EXHIBIT 99.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-up Agreement (the "Agreement") is
entered into as of March 6, 1998 by and among Summit Properties, Inc., a
Maryland corporation (the "Company") and St. Clair Associates, L.P. ("Seller"),
which contemporaneously herewith is to become a partner of Summit Properties
Partnership, L.P., a Delaware limited partnership (the "Partnership"), and its
permitted successors and assigns (together with Seller, the "Holders").
WHEREAS, Seller is to receive contemporaneously herewith units of limited
partnership interest in the Partnership ("Units"), issued without registration
under the Securities Act of 1933, as amended (the "Securities Act"), in
consideration for its contribution to the Partnership of land pursuant to that
certain Contract for Purchase of Real Estate between the Company and Seller
dated as of August 29, 1996 and any amendment thereto (collectively, the
"Acquisition Agreement");
WHEREAS, such Units may be redeemed for shares of the Company's common
stock, par value $.01 per share ("Common Stock"), issued without registration
under the Securities Act; and
WHEREAS, it is a condition precedent to the closing of the Acquisition
Agreement that the Company provide Seller with the registration rights set forth
in Section 3 hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for which
a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible for sale pursuant to Rule 144(k) under
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 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 "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any 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 Shares on any
securities exchange or exchanges pursuant to Section 5 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 audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by a
selling Holder, the fees and disbursements of counsel representing a selling
Holder, and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a selling Holder, all of which shall be borne by such
Holder in all cases.
"Registration Statement" shall mean any registration statement of the
Company and other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act which
covers any of the Registrable Shares on an appropriate form, and all amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" shall mean the shares of Common Stock issued or to be issued to
the Holder(s) upon redemption or in exchange for its or their Units, as
appropriately adjusted on account of any stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization.
2. Lock-Up Agreement.
(a) Each Holder hereby agrees that, except as set forth in Section
2(b) below, for one (1) year from the date hereof (the "Lock-Up Period"),
without the prior written
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consent of the Company, it will not offer, sell, contract to sell, hypothecate,
pledge, seek to redeem, grant an option, right or warrant to purchase or
otherwise dispose of, directly or indirectly (collectively "Sell"), any Shares
or Units (the "Lock-Up").
(b) The following Sales of Shares and/or Units shall not be
subject to the Lock-Up set forth in Section 2(a):
(i) a Holder who is a natural person may Sell his or
her Shares or Units to his or her spouse, siblings, parents or any
natural or adopted children or other descendants or to any personal
trust in which any such family member or such Holder retains the
entire beneficial interest;
(ii) a Holder that is a corporation, partnership, joint
venture or other business entity may Sell its Shares or Units to one
or more Persons who have an ownership interest in such Holder or to
one or more other entities that are wholly-owned and controlled,
legally and beneficially, by such Holder or by one or more of the
Persons who have an ownership interest in such Holder;
(iii) a Holder may Sell his or her Shares or Units on
his or her death to such Holder's estate, executor, administrator or
personal representative or to such Holder's beneficiaries pursuant
to a devise or bequest or by laws of descent and distribution;
(iv) a Holder may Sell Shares or Units as a gift or
other transfer without consideration; and
(v) a Holder may Sell Shares or Units pursuant to a
pledge, grant of security interest or other encumbrance effected in
a bona fide transaction with an unrelated and unaffiliated pledgee;
provided, however, that as a condition to any transfer of Units or Shares the
transferee must be an "accredited investor" within the meaning of Regulation D
promulgated under the Securities Act of 1933 and must provide the Company with
such representations and other assurances that the transferee is an accredited
investor as the Company deems necessary or appropriate, and provided further,
however, that in the case of any transfer of Shares or Units pursuant to clauses
(i), (ii), (iv) and (v), the transferor shall, at the request of the Company,
provide evidence satisfactory to the Company that the transfer is exempt from
the registration requirements of the Securities Act.
In the event any Holder Sells any Shares or Units as described in this Section
2(b), such Shares or Units shall remain subject to this Agreement and, as a
condition of the validity of such disposition, the transferee shall be required
to execute and deliver a counterpart of this
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Agreement (except that a pledgee shall not be required to execute and deliver a
counterpart of this Agreement until it forecloses upon such Shares or Units).
Thereafter, such transferee shall be deemed to be a Holder for purposes of this
Agreement.
3. Registration.
(a) Demand Registration. Subject to the conditions set forth in
this Agreement, at any time after one (1) year from the date of the closing of
the Acquisition Agreement, the Company shall, at the written request of a Holder
who is unable to sell its Registrable Shares pursuant to Rule 144(k) under the
Securities Act (or any successor provision), cause to be filed as soon as
practicable after the date of such request by such Holder a Registration
Statement under Rule 415 under the Securities Act relating to the sale by the
Holder of all or any integral multiple of 100,000 shares of the Registrable
Shares held by such Holder in accordance with the terms hereof, and shall use
reasonable efforts to cause such Registration Statement to be declared effective
by the SEC as soon as practicable thereafter; provided, however, that the
Company shall not be required to effect more than two demand registrations
pursuant to this Section 3(a). The Company may, in its sole discretion, elect to
file a Registration Statement with respect to any or all of the Shares before
receipt of notice from any Holder, but in no event sooner than ten (10) months
after the Effective Date. The Company agrees to use reasonable efforts to keep
each Registration Statement continuously effective until the earlier of (i) six
(6) months thereafter, or (ii) the date on which such Holder no longer holds any
Registrable Shares. Notwithstanding the foregoing provisions of this Section
3(a), during any period of time which the Company has a Registration Statement
in effect under the provisions of Rule 415 of the Securities Act relating to the
original issuance by the Company of Shares in connection with the redemption of
Holders' Units, such Holders will not have the right to request the registration
of Registrable Shares under the provisions of this Section 3(a).
(b) Piggyback Registration. If at any time while any Registrable
Shares are outstanding and a Registration Statement applicable to a Holder under
Section 3(a) is not effective the Company (in its sole discretion and without
any obligation to do so) proposes to file a registration statement under the
Securities Act in connection with its offering of Common Stock solely for cash
(other than a registration statement (i) on Form S-8 or any successor form to
such Form or in connection with any employee or director welfare, benefit or
compensation plan, (ii) on Form S-4 or any successor form to such Form or in
connection with an exchange offer, (iii) in connection with a rights offering
exclusively to existing holders of Common Stock, (iv) in connection with an
offering solely to employees of the Company or its subsidiaries, or (v) relating
to a transaction pursuant to Rule 145 of the Securities Act), the Company shall
give prompt written notice of such proposed filing to each Holder who has
requested to receive such notices at least fifteen (15) days prior to the
proposed filing date. The notice referred to in the preceding sentence shall
offer each Holder the opportunity to register any amount of Registrable Shares
as such Holder may request (a "Piggyback Registration"). Subject to the
provisions of Section 4 below, the Company shall include in such Piggyback
Registration, in the registration and qualification for sale under the blue sky
or
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securities laws of the various states and in any underwriting in connection
therewith, all Registrable Shares for which the Company has received written
requests for inclusion therein within fifteen (15) calendar days after the
notice referred to above has been given by the Company to each Holder. Each
Holder of Registrable Shares shall be permitted to withdraw all or part of its
Registrable Shares from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company and the managing
underwriter advises the Company that the total number of shares of Common Stock
requested to be included in such registration exceeds the number of shares of
Common Stock which can be sold in such offering, the Company will include in
such registration in the following priority: (i) first, all shares of Common
Stock the Company proposes to sell, and (ii) second, up to the full number of
Registrable Shares and shares of Common Stock requested to be included in such
registration by any Holders and other holders of registration rights, which in
the opinion of such managing underwriter, can be sold without adversely
affecting the price range or probability of success of such offering (with the
shares of Common Stock to be registered allocated pro rata among the Holders and
the other holders of registration rights on the basis of the total number of
Registrable Shares and the other shares of the Company's Common Stock requested
to be included in such registration by all such Holders and other holders of
registration rights).
(c) Registration Statement Covering Issuance of Common Stock. In
lieu of the registration rights set forth in Sections 3(a) and 3(b) above, the
Company may, in its sole discretion, prior to the first date upon which the
Units held by the Holders may be redeemed (or such other date as may be required
under applicable provisions of the Securities Act) file a registration statement
(the "Issuance Registration Statement") under Rule 415 under the Securities Act
relating to the issuance to Holders of Common Stock upon the redemption of Units
or in exchange for Units. Thereupon, the Company shall use reasonable efforts to
cause such Registration Statement to be declared effective by the SEC for all
shares of Common Stock covered thereby. The Company agrees to use reasonable
efforts to keep the Issuance Shelf Registration Statement continuously
effective, with respect to the Registrable Shares of a particular Holder, until
the date on which such Holder has redeemed or exchanged such Holder's Units for
Common Stock. In the event that the Company is unable to cause such Issuance
Registration Statement to be declared effective by the SEC or (except as
otherwise permitted by Sections 8(b) and 9) is unable to keep such Issuance
Registration Statement effective until the date on which each Holder has
redeemed or exchanged such Holder's Units for Common Stock, then the rights of
each Holder set forth in Sections 3(a) and 3(b) above shall be restored.
(d) Notification and Distribution of Materials. The Company shall
notify each Holder of the filing and the effectiveness of any Registration
Statement applicable to the shares of such Holder and shall furnish to each such
Holder the number of copies of such Registration Statement (including any
amendments, supplements and exhibits), the Prospectus contained therein
(including each preliminary prospectus and all related amendments and
supplements) and any documents incorporated by reference in such Registration
Statement or
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such other documents as such Holder may reasonably request in order to
facilitate its sale of the Registrable Shares in the manner described in such
Registration Statement.
(e) Amendments and Supplements. The Company shall prepare and file
with the SEC from time to time such amendments and supplements to any
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all the
Registrable Shares until the earlier of (i) such time as all of the Registrable
Shares have been disposed of in accordance with the intended methods of
disposition by the Holders as set forth in such Registration Statement or (ii)
the date on which such Registration Statement ceases to be effective in
accordance with the terms of this Section 3. Upon five (5) business days'
notice, the Company shall file any supplement or post- effective amendment to
such Registration Statement with respect to the plan of distribution or such
Holder's ownership interests in Registrable Shares that is reasonably necessary
to permit the sale of the Holder's Registrable Shares pursuant to the
Registration Statement. The Company shall file any necessary listing
applications or amendments to the existing applications to cause the Shares
registered under the Registration Statement to be then listed or quoted on the
primary exchange or quotation system on which the Common Stock is then listed or
quoted.
(f) Notice of Certain Events.
(i) The Company shall promptly notify each Holder of, and confirm
in writing, the filing of any Registration Statement or any Prospectus,
amendment or supplement related thereto or any post-effective amendment to any
Registration Statement and the effectiveness of any post-effective amendment.
(ii) At any time when a Prospectus relating to a Registration
Statement is required to be delivered under the Securities Act, the Company
shall immediately notify each 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
each applicable 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 Shares, 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.
4. State Securities Laws. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Registration
Statement hereunder, file such
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documents as may be necessary to register or qualify the Registrable Shares
under the securities or "Blue Sky" laws of such states as any Holder may
reasonably request, and the Company shall use its best efforts to cause such
filings to become effective; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws of
any such state in which it is not then qualified or to file any general consent
to service of process in any such state. Once effective, the Company shall use
its best efforts to keep such filings effective until the earlier of (a) such
time as all of the Registrable Shares have been disposed of in accordance with
the intended methods of disposition by the Holder as set forth in the
Registration Statement, (b) in the case of a particular state, a Holder has
notified the Company that it no longer requires an effective filing in such
state in accordance with its original request for filing or (c) the date on
which the Registration Statement ceases to be effective in accordance with
Section 3. The Company shall promptly notify each Holder of, and confirm in
writing, the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Shares for sale under the
securities or "Blue Sky" laws of any jurisdiction or the initiation of any
threat of any proceeding for such purpose.
5. Expenses. The Company shall bear all Registration Expenses incurred
in connection with the registration of the Registrable Shares pursuant to this
Agreement, except that each Holder shall be responsible for any brokerage or
underwriting commissions and taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer of Registrable
Shares sold by it and for any legal, accounting and other expenses incurred by
it. In the event that the Company (in its sole discretion and without any
obligation to do so) amends a Registration Statement in response to a request by
a Holder for such amendment or to reflect a change in the plan of distribution
or ownership interests with respect to a Holder's Registrable Shares, the Holder
requesting such amendment or whose actions require such amendment shall bear all
fees, costs and expenses incurred by the Company or by such Holder in connection
therewith, including fees related to the delisting of Shares from any national
securities exchange or quotation system on which such Shares had been listed for
trading.
6. Indemnification by the Company. The Company agrees to indemnify each
Holder and its respective officers, directors, employees, agents,
representatives and affiliates, and each person or entity, if any, that controls
such Holder within the meaning of the Securities Act, and each other person or
entity, if any, subject to liability because of his, her or its connection with
such Holder (each an "Indemnitee") against any and all losses, claims, damages,
actions, liabilities, costs and expenses (including without limitation
reasonable fees, expenses and disbursements of attorneys and other
professionals), joint or several, arising out of or based upon any violation by
the Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to any action or inaction required of the
Company in connection with any Registration Statement or Prospectus, or upon any
untrue or alleged untrue statement of material fact contained in the
Registration Statement or any Prospectus, or any 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
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which they were made, not misleading; provided, that the Company shall not be
liable to such Indemnitee or any person who participates as an underwriter in
the offering or sale of Registrable Shares or any other person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof), cost or expenses arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished to the Company in
writing for use in connection with the Registration Statement or the Prospectus
contained therein by such Indemnitee or (ii) such Holder's failure to send or
give a copy of the final, amended or supplemented prospectus furnished to the
Holder by the Company at or prior to the time such action is required by the
Securities Act to the person claiming an untrue statement or alleged untrue
statement or omission or alleged omission if such statement or omission was
corrected in such final, amended or supplemented prospectus.
7. Covenants of Holder(s). Each Holder hereby agrees (a) to cooperate
with the Company and to furnish to the Company in writing all such information
concerning its plan of distribution and ownership interests with respect to its
Registrable Shares in connection with the preparation of a Registration
Statement with respect to such Holder's Registrable Shares and any filings with
any state securities commissions as the Company may reasonably request, (b) to
furnish to the Company in writing all information required to be disclosed by it
in the Registration Statement pursuant to the Securities Act in order to make
the information previously furnished to the Company by such Holder not
misleading, (c) to deliver or cause delivery of the Prospectus contained in such
Registration Statement (other than an Issuance Registration Statement) to any
purchaser of the shares covered by such Registration Statement from the Holder
and (d) to indemnify the Company, its officers, directors, employees, agents,
representatives and affiliates, and each person, if any, who controls the
Company within the meaning of the Securities Act, and each other person, if any,
subject to liability because of his connection with the Company, against any and
all losses, claims, damages, actions, liabilities, costs and expenses arising
out of or based upon (i) any untrue statement or alleged untrue statement of
material fact contained in either such Registration Statement or the Prospectus
contained therein, or any 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, if and to the extent that such statement or omission occurs from
reliance upon and in conformity with written information regarding the Holder,
its plan of distribution or its ownership interests, which was furnished to the
Company by the Holder for use therein unless such statement or omission was
corrected in writing to the Company not less than five (5) business days prior
to the date of the final prospectus (as supplemented or amended, as the case may
be) or (ii) the failure by the Holder to deliver or cause to be delivered the
Prospectus contained in the Registration Statement (as amended or supplemented,
if applicable) furnished by the Company to the Holder to any purchaser of the
shares covered by such Registration Statement from the Holder through no fault
of the Company.
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8. Suspension of Registration Requirement.
(a) The Company shall promptly notify each Holder of, and confirm
in writing, the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement with respect to such Holder's
Registrable Shares or the initiation of any proceedings for that purpose. The
Company shall use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such a Registration Statement at the earliest
possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a Registration Statement shall be suspended
in the event and during such period as unforeseen circumstances exist (including
without limitation (i) an underwritten primary offering by the Company if the
Company is advised by the underwriters that the sale of Registrable Shares under
the Registration Statement would impair the pricing or commercial practicality
of 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") that 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. The Company shall notify each Holder of the existence and, in the
case of circumstances referred to in clause (i) of this Section 8(b), nature of
any Suspension Event.
(c) Each Holder of Registrable Shares whose Registrable Shares are
covered by a Registration Statement filed pursuant to Section 3 agrees, if
requested by the Company in the case of a Company-initiated non-underwritten
offering or if requested by the managing underwriter or underwriters in a
Company-initiated underwritten offering, not to effect any public sale or
distribution of any of the securities of the Company, including a sale pursuant
to Rule 144 or Rule 144A under the Securities Act (except as part of such
Company-initiated registration), during the 15-day period prior to, and during
the 60-day period beginning on, the date of commencement of each
Company-initiated offering made pursuant to such Registration Statement, to the
extent timely notified in writing by the Company or the managing underwriters;
provided, however, that such 60-day period shall be extended by the number of
days from and including the date of the giving of any notice pursuant to Section
3(d) or 3(f)(ii) hereof to and including the date when each seller of
Registrable Shares covered by such Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by Section
3(f)(ii) hereof.
9. Black-Out Period. Each Holder agrees that, following the
effectiveness of any Registration Statement (except an Issuance Registration
Statement) relating to Registrable
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Shares of such Holder, such Holder will not effect any sales of the Registrable
Shares pursuant to the Registration Statement or any filings with any state
securities commissions at any time after such Holder has 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 following further
notice to such effect from the Company, which notice shall be given by the
Company not later than five (5) business days after the conclusion of any such
Suspension Event.
10. Additional Shares. The Company, at its option, may register, under
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of Common Stock
of the Company or any shares of Common Stock of the Company owned by any other
stockholder(s) of the Company.
11. Contribution. If the indemnification provided for in Sections 6 and
7 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Indemnitee, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Indemnitee, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
party to contribute under this Section 11 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 6 or 7 hereof had been available
under the circumstances.
The Company and each of the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 11 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 11, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of shares exceeds the amount of any damages that the
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall
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be entitled to contribution from any indemnifying party who was not guilty of
such fraudulent misrepresentation.
12. No Other Obligation to Register. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
13. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified, or supplemented or waived without the prior written consent
of the Company and the Holders of in excess of fifty percent (50%) of the
aggregate of all Registrable Shares.
14. Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 3(e) or
Section 7, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Summit Properties Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, General Counsel
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to the Holders: St. Clair Associates, L.P.
x/x Xxxxxxxx Xxxxxxxxx Xxxxxxxxxxx
Xxxxx X-000, 0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx
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with a copy to: Xxxxxxxxxx, Xxxxxx & Xxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Xx.
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 8 and 9 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
This Agreement may not be assigned by any Holder and any attempted assignment
hereof by any Holder will be void and of no effect and shall terminate all
obligations of the Company hereunder; provided that any Holder may assign its
rights hereunder to any person to whom such Holder may Sell Shares and/or Units
pursuant to Section 2(b) hereof.
16. 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.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland applicable to contracts made
and to be performed wholly within said State.
18. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereof shall be enforceable to the fullest extent permitted by law.
19. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SUMMIT PROPERTIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
ST. CLAIR ASSOCIATES, L.P.
By: St. Clair Apartments, Inc., its
general partner
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President
13
JOINDER
November 6, 2001
By executing this page in the space provided and in consideration of the
transfer by St. Clair Associates, L.P. to the undersigned of a total of 17,850
common units of limited partnership interest in Summit Properties Partnership,
L.P., the undersigned hereby (i) agrees that he is a "Holder" as defined in the
Registration Rights and Lock-Up Agreement dated as of March 6, 1998 (the
"Registration Rights Agreement"), a copy of which is attached hereto, (ii)
agrees that he is a party to the Registration Rights Agreement and (iii) adopts,
accepts, ratifies, confirms and agrees to be bound by all of the terms and
conditions of the Registration Rights Agreement. The address to which notices
may be sent to the undersigned is as follows:
-------------------------
-------------------------
-------------------------
/s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
Agreed and Accepted by:
Summit Properties Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and General Counsel
14
JOINDER
November 6, 2001
By executing this page in the space provided and in consideration of the
transfer by St. Clair Associates, L.P. to the undersigned of a total of 89,250
common units of limited partnership interest in Summit Properties Partnership,
L.P., the undersigned hereby (i) agrees that he is a "Holder" as defined in the
Registration Rights and Lock-Up Agreement dated as of March 6, 1998 (the
"Registration Rights Agreement"), a copy of which is attached hereto, (ii)
agrees that he is a party to the Registration Rights Agreement and (iii) adopts,
accepts, ratifies, confirms and agrees to be bound by all of the terms and
conditions of the Registration Rights Agreement. The address to which notices
may be sent to the undersigned is as follows:
-------------------------
-------------------------
-------------------------
/s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
Agreed and Accepted by:
Summit Properties Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and General Counsel
15
JOINDER
November 6, 2001
By executing this page in the space provided and in consideration of the
transfer by Worthing Investors, LLC and Worthing Shiloh Investors, LLC to the
undersigned of a total of 11,900 common units of limited partnership interest in
Summit Properties Partnership, L.P., the undersigned hereby (i) agrees that he
is a "Holder" as defined in the Registration Rights and Lock-Up Agreement dated
as of August 1, 2000 (the "Registration Rights Agreement"), a copy of which is
attached hereto, (ii) agrees that he is a party to the Registration Rights
Agreement and (iii) adopts, accepts, ratifies, confirms and agrees to be bound
by all of the terms and conditions of the Registration Rights Agreement. The
address to which notices may be sent to the undersigned is as follows:
-------------------------
-------------------------
-------------------------
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
Agreed and Accepted by:
Summit Properties Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and General Counsel
16
