the Company shall use its
best efforts to cause such Shares to be freely tradeable by any Holder
upon their receipt. Due to current regulations under the Securities Act
and SEC staff positions, the Company shall have satisfied its
obligations under the preceding sentence if it (i) files the Shelf
Registration Statement covering the issuance of the Shares within 54
weeks of the issuance of the Units and (ii) uses its best efforts to
cause the Shelf Registration Statement to be declared effective
promptly. If permitted by the SEC, such Shelf Registration Statement
shall also register the resale of Shares by Holders who are Affiliates
of the Company at the time of filing. The Company agrees to use its
best efforts to keep the Shelf Registration Statement continually
effective until the date on which the Shares covered by such Shelf
Registration Statement are no longer Registrable Securities.
(b) Expenses. The Company shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a). Each
Holder shall pay all underwriting discounts and commissions, the fees
and disbursements of counsel
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representing such Holder and transfer taxes, if any, relating to the
sale or disposition of such Holder's Registrable Securities pursuant to
the Shelf Registration Statement or Rule 144 under the Securities Act.
(c) Inclusion in Shelf Registration Statement. The Holders
agree to provide as promptly as practicable the information reasonably
requested by the Company in connection with the Registration Statement.
Any Holder who does not provide the information reasonably requested by
the Company in connection with the Shelf Registration Statement, shall
not be entitled to have its Registrable Securities included in the
Shelf Registration Statement.
(d) Unavailability of Rule 415 or Changes in Securities Laws.
Notwithstanding anything herein to the contrary, if the Company is
ineligible or unable under the rules and regulations of the Securities
Act and the positions of the staff of the SEC to register the issuance
of the Shares or the resale of the Registrable Securities as
contemplated by Section 2(a) pursuant to a continuous Shelf
Registration Statement or if the Company is unable to comply with
Section 2(a) hereof due solely to changes in the Securities Act, the
regulations thereunder or SEC staff positions, the Company will have
satisfied its obligations under this Section 2 if it uses its
reasonable efforts to register for public resale each Holder's
Registrable Securities at such time as such Holder provides written
notice to the Company of such Holder's desire to sell such Registrable
Securities.
(e) Resale of Shares. If, at the time of disposition of Shares
by an Affiliate, a Resale Registration Statement covering the resale of
such Shares is effective, (x) such disposition shall be effected
pursuant to such Shelf Registration Statement and accompanied by the
Prospectus or pursuant to Rule 144 under the Securities Act, and (y)
the transferee of such Shares shall not be entitled to the registration
rights set forth in Section 3 hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Shelf Registration Statement contemplated by Section 2 hereof, the Company
shall:
(a) prepare and file with the SEC, within the time period set
forth in Section 2 hereof, the Shelf Registration Statement, which
Shelf Registration Statement (i) shall be available for the issuance of
the Shares and sale of the Registrable Securities in accordance with
the intended method or methods of distribution by the selling Holders
thereof, if any, and (ii) shall comply as to form and substance in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith;
(b) (i) prepare and file with the SEC such amendments to such
Registration Statement as may be necessary to keep such Registration
Statement effective for the applicable period; (ii) cause the
Prospectus to be amended or
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supplemented as required and to be filed as required by Rule 424 or any
similar rule that may be adopted under the Securities Act; (iii)
respond as promptly as practicable to any comments received from the
SEC with respect to the Shelf Registration Statement or any amendment
thereto; and (iv) if applicable, comply with the provisions of the
Securities 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 thereof;
(c) furnish to each Holder of Registrable Securities or its
designee, without charge, as many copies of each Prospectus and any
amendment or supplement thereto and such other documents as such Holder
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities; the Company consents to the
use of the Prospectus and any amendment or supplement thereto by each
such Holder of Registrable Securities in connection with the offering
and sale of the Registrable Securities covered by the Prospectus or
amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Securities by the time the Shelf Registration Statement is
declared effective by the SEC under all applicable state securities or
blue sky laws of such jurisdictions in the United States and its
territories and possessions as any Holder of Registrable Securities
covered by the Shelf Registration Statement shall request in writing,
keep each such registration or qualification effective during the
period such Registration Statement is required to be kept effective,
and do any and all other acts that may reasonably be necessary to
enable such Holder to dispose of such Registrable Securities owned by
such Holder in each such jurisdiction; provided, however, that in
connection therewith, the Company shall not be required to (i) qualify
as a foreign corporation to do business or to register as a broker or
dealer in any such jurisdiction where it otherwise would not be
required to qualify or register but for this Section 3(d), (ii) subject
itself to taxation in any such jurisdiction, or (iii) file a general
consent to service of process in any such jurisdiction wherein it is
not otherwise required to do so;
(e) notify each Holder of Registrable Securities promptly and,
if requested by such Holder, confirm in writing (i) when the
Registration Statement and any post-effective amendment thereto have
become effective, (ii) when any amendment or supplement to the
Prospectus has been filed with the SEC, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of the Registration Statement or any part thereof or the
initiation of any proceedings for that purpose, (iv) if the Company
receives any notification with respect to the suspension of the
qualification of the Registrable Securities for offer or sale in any
jurisdiction or the initiation of any proceeding for such purpose, and
(v) of the happening of any event during the period the Registration
Statement is effective as a result of which (A) such Registration
Statement contains any untrue statement of a material fact or omits to
state any
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material fact required to be stated therein or necessary to make the
statements therein not misleading or (B) the Prospectus, as then
amended or supplemented, contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration
Statement, or any part thereof, as promptly as possible;
(g) furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of the Shelf Registration Statement
and any post-effective amendment thereto and any Prospectus or
amendment or supplement thereto, (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) at any time when a Prospectus relating to a Registration
Statement covering Registrable Securities is required to be delivered
under the Securities Act, the Company shall immediately notify the
Holder of the happening of any event as a result of which the
Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. In such event, the Company shall promptly prepare
and furnish to the Holder a reasonable number of copies of a supplement
to or an amendment of such Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of Registrable Securities, such
Prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is
a part to reflect such amendment or supplement;
(i) make available for inspection by the Holders of
Registrable Securities and any counsel, accountants or other
representatives retained by such Holders all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the officers, directors and employees of the Company to
supply all such records, documents or information reasonably requested
by such Holders' counsel, accountants or representatives in connection
with the Shelf Registration Statement; provided, however, that such
records, documents or information which the Company determines in good
faith to be confidential and notifies such Holders' counsel,
accountants or representatives in writing that such records, documents
or information are confidential shall not be disclosed by such Holders'
counsel, accountants or representatives unless (i) such disclosure is
necessary to avoid or correct a material misstatement or omission in a
Registration Statement and such disclosure is not made during a
Suspension Event, (ii) such disclosure is ordered pursuant to a
subpoena or other order from a court
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of competent jurisdiction, or (iii) such records, documents or
information become generally available to the public other than through
a breach of this Agreement;
(j) upon five business days' notice, the Company shall file
any supplement or post-effective amendment of the Registration
Statement with respect to such Holder's interests in or plan of
distribution of Registrable Securities that is reasonably necessary to
permit the sale of the Holder's Registrable Securities pursuant to the
Resale Shelf Registration Statement;
(k) use its best efforts to cause all Registrable Securities
to be listed on any securities exchange on which similar securities
issued by the Company are then listed or, if no such securities are
then listed, on an exchange selected by the Company, if such listing is
then permitted under the rules of such exchange; or if such listing is
not practicable, to secure designation of such securities as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1
under the Exchange Act; or, failing that, to secure NASDAQ
authorization for such securities; and, without limiting the foregoing,
to arrange for at least two market makers to register as such with
respect to such securities with the NASD; and to provide a transfer
agent and registrar for such Registrable Securities not later than the
effective date of such registration statement;
(l) make available to its security holders, as soon as
reasonably practicable, an earnings statement covering at least 12
months, which statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder.
The Company may require each Holder of Registrable Securities to
furnish to the Company in writing such information regarding the proposed
distribution by such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 2 hereof and
this Section 3, each Holder covenants and agrees that (i) it will not offer or
sell any Registrable Securities under the Shelf Registration Statement until it
has received copies of the Prospectus as then amended or supplemented as
contemplated by Section 3(g) and notice from the Company that the Registration
Statement and any post-effective amendments thereto have become effective as
contemplated by Section 3(e); (ii) upon receipt of any notice from the Company
contemplated by Section 4(a) or Section 3(e) (in respect of the occurrence of an
event contemplated by clause (v) of Section 3(e)), such Holder shall not offer
or sell any Registrable Securities pursuant to the Shelf Registration Statement
until such Holder receives copies of the supplemented or amended Prospectus
contemplated by Section 3(h) hereof and receives notice that any post-effective
amendment has become effective, and, if so directed by the Company, such Holder
will deliver to the Company (at the expense of the Company) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus as amended or supplemented at the time of receipt of such
notice; (iii) such Holder and any of its officers, directors or affiliates, if
any, will comply with the provisions of Regulation M under the Exchange Act as
applicable to them in connection with
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sales of Registrable Securities pursuant to the Shelf Registration Statement;
and (iv) such Holder and any of its officers, directors or affiliates, if any,
will enter into such written agreements as the Company shall reasonably request
to ensure compliance with clause (iii) above.
4. Suspension of Registration Rights; Black-out Period.
(a) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use its
best efforts to cause the Registration Statement and any filings with
any state securities commission to become effective or to amend or
supplement the Registration Statement shall be suspended in the event
and during such period that unforseen circumstances (including without
limitation (i) an underwritten primary offering by the Company if the
Company is advised by the underwriters that sale of Registrable
Securities under the Registration Statement would have a material
adverse effect on the primary offering or (ii) pending negotiations
relating to, or consummation of, a transaction or the occurrence of an
event that would require additional disclosure of material information
by the Company in the Registration Statement or such filing, as to
which the Company has a bona fide business purpose for preserving
confidentiality or which renders the Company unable to comply with SEC
requirements) (such unforeseen circumstances being hereinafter referred
to as a "Suspension Event") would make it impractical or unadvisable to
cause the Registration Statement or such filings to become effective or
to amend or supplement the Registration Statement, but such suspension
shall continue only for so long as such event or its effect is
continuing but in no event will that suspension exceed 60 days. The
Company shall notify the Holders of the existence and, in the case of
circumstances referred to in clause (i) of this Section 4(a), nature of
any Suspension Event. The Company may deliver only two such notices
within any 12-month period.
(b) Following the effectiveness of the Registration Statement
and the filings with any state securities commission, the Holders agree
that they will not effect any sales of the Registrable Securities
pursuant to the Registration Statement or any such filings at any time
after they have received notice from the Company to suspend sales as a
result of the occurrence or existence of any Suspension Event or so
that the Company may correct or update the Registration Statement or
such filing. The Holder may recommence effecting sales of the Shares
pursuant to the Registration Statement or such filings after the
earlier of 60 days or receipt of further notice to such effect from the
Company, which notice shall be given by the Company not later than five
days after the conclusion of any such Suspension Event. The Company may
deliver only two such notices within any 12-month period.
5. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder and its officers and directors
and each
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Person, if any, who controls any Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to which such
Holder, officer, director or controlling Person may become
subject under the Securities Act or otherwise (A) that arises
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf
Registration Statement (including all documents incorporated
therein by reference) or any amendment thereto, or the
omission or alleged omission therein of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or (B) that arises out of or
is based upon any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (including all
documents incorporated therein by reference) or any amendment
or supplement thereto, or the omission or alleged omission
therein of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or alleged untrue
statement or any omission or alleged omission, if such
settlement is effected with the written consent of the
Company; and
(iii) subject to the limitations set forth in Section
5(c), against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel),
reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each
case whether or not a party, or any claim whatsoever based
upon any such untrue statement or alleged untrue statement or
omission or alleged omission, to the extent that any such
expense is not paid under Subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section
5(a) shall not apply to any Holder with respect to any loss, liability,
claim, damage or expense that arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement or any amendment thereto or the
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Prospectus or any amendment or supplement thereto.
(b) Indemnification by Holders. Each Holder agrees to
indemnify and hold harmless the Company and the other selling Holders,
and each of their respective directors and officers (including each
director and officer of the Company who signed the Registration
Statement), and each Person, if any, who controls the Company or any
other selling Holder within the meaning of Section 15 of the Securities
Act, to the same extent as the indemnity contained in Section 5(a)
hereof, but only insofar as such loss, liability, claim, damage or
expense arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in the Shelf
Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by such selling
Holder expressly for use therein.
(c) 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 an
indemnifying party (i) shall not relieve it from any liability that it
may have under the indemnity agreement provided in Section 5(a) or (b)
above, unless and to the extent it did not otherwise learn of such
action and the lack of notice by the indemnified party materially
prejudices the indemnifying party or 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 any indemnified party other than the indemnification obligation
provided under Section 5(a) or (b) above. After receipt of such notice,
the indemnifying party shall be entitled to participate in and, to the
extent it wishes, jointly with any other indemnifying party so
notified, assume the defense of such action or proceeding at such
indemnifying party's own expense with counsel chosen by such
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 indemnifying party
and the indemnified party reasonably determine, upon advice of counsel,
that a conflict of interest exists or that there may be legal defenses
available to the indemnified parties that are different from or in
addition to those available to the indemnifying party, then the
indemnifying party shall not be entitled to assume the defense of such
action or proceeding and the indemnified party shall be entitled to one
separate counsel, the reasonable fees and expenses of which counsel
shall be paid by the indemnifying party. If the indemnifying party does
not assume the defense of any such action or proceeding, after having
received the notice referred to in the first sentence of this Section
5(c), the indemnifying party will pay the reasonable fees and expenses
of counsel (which shall be limited to a single law firm) for the
indemnified party. In such event, however, no indemnifying party will
be liable for any settlement effected without the written consent of
such indemnifying party. If the indemnifying party assumes the defense
of any such action or proceeding in
10
accordance with this Section 5(c), such indemnifying party shall not be
liable for any fees and expenses of counsel for the indemnified party
incurred thereafter in connection with such action or proceeding,
except as set forth in the proviso in the second sentence of this
Section 5(c).
(d) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided
for in this Section 5 is for any reason held to be unenforceable,
although applicable in accordance with its terms, the Company and the
selling Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company and the selling Holders, in
such proportion as is appropriate to reflect the relative fault of and
benefits to the Company on the one hand and the selling Holders on the
other (in such proportions that the selling Holders are severally, not
jointly, responsible for the balance), in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits to the indemnifying party and
indemnified parties shall be determined by reference to, among other
things, the total proceeds received by the indemnifying party and
indemnified parties in connection with the offering to which such
losses, claims, damages, liabilities or expenses relate. The relative
fault of the indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether the action in
question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact,
has been made by, or relates to information supplied by, such
indemnifying party or the indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such action.
The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 5(d) were determined
by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this
Section 5(d), no selling Holder shall be required to contribute any
amount in excess of the amount by which the total price (less selling
commissions) at which the Registrable Securities of such selling Holder
were offered to the public exceeds the amount of any damages which such
selling Holder otherwise would have been required to pay by reason of
such untrue statement or omission.
Notwithstanding the foregoing, 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. For purposes of
this Section 5(d), each Person, if any, who controls a Holder within
the meaning of Section 15 of the Securities Act and directors and
officers of a Holder shall have the same rights to contribution as such
Holder, and each director of the Company, each officer of the Company
who
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signed the Registration Statement and each Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as the Company.
6. Rule 144 Sales.
(a) Compliance. The Company covenants that, so long as it is
subject to the reporting requirements of the Exchange Act, it will file
the reports required to be filed by it under the Exchange Act so as to
enable any Holder to sell Registrable Securities pursuant to Rule 144
under the Securities Act.
(b) Cooperation with Holders. In connection with any sale,
transfer or other disposition by the Holder of any Registrable
Securities pursuant to Rule 144 under the Securities Act, the Company
shall cooperate with such Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold and not bearing any Securities Act legend, and enable certificates
for such Registrable Securities to be for such number of shares and
registered in such names as the selling Holders may reasonably request
at least two business days prior to any sale of Registrable Securities.
7. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified, supplemented or waived, nor may consent to departures
therefrom be given, without the written consent of the Company and the
Holders of a majority of the outstanding Registrable Securities
hereunder (the Holders of Units being treated as the Holders of
Registrable Securities issuable upon redemption of such Units);
provided, however, that no amendment, modification, supplement or
waiver of, or consent to the departure from, the provisions of Sections
2, 5 or 6 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder of
Registrable Securities. Notice of any such amendment, modification,
supplement, waiver or consent adopted in accordance with this Section
7(a) shall be provided by the Company to each Holder of Registrable
Securities at least 30 days prior to the effective date of such
amendment, modification, supplement, waiver or consent.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier or any courier
guaranteeing overnight delivery, (i) if to a Holder, at the most
current address given by such Holder to the Company by means of a
notice given in accordance with the provisions of this Section 7(b),
which address initially is as specified in the Partnership Agreement,
or (ii) if to the Company, at 0000 Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx.
All such notices and communications shall be deemed to have
been duly
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given: at the time delivered by hand if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; when answered back if telexed; when receipt is acknowledged if
telecopied; or at the time delivered if delivered by an air courier
guaranteeing overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the
need for an express assignment, subsequent Holders; provided, however,
that such assignees have entered into the lock-up agreement
contemplated by the respective Exchange Agreements (the "Lock-up
Agreement"). If any successor, assignee or transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise and enter into the Lock-up Agreement,
such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable
Securities and entering into such Lock-up Agreement, such Person shall
be entitled to receive the benefits hereof and shall conclusively be
deemed to have agreed to be bound by all of the terms and provisions
hereof.
(d) 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.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina
without giving effect to the conflicts of law provisions thereof.
(g) 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 obligations 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.
(h) Entire Agreement. This Agreement and the lock-up
provisions of the Exchange Agreements are 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 and the lock-up provisions of the Exchange Agreements
supersede all prior agreements and understandings between the parties
with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX-XXXXX PROPERTIES, INC.
Attest: ______________________ By: _______________________________
HOLDER
____________________________________
Xxxx X. Xxxxxxxx
____________________________________
Xxxxx X. Xxxxxxxx
____________________________________
W. Xxxxxxx Xxxxxx
____________________________________
Xxxxx X. Xxxx
____________________________________
Xxxxxxx X. Xxxxxxx
X.X. Xxxxxxx Family, LLC
By:
____________________________________
X.X. Xxxxxxx, Managing Member
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NAME OF EACH HOLDER
INDIVIDUAL HOLDERS
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
W. Xxxxxxx Xxxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
HOLDERS THAT ARE LIMITED LIABILITY COMPANIES
X.X. Xxxxxxx Family, LLC
15
