Exhibit 10.61
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of October 9, 1996 (this
"AGREEMENT"), by and among Apartment Investment and Management Company, a
Maryland corporation (the "COMPANY"), and the persons listed on SCHEDULE A
hereto (each, an "INVESTOR"). Capitalized terms used, but not otherwise defined
herein, shall have the meaning ascribed to them in the Acquisition Agreement (as
defined below).
WHEREAS, pursuant to that certain Acquisition Agreement, dated as of
July 26, 1996 (the "ACQUISITION AGREEMENT"), by and among the Company, AIMCO
Properties, L.P., a Delaware limited partnership ("AIMCO OP"), AIMCO/XXX
Properties, L.P., Xxxx X. English, X.X. English Real Estate, Inc., X.X. English
Development Co., X.X. English Investments Co., X.X. English Management Co.,
Easton Falls Partners, Ltd., and English Income Fund I, a Texas Limited
Partnership, the Investors will be issued up to 716,137 units of limited
partnership interest in AIMCO OP (the "ISSUED OP UNITS") upon the contribution
of certain assets and the assignment of certain rights to AIMCO OP, all of which
Issued OP Units when surrendered for redemption may be acquired by the Company
in exchange for shares of the Company's Class A Common Stock, par value $.01 per
share (the "COMMON STOCK"), subject to certain restrictions under the agreement
of limited partnership of AIMCO OP (the "OP PARTNERSHIP AGREEMENT") and the
Company's charter;
WHEREAS, in connection with the Acquisition Agreement, the Company has
agreed to register for sale by the Investors and certain transferees, the shares
of Common Stock received by the Investors in exchange for Issued OP Units that
are surrendered for redemption (collectively, the "REGISTRABLE SHARES"); and
WHEREAS, the parties hereto desire to enter into this agreement to
evidence the foregoing agreement of the Company and the mutual covenants of the
parties relating thereto.
NOW, THEREFORE, in consideration of the foregoing and the covenants of
the parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. In this Agreement the following
terms shall have the following respective meanings:
"ACCREDITED INVESTOR" shall have the meaning set forth in Rule 501 of the
General Rules and Regulations promulgated under the Securities Act.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the person
specified.
"COMMISSION" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"HOLDERS" shall mean (i) each of the Investors, (ii) each Person holding OP
Units as a result of a Permitted Transfer (as such term is defined in the OP
Agreement) to that Person of OP Units made by an Investor in accordance with the
provisions of the OP Agreement, and (iii) each Person holding Registrable Shares
as a result of a transfer or assignment to that Person of Registrable Shares
made by an Investor in accordance with this Agreement other than pursuant to an
effective registration statement or Rule 144 under the Securities Act.
"INDEMNIFIED PARTY" shall have the meaning ascribed to it in Section 4(c)
of this Agreement.
"INDEMNIFYING PARTY" shall have the meaning ascribed to it in Section 4(c)
of this Agreement.
"OP UNITS" shall mean units of limited partnership interest in AIMCO OP.
"PERSON" shall mean an individual, corporation, partnership, estate, trust,
association, private foundation, joint stock company or other entity.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act providing for the sale by the Holders of
Registrable Shares in accordance with the method or methods of distribution
designated by the Holders,
2
and the declaration or ordering of the effectiveness of such registration
statement by the Commission.
"REGISTRABLE SHARES" shall have the meaning ascribed to it in the recitals
to this Agreement.
"REGISTRATION EXPENSES" shall mean all out-of-pocket expenses (excluding
Selling Expenses) incurred by the Company in complying with Section 2 hereof,
including, without limitation, the following: (a) all registration, filing and
listing fees; (b) fees and expenses of compliance with federal and state
securities or real estate syndication laws (including, without limitation,
reasonable fees and disbursements of counsel in connection with state securities
and real estate syndication qualifications of the Registrable Shares under the
laws of such jurisdictions as the Holders may designate); (c) printing
(including, without limitation, expenses of printing or engraving certificates
for the Registrable Shares in a form eligible for deposit with The Depository
Trust Company and otherwise meeting the requirements of any securities exchange
on which they are listed and of printing registration statements and
prospectuses), messenger, telephone, shipping and delivery expenses; (d) fees
and disbursements of counsel for the Company; (e) fees and disbursements of all
independent public accountants of the Company (including without limitation the
expenses of any annual or special audit and "cold comfort" letters required by
the managing underwriter); (f) securities act liability insurance if the Company
so desires; (g) fees and expenses of other Persons reasonably necessary in
connection with the registration, including any experts, retained by the
Company; (h) fees and expenses incurred in connection with the listing of the
Registrable Shares on each securities exchange on which securities of the same
class are then listed; and (i) fees and expenses associated with any NASD filing
required to be made in connection with the registration statement.
"RIGHTS" shall have the meaning ascribed to it in Section 6 of this
Agreement.
"RULE 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the relevant time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to any sale of Registrable
Shares.
3
Section 2. REGISTRATION.
(a) The Company shall prepare and file with the Commission,
within 10 months after the effective date hereof, a registration statement for
the purpose of effecting a Registration of the sale of Registrable Shares by the
Holders thereof; shall use its best efforts to effect such Registration on or
prior to the first anniversary of the effective date hereof (including, without
limitation, the execution of an undertaking to file post-effective amendments
and appropriate qualification under applicable state securities and real estate
syndication laws); and shall keep such Registration continuously effective until
the earlier of (i) the third anniversary hereof, (ii) the date on which all
Registrable Shares have been sold pursuant to such registration statement or
Rule 144, and (iii) the date on which all of the Registrable Shares may be sold
in accordance with Rule 144 under the Securities Act; PROVIDED, HOWEVER, that
the Company shall not be obligated to take any action to effect any such
Registration, qualification or compliance pursuant to this Section 2 in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such Registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction.
Notwithstanding the foregoing, the Company shall have the right (the
"SUSPENSION RIGHT") to defer such filing (or suspend sales under any filed
registration statement or defer the updating of any filed registration statement
and suspend sales thereunder) for a period of not more than 120 days during any
one-year period ending on December 31, if the Company shall furnish to the
Holders a certificate signed by the President or any other executive officer or
any director of the Company stating that in the judgment of the Company it would
be detrimental to the Company and its shareholders to file such registration
statement or amendment thereto at such time (or continue sales under a filed
registration statement) and therefore the Company has elected to defer the
filing of such registration statement (or suspend sales under a filed
registration statement).
(b) The Company shall promptly notify the Holders of the
occurrence of the following events:
(i) the filing with the Commission of the registration
statement, any supplement to the prospectus or any amendment or post-
effective amendment to the registration statement and, with respect to
the registration statement or any post-effective amendment, when the
same has become effective;
4
(ii) any request by the Commission for amendments or
post-effective amendments to the registration statement or supplements
to the prospectus or for additional information;
(iii) the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation or threatening of any proceedings for that purpose;
(iv) the suspension of an effective registration
statement by the Company in accordance with the last paragraph of
Section 2(a) above;
(v) the Company's receipt of any notification of the
suspension of the qualification of any shares of Common Stock covered
by the registration statement for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose; and
(vi) the existence of any event, fact or circumstance
that results in the registration statement, the prospectus or any
document incorporated therein by reference containing an untrue
statement of material fact or omitting to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading during the distribution of securities.
The Company agrees to use its best effort to obtain the withdrawal of any
order suspending the effectiveness of the registration statement or any state
qualification at the earliest possible moment.
(c) The Company shall provide to each Holder, at no cost to the
Holders, promptly upon the effectiveness thereof, five copies of the prospectus
and any post-effective amendment or supplement thereto, together with a copy of
the registration statement and any amendment thereto used to effect the
Registration of the Registrable Shares, each prospectus contained in such
registration statement or post-effective amendment and any amendment or
supplement thereto including financial statements and schedules, all documents
incorporated therein by reference and all exhibits thereto. The Company shall
also provide the Holders with such other documents as the requesting Holders may
reasonably request in order to facilitate the disposition of the Registrable
Shares covered by such registration statement. The Company consents to the use
of each prospectus or any supplement
5
thereto by the Holders in connection with the offering and sale of the shares
covered by such registration statement or any amendment thereto. The Company
shall also file a sufficient number of copies of the prospectus and any post-
effective amendment or supplement thereto with the New York Stock Exchange (or,
if the Common Stock is no longer listed thereon, with such other securities
exchange or market on which the Common Stock is then listed) so as to enable the
Holders to the benefits of the prospectus delivery provisions of Rule 153 under
the Securities Act.
(d) The Company agrees to use its best efforts to cause the
shares covered by the registration statement to be registered with or approved
by such state securities authorities as may be necessary to enable the Holders
to consummate the disposition of such shares pursuant to the plan of
distribution set forth in the registration statement.
(e) Subject to the Company's Suspension Right, if any event,
fact or circumstance requiring an amendment to the registration statement or
supplement to the prospectus shall exist, immediately upon becoming aware
thereof the Company agrees to notify the Holders and prepare and furnish to the
Holders a post-effective amendment to the registration statement or supplement
to the prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Shares, the prospectus will not contain an 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 not misleading.
(f) The Company agrees to use commercially reasonable efforts
(including the payment of all listing fees) to obtain the listing of all
Registrable Shares covered by the registration statement on each securities
exchange on which securities of the same class are then listed.
(g) The Company agrees to use its best efforts to comply with
the Securities Act and the Exchange Act, and, as soon as reasonably practicable
following the end of any fiscal year during which a registration statement
effecting a Registration of the Registrable Shares shall have been effective, to
make available to its security holders an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(h) The Company agrees to cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Shares to be sold pursuant to a Registration and not bearing any
6
Securities Act legend; and enable certificates for such Registrable Shares to be
issued for such numbers 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 Shares.
Section 3. EXPENSES OF REGISTRATION. The Company shall pay all
Registration Expenses incurred in connection with the registration,
qualification or compliance pursuant to Section 2 hereof. All Selling Expenses
incurred in connection with the sale of Registrable Shares by any of the Holders
shall be borne by the Holder selling such Registrable Shares. Each Holder shall
pay the expenses of its own counsel.
Section 4. INDEMNIFICATION.
(a) The Company will indemnify each Holder, each Holder's
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (including reasonable legal expenses), arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement or prospectus, or any
amendment or supplement thereto, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, PROVIDED, HOWEVER, that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission or alleged untrue statement or omission, made in reliance upon and
in conformity with information furnished in writing to the Company by such
Holder or underwriter for inclusion therein.
(b) Each Holder will indemnify the Company, each of its
directors and each of its officers who signs the registration statement, each
underwriter, if any, of the Company's securities covered by such registration
statement, and each person who controls the Company or such underwriter within
the meaning of Section 15 of the Securities Act, against all claims, losses,
damages and liabilities (including reasonable legal fees and expenses) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement or prospectus, or any
amendment or supplement thereto, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each ease to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement or
prospectus, in reliance upon and in conformity with
7
information furnished in writing to the Company by such Holder for inclusion
therein.
(c) Each party entitled to indemnification under this Section 4
(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 claim as to which indemnity may be sought, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party otherwise than pursuant to
the provisions of this Section 4 and then, only to the extent of the actual
damages suffered by such delay in notification. The Indemnifying Party shall
assume the defense of such action, including the employment of counsel to be
chosen by the Indemnifying Party to be reasonably satisfactory to the
Indemnified Party and payment of expenses. The Indemnified Party shall have the
right to employ its own counsel in any such case, but the legal fees and
expenses of such counsel shall be at the expense of the Indemnified Party,
unless the employment of such counsel shall have been authorized in writing by
the Indemnifying Party in connection with the defense of such action, or the
Indemnifying Party shall not have employed counsel to take charge of the defense
of such action or the Indemnified Party shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to the Indemnifying Party (in which case the
Indemnifying Party shall not have the right to direct the defense of such action
on behalf of the Indemnified Party), in any of which events such fees and
expenses shall be borne by 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 to such claim or litigation.
(d) If the indemnification provided for in this Section 4 is
unavailable to a party that would have been an Indemnified Party under this
Section in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that would have been an Indemnifying Party
hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
expenses, claims, losses, damages and liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
8
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
Indemnifying Party or such Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each holder of Registrable Shares agrees
that it would not be just and equitable if contribution pursuant to this Section
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 4(d).
(e) 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 5. INFORMATION TO BE FURNISHED BY HOLDERS. Each Holder shall
furnish to the Company such information as the Company may reasonably request in
writing (which request shall be submitted a reasonable period of time in advance
of the filing of the registration statement or amendment or supplement thereto
with respect to which the requested information relates) and as shall be
required in connection with the Registration and related proceedings referred to
in Section 2 hereof. If any Holder fails to provide the Company with such
information within three weeks of the Company's request, the Company shall no
longer have any obligations under Section 2 hereof with respect to such Holder
or such Holder's Registrable Shares.
Section 6. TRANSFER OF EXCHANGE AND REGISTRATION RIGHTS. The rights
of each Investor under Section 2 hereof and the related rights of each Investor
hereunder (the "RIGHTS") may be assigned by each Investor (i) if the Investor is
a corporation, to a shareholder or shareholders of such Investor, (ii) if the
Investor is a partnership, to a partner or partners of that partnership, (iii)
if the Investor is an individual, to a Family Member (as such term is defined in
the OP Agreement), (iv) upon the death of the Investor, to the heirs of the
Investor by virtue of the Investor's will or the laws of descent and
distribution, or (v) if the Investor is a corporation or a partnership, to any
Person into or with which the Investor is merged or consolidated or to which the
Investor sells all or substantially all of its assets, in each case, only in
connection with the transfer of Registrable Shares originally owned by the
Investor or OP Units originally owned by the Investor in respect of which the
Registrable Shares were issued; PROVIDED that (w) in each case, the transferee
is an Accredited Investor, (x) such transfer is otherwise effected in accordance
with applicable securities laws and the Company shall have been provided by the
transferor and the transferee with such evidence thereof as the Company may
9
request, including representations by the transferee in form and content
reasonably acceptable to the Company, (y) the Company is given written notice of
such transfer prior to such transfer (or, in the case of the death of the
Investor, as soon as practicable following the death of the Investor), and (z)
the transferee by written agreement delivered to the Company acknowledges that
such transferee is bound by the terms of this Agreement. In the event of any
such permitted transfer, the defined term "HOLDERS" shall from and after such
transfer include such transferee.
Section 7. ADDITIONAL REPRESENTATIONS. Each Holder of OP Units
agrees that upon surrender of any such OP Units for redemption as provided in
the OP Partnership Agreement, such Holder shall make such investment and other
representations in connection with (and as a condition to) the issuance of
Common Stock in exchange for such OP Units as the Company or AIMCO OP may
reasonably request.
Section 8. RULE 144 SALES.
(a) The Company covenants that it will file the reports required
to be filed by the Company under the Exchange Act, so as to enable any Holder to
sell Registrable Shares pursuant to Rule 144 under the Securities Act.
(b) In connection with any sale, transfer or other disposition
by any Holder of any Registrable Shares 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 Shares
to be sold and not bearing any Securities Act legend, and enable certificates
for such Registrable Shares 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 Shares.
Section 9. EFFECTIVE DATE. This Agreement shall be effective as of
the Closing.
Section 10. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Maryland.
10
(b) ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof.
(c) AMENDMENT. No supplement, modification, waiver or
termination of this Agreement shall be binding unless executed in writing by the
party to be bound thereby.
(d) NOTICES, ETC. Each notice, demand, request, request for
approval, consent, approval, disapproval, designation or other communication
(each of the foregoing being referred to herein as a notice) required or desired
to be given or made under this Agreement shall be in writing (except as
otherwise provided in this Agreement), and shall be effective and deemed to have
been received (i) when delivered in person, (ii) when sent by fax with receipt
acknowledged, (iii) five (5) days after having been mailed by certified or
registered United States mail, postage prepaid, return receipt requested, or
(iv) the next business day after having been sent by a nationally recognized
overnight mail or courier service, receipt requested. Notices shall be
addressed as follows: (a) if to an Investor, at such Investor's address or fax
number set forth below its signature hereon, or at such other address or fax
number as the Investor shall have furnished to the Company in writing, or (b) if
to any assignee or transferee of an Investor, at such address or fax number as
such assignee or transferee shall have furnished the Company in writing, or (c)
if to the Company, at the address of its principal executive offices and
addressed to the attention of the President, or at such other address or fax
number as the Company shall have furnished to the Investors or any assignee or
transferee. Any notice or other communication required to be given hereunder to
a Holder in connection with a registration may instead be given to the
designated representative of such Holder.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which may be executed by fewer than all of the parties
hereto (PROVIDED that each party executes one or more counterparts), each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
(f) SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision.
11
(g) SECTION TITLES. Section titles are for descriptive purposes
only and shall not control or alter the meaning of the Agreement as set forth in
the text.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the parties hereto and their respective successors and assigns.
(i) REMEDIES. The Company and the Investors 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 the Company and each
Holder, 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
another 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.
(j) ATTORNEYS' FEES. If the Company or any Holder brings an
action to enforce its rights under this Agreement, the prevailing party in the
action shall be entitled to recover its costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred in connection with such action,
including any appeal of such action.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxxx
Vice Chairman
INVESTOR:
----------------------------------------
XXXX XXXXXX ENGLISH
Investor's Address:
X.X. ENGLISH REAL ESTATE, INC.
By: /s/ Xxxx Xxxxxx English
-------------------------------------
Name: Xxxx Xxxxxx English
Title:
Investor's Address:
0000 Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
X.X. ENGLISH DEVELOPMENT CO.
By: /s/ Xxxx Xxxxxx English
------------------------------------
Name: Xxxx Xxxxxx English
Title:
Investor's Address:
0000 Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
X.X. ENGLISH INVESTMENTS CO.
By: /s/ Xxxx Xxxxxx English
------------------------------------
Name: Xxxx Xxxxxx English
Title:
Investor's Address:
0000 Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
