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Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 21, 1998,
among (i) Central Parking Corporation, a Tennessee corporation (the "Company"),
(ii) Apollo Real Estate Investment Fund II, L.P., a Delaware limited partnership
(together with its Affiliates, "Apollo"), (iii) AEW Partners, L.P., a Delaware
limited partnership (together with its Affiliates, "AEW"), and (iv) Monroe J.
Carell, Jr., The Monroe Carell, Jr. Foundation, Monroe Carell, Jr. 1995 Grantor
Retained Annuity Trust, Monroe Carell, Jr. 1994 Grantor Retained Annuity Trust,
The Carell Children's Trust, The 1996 Carell Grandchildren's Trust, The Carell
Family Grandchildren 1990 Trust, The Xxxxxxx Carell Xxxxx Foundation, The Xxxxx
Carell Xxxxxxx Foundation, The Xxxxx Carell Xxxxxxx Foundation, 1997 Carell
Xxxxxxxxx Xxxxx Trust, 1997 Xxx Xxxxx Xxxxxxx Trust, 1997 Xxxxx Xxxxxx Xxxxxxx
Trust, 1997 Xxxxxxx Carell Xxxxxxx Trust, 1997 Xxxxx Xxxxxxxx Xxxxx Trust and
1997 Xxxxxx Xxxxxx Xxxxxxx Trust (together with their respective Affiliates
other than the Company, the "Carell Holders"). Apollo, AEW and all other
holders at the effective time of the Merger (as hereinafter defined) of the
shares of Common Stock, par value of $.01 per share (the "Holdings Common
Stock"), of Allright Holdings, Inc., a Delaware corporation ("Holdings"), or of
options and warrants to purchase shares of Holdings Common Stock, are sometimes
referred to collectively as the "Allright Holders" and the Allright Holders and
the Carell Holders are sometimes referred to collectively as the "Holders."
W I T N E S S E T H
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as
of the date hereof (the "Merger Agreement"), by and among the Company, Central
Merger Sub, Inc., a Delaware corporation ("Central Sub"), Holdings, AEW and
Apollo, shareholders of Holdings will receive from the Company shares of the
Company's Common Stock (as hereinafter defined) pursuant to the merger of
Holdings with and into Central Sub, with Holdings being the surviving
corporation (the "Merger"); and
WHEREAS, the parties hereto desire to set forth the rights of
the Holders and the obligations of the Company with respect to the registration
of the Registrable Securities (as hereinafter defined) pursuant to the
Securities Act (as hereinafter defined); and
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WHEREAS, the execution and delivery of this Agreement by the
parties hereto is a condition to the willingness of each of Holdings, Apollo and
AEW to enter into the Merger Agreement;
NOW, THEREFORE, in consideration of the covenants and
agreements of the Company, Central Sub and Holdings contained in the Merger
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Merger Agreement.
For purposes of this Agreement the following terms shall have the following
meanings:
"Affiliate" has the meaning assigned to such term under Rule
405 of the Securities Act.
"Business Day" means any day other than (i) a Saturday or
Sunday, or (ii) a day on which banking institutions in the City of New York are
authorized or required by law or executive order to remain closed.
"Charitable Organization" means any corporation, community
chest, fund or foundation organized and operated exclusively for religious,
charitable, scientific, testing for public safety, literary or educational
purposes, or to xxxxxx national or international amateur sports competition or
for the prevention of cruelty to children or animals, no part of the net
earnings of which inures to the benefit of any private shareholder or individual
(including, without limitation, any family members of Monroe J. Carell, Jr. and
beneficiaries of the various trusts which are Carell Holders), no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting, to influence legislation, and which does not participate in, or
intervene in (including the publishing or distributing of statements), any
political campaign on behalf of (or in opposition to) any candidate for public
office.
"Common Stock" means the shares of common stock, par value
$0.01 per share, of the Company.
"Convertible Securities" means any securities of the Company
or any Affiliates thereof which are convertible into, or exchangeable for,
shares of common stock or common stock equivalents (excluding options and
warrants which are issued
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to employees, officers and directors in the ordinary course of business
consistent with past practice), the terms of which satisfy the following
conditions: (a) the per share price for converting such convertible securities
into, or exchanging such convertible securities for, shares of Common Stock must
be at least 18% higher than the market price per share of Common Stock on the
day before the issuance of such convertible securities, (b) such convertible
securities must not be convertible into shares of Common Stock at any time
before the three year anniversary of the issuance of such convertible
securities, except with respect to earlier conversions related to extraordinary
transactions in accordance with market practices, (c) such convertible
securities must not, by their terms, place any restrictions on the ability of
the Company to satisfy its obligations under this Agreement, or in any manner
adversely impact the ability of any of the Holders to exercise the rights
granted to them hereunder, and (d) the terms and provisions of such Convertible
Securities must be consistent with customary market practices.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations thereunder.
"Extra Underwriting End Date" means (i) in the event that the
Extra Underwriting is consummated, the date set forth in the underwriting
agreement for the Extra Underwriting as the first day after the closing of the
Extra Underwriting that the Company, Apollo, AEW and the Carell Holders will be
allowed to effect open market sales of shares of Common Stock without the
consent of the Underwriters' Representative, (ii) in the event that the Extra
Underwriting Notice is not given prior to the date one year following the Shelf
Registration Date, such date or (iii) in the event that the Extra Underwriting
Notice is given but the Extra Underwriting is abandoned with the concurrence of
Apollo, AEW and the Carell Holders, the date of such abandonment.
"Initial Liquidity Date" means the earliest date on which each
of Apollo, AEW and the Carell Holders shall have received gross proceeds from
the sale of Registrable Securities following the date hereof at least equal to
their respecting Initial Underwriting Amounts.
"Initial Underwriting Amount" means (i) in the case of either
Apollo or AEW, $125 million (or such lesser amount, to the extent that (A) other
Allright Holders participate in an Underwritten Offering which closes before the
Initial Liquidity Date, or (B) AEW and Apollo elect to distribute shares of
Common Stock to Xxxxxxxx, Xxxxxx & Associates, Inc. ("CBA") before the Initial
Liquidity Date
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(where such reduction shall be based on the aggregate market value of the
Registrable Securities distributed to CBA by Apollo and AEW on the day prior to
such transfer)), (ii) in the case of the Carell Holders, $100 million, and (iii)
in the case of any other Holders, the product of (x) the amount of Registrable
Securities received by such Holder at the Closing multiplied by (y) a fraction,
the numerator of which is the amount of Registrable Securities the Underwriters'
Representative of the Initial Underwriting believes, at the time the Initial
Underwriting Notice is delivered to the Company, must be sold to yield gross
proceeds of $125 million to Apollo (or, in the event that the Initial
Underwriting Notice is not delivered to the Company by the end of the Initial
Underwriting Notice Period, the amount of Registrable Securities that would be
need to be sold, based on the Market Value per share of Common Stock on the day
before the last day of the Initial Underwriting Notice Period, to yield gross
proceeds of $125 million), and the denominator of which is the amount of
Registrable Securities received by Apollo at the Closing.
"Xxxxxx Registration Rights" means the registration rights
provided for in the registration rights agreement, dated February 12, 1998, by
and among the Company, Xxxxx Xxxx and Xxxx Xxxxxxxx (the "Xxxxxx Holders"), as
in effect as of the date hereof, a complete and accurate copy of which has been
provided by the Company to Apollo and AEW.
"Market Value" means the average, rounded to the nearest cent
($0.01), of the closing price per share of Common Stock on the New York Stock
Exchange for the twenty (20) consecutive trading days ending on the trading day
immediately preceding the date in question.
"Maximum Number" when used in connection with an underwritten
offering, shall mean the number of shares of Common Stock that the Underwriters'
Representative has informed the Company may be included as part of such offering
without materially and adversely affecting the success or pricing of such
offering.
"Offering" means any Underwritten Offering, or any offering of
unregistered securities to a purchaser or purchasers for reoffering to select
investors in a transaction which is exempt from federal securities laws.
"Person" shall mean any natural person, firm, individual,
corporation, partnership, limited liability company, joint venture, business
trust, association, trust, company or other organization or entity, whether
incorporated or unincorporated.
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"Preferred Stock" means any shares of capital stock of the
Company or any Affiliate thereof which have preferential rights to dividends or
to amounts distributable upon liquidation of the Company.
"Prospectus" means the prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Public" means all stockholders of the Company, as of a given
date, excluding the Carell Holders, executive officers of the Company, members
of the Board of Directors of the Company, and all other stockholders of the
Company who then beneficially own at least 5% of the outstanding shares of
Common Stock.
"Publication Date" means the date on which the Company
initially publishes financial results reflecting the first thirty days of
combined operations of the Company and Holdings after the consummation of the
Merger.
"Registrable Securities" means, collectively, (i) the shares
of Common Stock issued to the Allright Holders in connection with the Merger or
pursuant to options or warrants held by the Allright Holders (the "Allright
Shares"), (ii) any stock or other securities into which or for which the
Allright Shares may hereafter be changed, converted or exchanged, (iii) any
other securities issued or distributed in respect of the Allright Shares by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, reorganization, merger, consolidation or otherwise, and (iv)
that number of shares of Common Stock that, when ultimately disposed of by the
Carell Holders in one or more transactions after the date of this Agreement,
will yield gross proceeds to the Carell Holders of $250 million (excluding
transfers by the Carell Holders to any purchasers up to that amount of shares of
Common Stock received by the Carell Holders pursuant to the contribution of
assets to the Company, as required by the Transaction Support Agreement, dated
as of the date hereof, by and among Monroe J. Carell, Jr., the Company, Apollo
and AEW (the "Exempted Transfers")).
"Registration Expenses" means any and all expenses incident to
performance of or compliance by the Company with its registration obligations
under Section 3, including, without limitation, (i) all SEC and securities
exchange
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registration and filing fees, (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel for any
underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) all fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange pursuant to Section 7(h), (v) the fees and
disbursements of counsel for the Company and of its independent public
accountants, (vi) any fees and disbursements of underwriters customarily paid by
the issuers or sellers of securities, and the reasonable fees and expenses of
any special experts retained in connection with the requested registration, and
(vii) the expenses incurred in connection with making "roadshow" presentations
and holding meetings with potential investors to facilitate the distribution and
sale of Registrable Securities.
"Registration Statement" means any registration statement of
the Company which covers Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statements including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations thereunder.
"SEC" means the Securities and Exchange Commission.
"Shelf Registration Date" means (i) in the event that the
Initial Underwriting is consummated, the date set forth in the underwriting
agreement for the Initial Underwriting as the first day after the closing of the
Initial Underwriting that the Company, Apollo, AEW and the Carell Holders will
be allowed to effect open market sales of shares of Common Stock without the
consent of the Underwriters' Representative, (ii) in the event that the Initial
Underwriting Notice is not given prior to the date nine months following the
Publication Date, such date or (iii) in the event that the Initial Underwriting
Notice is given but the Initial Underwriting is abandoned with the concurrence
of Apollo, AEW and the Carell Holders, the date of such abandonment.
"TIPS Registration Statement" means the shelf registration
statement filed on Form S-3 on June 1, 1998 (registration statements no.
333-52497 and 333-52497-01) as such registration statements may be amended or
supplemented from time to time.
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"Total Market Capitalization" means the aggregate market value
of all outstanding equity securities, Preferred Stock and Convertible Securities
of the Company, and the book value of all outstanding loan obligations and debt
instruments of the Company (excluding any Convertible Securities).
"Underwriting Amount" means that amount of shares of Common
Stock, which, when sold in an Underwritten Offering, would yield gross proceeds
of a given amount of money, as reasonably estimated by the owner of such shares
of Common Stock and the Underwriters' Representative of such Underwritten
Offering at the time such owner informs the Company of its desire to initiate,
or participate in, an Underwritten Offering.
"Underwriters' Representative" when used in connection with an
Underwritten Offering, shall mean the managing underwriter of such offering, or,
in the case of a co-managed underwriting, the managing underwriter designated as
the Underwriters' Representative by the co-managers.
"Underwritten Offering" shall mean a registration in which
securities of the Company are sold to one or more underwriters for reoffering to
the public.
2. Securities Subject to This Agreement. The securities entitled
to the benefits of this Agreement are the Registrable Securities. For the
purposes of this Agreement, Registrable Securities will cease to be Registrable
Securities when (i) a Registration Statement covering such Registrable
Securities has been declared effective under the Securities Act and they have
been disposed of pursuant to such effective Registration Statement, (ii) such
Registrable Securities are distributed to the public pursuant to Rule 144 and/or
Rule 145 (or any similar provision then in force) under the Securities Act,
(iii) such Registrable Securities shall have been otherwise transferred, new
certificates for such Registrable Securities not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
disposition of such Registrable Securities shall not require registration or
qualification of such Registrable Securities under the Securities Act or any
state securities or blue sky law then in force, or (iv) such Registrable
Securities shall have ceased to be outstanding.
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3. Registration Under the Securities Act.
(a) Initial Underwriting. (i) At any time after the
Publication Date and before the date nine months following the Publication Date
(the "Initial Underwriting Notice Period"), the Carell Holders, or Allright
Holders owning at least 80% of the Registrable Securities then owned by all the
Allright Holders, shall have the right to demand, by written notice (the
"Initial Underwriting Notice"), the Company to use its reasonable best efforts
to register under the Securities Act up to the Initial Underwriting Amount for
such Holder or Holders of Registrable Securities for resale by such Holder or
Holders in an Underwritten Offering (the "Initial Underwriting"). In the event
that one or more Holders deliver the Initial Underwriting Notice, the Company
shall then promptly mail written notice thereof (a "Company Notice") to all
other Holders, and then each such Holder may then elect to participate in the
Initial Underwriting by delivering to the Company, within fifteen days after
such Company Notice is given, a written notice specifying the number of
Registrable Securities such Holders wish to have registered for resale in the
Initial Underwriting up to but not exceeding such Holder's Initial Underwriting
Amount. All rights to demand the Initial Underwriting shall expire immediately
after an Initial Underwriting Notice is properly delivered to the Company, but
shall be subject to the reinstatement provisions contained in Section 3(g).
(ii) The Registrable Securities to be sold in the Initial
Underwriting (including pursuant to any underwriters' overallotment option)
shall be allocated among the various Holders participating in the Initial
Underwriting up to but not exceeding their respective Initial Underwriting
Amounts in the following order of priority: (A) subject to pro rata reduction to
the extent that any allocations are made pursuant to clause (C), each of Apollo
and AEW shall be entitled to receive (1) 50% of the first $100 million in gross
proceeds (or, if only one of them is participating, 100% of such gross
proceeds), (2) 0% of the next $50 million in gross proceeds, (3) 33 1/3% of the
next $150 million in gross proceeds (or, if only one of them is participating,
66 2/3% of such gross proceeds), and (4) 50% of the next $50 million in gross
proceeds (or, if only one of them is participating, 100% of such gross
proceeds); (B) the Carell Holders shall be entitled to receive (1) 0% of the
first $100 million in gross proceeds, (2) 100% of the next $50 million in gross
proceeds, (3) 33 1/3% of the next $150 million in gross proceeds, and (4) 0% of
the next $50 million in gross proceeds; and (C) any Allright Holders other than
Apollo or AEW shall be entitled to receive a percentage of the gross proceeds
allocated to Apollo and AEW hereunder equal to the percentage represented by the
number of Registrable Securities then held by such Allright Holder divided by
the number of Registrable
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Securities then held by all Allright Holders participating in the Initial
Underwriting. In the event that there shall be gross proceeds in excess of $350
million and the Company shall determine not to allocate such excess to shares of
Common Stock to be sold by the Company, the Holders shall be allocated
additional Registrable Securities to be sold in proportion to their holding of
all remaining Registrable Securities.
(b) Shelf Registration. (i) The Company shall use its
reasonable best efforts to promptly process, file and cause to become effective
a Registration Statement on Form S-3 (the "Shelf") for an offering to be made on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act (or
any similar rule that may be adopted by the SEC) and permitting sales in
ordinary course brokerage or dealer transactions not involving an Underwritten
Offering, the initial filing to be made not later than 30 days before the Shelf
Registration Date in the event that the Initial Underwriting is consummated or
30 days after the Shelf Registration Date in the event that the Initial
Underwriting Notice is not given or the Initial Underwriting is abandoned. Each
Allright Holder which owns, on the date of the initial filing of the Shelf (the
"Initial Filing Date"), Registrable Securities (each such Holder, an "Eligible
Holder") shall have the right to resell such Registrable Securities under the
Shelf until the date that such Eligible Holder sells all of such Registrable
Securities, whether or not under the Shelf (such Eligible Holder's "Termination
Date"). The Carell Holders shall have the right to resell that amount of
Registrable Securities under the Shelf which has an aggregate Market Value, on
the Initial Filing Date, of (a) $150 million, plus (b) the Initial Underwriting
Amount of the Carell Holders, less (c) the gross proceeds received by the Carell
Holders in all sales of Registrable Securities before the Initial Filing Date
(excluding gross proceeds received in the Exempted Transfers). The Carell
Holders shall lose their right to sell under the Shelf once they have sold, in
one or more transactions occurring after the Initial Filing Date, whether in the
Initial Underwriting, the Extra Underwriting, under the Shelf or otherwise, at
least that amount of shares of Common Stock equal to the amount of Registrable
Securities of the Carell Holders registered under the Shelf pursuant to this
Section 3(b)(i) (the Carell Holders' "Termination Date"). The Company agrees to
use its reasonable best efforts to keep the Shelf continuously effective and
usable for resale of Registrable Securities until all Eligible Holders lose
their rights to resell Registrable Securities under the Shelf.
(ii) The Company agrees to include within the Method of
Distribution for the Shelf the possible distribution by the Allright Holders to
their respective investors of the Registrable Securities held by them; provided,
that
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nothing herein shall restrict an Allright Holder from distributing Registrable
Securities to its investors under the Shelf before it receives gross proceeds of
at least its Initial Underwriting Amount, or sells an amount of Registrable
Securities equal to at least its Initial Underwriting Amount. No Allright Holder
may, however, transfer to its investors any registration rights granted
hereunder when distributing Registrable Securities to such investors, unless the
Company has failed to cause the Shelf to become effective within 45 days after
the Shelf Registration Date.
(iii) Each Allright Holder agrees that, in the event that it
shall have received gross proceeds of at least its Initial Underwriting Amount,
or sold that amount of Registrable Securities equal to at least its Initial
Underwriting Amount, with respect to one or more sales of Registrable Securities
(whether in the Initial Underwriting, the Extra Underwriting (as defined in
Section 3(c)), resales under the Shelf or otherwise), it shall be restricted
from reselling Registrable Securities under the Shelf until the Carell Holders
shall have received gross proceeds of at least $100 million in one or more sales
of Registrable Securities (whether in the Initial Underwriting, the Extra
Underwriting, resales under the Shelf or otherwise) after the date of this
Agreement. The Carell Holders agree that, in the event that they shall have
received gross proceeds of at least $100 million with respect to one or more
sales of Registrable Securities (whether in the Initial Underwriting, the Extra
Underwriting, resales under the Shelf or otherwise), they shall be restricted
from reselling Registrable Securities under the Shelf until each of Apollo and
AEW shall have received gross proceeds of at least its Initial Underwriting
Amount in one or more sales of Registrable Securities (whether in the Initial
Underwriting, the Extra Underwriting, resales under the Shelf or otherwise)
after the Closing. Each of Apollo, AEW and the Carell Holders agrees to promptly
notify the Company and each other in writing at such time that it has received
sufficient gross proceeds for it to become restricted from resales pursuant to
this Section 3(b)(iii). Notwithstanding the foregoing, nothing herein shall
restrict the ability of any Holder to distribute Registrable Securities to its
investors.
(iv) In the event that one or more Holders exercises a Demand
Right (as defined in Section 3(c)), then each Eligible Holder (including the
Holder or Holders exercising such Demand Right and regardless of whether or not
such Eligible Holder elects to participate in the Extra Underwriting related to
such Company Notice) may not sell any Registrable Securities under the Shelf at
any time after 30 days after receiving such Company Notice and before the Extra
Underwriting End Date; provided, that nothing herein shall limit the ability of
an Allright Holder to distribute Registrable Securities to its investors.
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(v) The Company shall have the right, at any time after the
Allright Holders, collectively, own less than 7% of all the Registrable
Securities received by the Allright Holders in the Merger, to terminate the
Shelf and promptly process and file, and use its reasonable best efforts to
cause to become effective, a Registration Statement on Form S-3 (the "Second
Shelf") for an offering to be made on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act (or any similar rule that may be adopted by
the SEC) and permitting sales in ordinary course brokerage or dealer
transactions not involving an Underwritten Offering. The Company must register
for resale under the Second Shelf all Registrable Securities that were
registered for resale under the Shelf at the time the Shelf is terminated, but
may also register for sale under the Second Shelf all shares of Common Stock,
and any other securities of the Company, that the Company desires to register
for resale at such time. The Company shall cause the Second Shelf to remain
effective at least up to the date until which the Company would, under the terms
of this Agreement, be required to maintain the effectiveness of the Shelf, if
otherwise not terminated pursuant to this Section 3(b)(v). The Holders shall not
have any restrictions on their ability to resell Registrable Securities under
the Second Shelf which are greater than the restrictions on their ability to
resell Registrable Securities under the Shelf.
(c) Extra Underwriting. (i) In the event that, as of the date
of the giving of the Extra Underwriting Notice referred to below, either Apollo
or AEW shall have failed to receive gross proceeds of at least its Initial
Underwriting Amount from selling Registrable Securities or the Carell Holders
shall have failed to receive gross proceeds of at least $100 million from
selling Registrable Securities, each of (A) AEW and/or Apollo, if AEW and/or
Apollo shall have failed to receive such gross proceeds, together with all other
Allright Holders who have failed to sell that amount of Registrable Securities
equal to at least their respective Initial Underwriting Amounts, by agreement of
Allright Holders owning at least 60% of the Registrable Securities then owned by
all the Allright Holders, (B) and the Carell Holders, if they have failed to
receive gross proceeds of at least their Initial Underwriting Amount, shall have
the right, at any time commencing on the Shelf Registration Date and ending on
the twelve month anniversary of the Shelf Registration Date (the "Extra
Underwriting Notice Period"), to demand (a "Demand Right"), by written notice
(an "Extra Underwriting Notice"), the Company to use its reasonable best efforts
to register under the Securities Act up to the Initial Underwriting Amount of
such Holder or Holders, less the amount of gross proceeds received by, or the
amount of Registrable Securities sold by, such Holder in the Initial
Underwriting, if any, and in any other sales of Registrable Securities after the
Shelf Registration Date, for resale
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by such Holder or Holders in an Underwritten Offering (the "Extra
Underwriting"). In the event that one or more of such Holders deliver the Extra
Underwriting Notice, the Company shall then promptly mail a Company Notice to
all other Holders who shall have failed to receive gross proceeds of at least
their respective Initial Under writing Amounts, or to sell that amount of
Registrable Securities equal to at least their respective Initial Underwriting
Amounts, and then each such other Holder may then elect to participate in the
Extra Underwriting by delivering to the Company, within fifteen days after such
Company Notice is given, a written notice specifying the number of Registrable
Securities such Holders wish to have registered for resale in the Initial
Underwriting up to but not exceeding such Holder's Initial Underwriting Amount,
less the amount of gross proceeds received by such Holder, or that amount of
Registrable Securities sold by such Holder, in the Initial Underwriting, if any,
and in any other sales of Registrable Securities after the date hereof. The
Company shall use its reasonable best efforts to promptly (but in no event later
than fifteen Business Days after receipt of the Extra Period Demand Notice)
supplement or amend the Shelf, including the Method of Distribution or similar
section therein, or, in the event that the Shelf shall not have been filed, to
promptly process, file and cause to become effective a Registration Statement on
Form S-3, in order to cover registration of the resale of all of the Registrable
Securities properly requested to be registered pursuant to this Section 3(c)(i)
by the Holders. All Demand Rights shall expire immediately after an Extra
Underwriting Notice is properly delivered to the Company, but shall be subject
to the reinstatement provisions contained in Section 3(g).
(ii) The Registrable Securities to be sold in the Extra
Underwriting (including pursuant to any underwriters' overallotment option)
shall be allocated among the various Holders participating in the Extra
Underwriting up to but not exceeding their respective Initial Underwriting
Amounts in the same order of priority set forth in Section 3(a)(ii), except that
for purposes of this Section 3(c)(ii) determinations of the gross proceeds
received by any Holder shall be deemed to include gross proceeds received from
the sale of any Registrable Securities following the date hereof and through and
including the Extra Underwriting, and determinations of the amount of
Registrable Securities sold by any Holder shall be deemed to include any sales
of Registrable Securities following the date hereof and through and including
the Extra Underwriting, but shall not be deemed to include the distribution of
Registrable Securities by a Holder to its investors.
(d) Incidental Registration. If at any time the Company
proposes to register any of its Common Stock under the Securities Act after the
date hereof
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(other than in connection with any acquisition or business combination
transaction and other than in connection with stock options and employee benefit
plans and compensation) either in connection with a primary offering for cash
for the account of the Company, a secondary offering or a combined primary and
secondary offering, the Company will, each time it intends to effect such a
registration, give a Company Notice to all Holders whose Termination Date shall
not have occurred at least 15 Business Days prior to the initial filing of a
registration statement with the SEC pertaining thereto, informing such Holders
of its intent to file such registration statement and of the Holders' right to
request the registration of the Registrable Securities held by the Holders. Upon
the written request of one or more of the Holders made within 10 business days
after any such Company Notice is given (which request shall specify the
Registrable Securities intended to be disposed of by each such Holder, and,
unless the applicable registration is intended to effect a primary offering of
Common Stock for cash for the account of the Company, the intended method of
distribution thereof), the Company will use its reasonable best efforts to
effect the registration under the Securities Act of all Registrable Securities,
which the Company has been so requested to register by one or more Holders to
the extent required to permit the disposition (in accordance with the intended
methods of distribution thereof or, in the case of a registration which is
intended to effect a primary offering for cash for the account of the Company,
in accordance with the Company's intended method of distribution) of the
Registrable Securities so requested to be registered, including, if necessary,
by filing with the SEC a post-effective amendment or a supplement to the
registration statement filed by the Company or the related prospectus or any
document incorporated therein by reference or by filing any other required
document or otherwise supplementing or amending the registration statement filed
by the Company, if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such registration statement or
by the Securities Act, any state securities or blue sky laws, or any rules and
regulations thereunder; provided, however, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or to
delay such registration of the securities, the Company shall give written notice
of such determination to each Holder of Registrable Securities and, thereupon,
(A) in the case of a determination not to register, the Company shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration, and (B) in the case of a determination to delay such
registration, the Company shall be permitted to delay registration of any
Registrable Securities requested to be
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included in such registration statement for the same period as the delay in
registering such other securities.
(e) Underwriter Limitations. (i) If, in connection with an
Underwritten Offering other than the Initial Underwriting or the Extra
Underwriting, the Underwriters' Representative of the offering registered
thereon shall inform the Company in writing that in its opinion there is a
Maximum Number of shares of Common Stock that may be successfully included
therein; then (a) in the event such Registration Statement relates to an
offering initiated by the Company of Common Stock being offered for the account
of the Company, the Company may include in such registration the number of
shares it proposes to offer and, if such number is less than the Maximum Number,
then the number of shares of Common Stock requested to be included in such
registration by any Person other than the Company may be reduced, pro rata in
proportion to the number of shares of Common Stock owned by such Persons
requesting to participate in such offering, to the extent necessary to reduce
the respective total number of shares of Common Stock requested to be included
in such offering to the Maximum Number, and (b) in the event such a Registration
Statement is initiated by any Person other than the Company or a Holder, such
Person shall have the right, in its sole discretion, to include in such
registration the number of shares of Common Stock it proposes to offer and, if
such number is less than the Maximum Number, then the number of shares of Common
Stock requested to be included by any other Person may be reduced pro rata in
proportion to the number of shares of Common Stock owned by such Persons, to the
extent necessary to reduce the respective total number of shares of Common Stock
requested to be included in such offering to the Maximum Number.
(ii) Notwithstanding Section 3(e)(i), in the event that the
Company decides to conduct an Underwritten Offering other than the Initial
Underwriting and the Extra Underwriting, and at such time any of Apollo, AEW or
the Carell Holders shall have failed to receive gross proceeds from the sale of
Registrable Securities since the date hereof at least equal to at least their
respective Initial Underwriting Amounts, and if the Underwriters' Representative
of such Underwritten Offering shall inform the Company in writing that in its
opinion there is a Maximum Number of shares of Common Stock that may be
successfully included therein beyond the number of shares to be sold by the
Company, then each of the above Holders who shall have so failed to receive such
gross proceeds, and all other Holders who shall have failed to sell that amount
of Registrable Securities equal to their respective Initial Underwriting
Amounts, may include in such registration that number of Registrable Securities
which, in the opinion of the Underwriters' Representative,
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when sold would yield gross proceeds sufficient to bring each such Holder's
gross proceeds from the sale of Registrable Securities after the date hereof to
such Holder's Initial Underwriting Amount, or would allow each such Holder to
sell an amount of Registrable Securities which would bring each such Holder's
amount of Registrable Securities sold to its Initial Underwriting Amount. To the
extent that the Maximum Number is insufficient to accomplish the foregoing, the
Registrable Securities to be sold in such Underwritten Offering (including
pursuant to any underwriters' overallotment option) shall be allocated among the
various Holders participating in such Underwritten Offering up to but not
exceeding their respective Initial Underwriting Amounts in the same order of
priority set forth in Section 3(a)(ii).
(iii) Notwithstanding the foregoing, any reduction of the
shares of Common Stock requested by a Person to be included in any Registration
Statement pursuant to this Section 3(e) shall be limited to the extent such
reduction would place the Company in breach of any presently existing
contractual obligations that it might have.
(f) Company Limitations. (i) The Company hereby agrees that,
until the earlier to occur of the Extra Underwriting End Date and the Initial
Liquidity Date, it will not (i) sell any shares of Common Stock other than (A)
pursuant to the Merger, (B) to the Carell Holders, to the extent the issuance of
such shares of Common Stock is required by Section 5.14 of the Merger Agreement,
(C) pursuant to mergers, acquisitions and purchases involving the Company and/or
its Affiliates whereby the Company issues shares of Common Stock which are not
registered under the Securities Act and which either (1) have an aggregate value
of no more than $10 million (where the value of a share of Common Stock issued
pursuant to a given transaction is determined based on the closing price per
share of Common Stock on the trading day immediately preceding the date on which
such transaction occurred), or (2) are not transferable by the holders thereof
for at least two years from the respective dates of issuance, or (D) upon
exercise of options or conversion of other securities outstanding as of the date
of this Agreement, or options or other securities issued to employees, officers
and directors after the date of this Agreement in the ordinary course of
business consistent with past practice, with or without registration under the
Securities Act, without first providing for the sale of Registrable Securities
as contemplated by Section 3(a)(ii), (ii) permit any Underwritten Offering, not
for the account of the Company, involving the sale of shares of Common Stock
other than the Initial Underwriting, the Extra Underwriting, the TIPS
Registration Statement and any Underwritten Offering required by the Xxxxxx
Registration Rights, (iii) grant to any Holder, or any Person included within
the Carell Holders, registration rights not provided for in this Agreement as of
the date hereof, or waive any conditions herein with respect to any Holder, or
any Person included within
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the Carell Holders, without waiving such conditions with respect to all other
Holders, (iv) otherwise facilitate a sale by any Person with the Holders of
shares of Common Stock, (v) grant registration rights to any Person which would
permit such Person to participate in the Initial Underwriting, the Shelf or the
Extra Underwriting, or to have such Person's shares of Common Stock registered
for resale, prior to the Initial Liquidity Date, or (vi) grant to any Person
registration rights that contemplate Underwritten Offerings which preclude the
exercise of the customary "piggyback" rights granted to certain Holders in
Section 3(d).
(ii) Furthermore, during the period of time beginning on the
date hereof and ending on the Shelf Registration Date, or, in the event that the
Underwriters' Representative of the Initial Underwriting provides the Company
with its written consent to a plan by the Company to conduct an Offering of
Preferred Stock or Convertible Securities during the Lockout Period (as
hereinafter defined) related to the Initial Underwriting, ending on the closing
of the Initial Underwriting, the Company may not sell any shares of Preferred
Stock or Convertible Securities, and during the period of time beginning on the
day after the Shelf Registration Date and ending on the earlier to occur of the
Extra Underwriting End Date and the Initial Liquidity Date, the Company may not
sell shares of Preferred Stock and/or Convertible Securities if, after
consummation of such sale, the aggregate market value of the Preferred Stock
and/or Convertible Securities outstanding (as calculated on the day such
transaction is completed) is greater than the lesser of (a) 20% of the Company's
Total Market Capitalization (as calculated on the day such transaction is
completed), and (b) 50% of the market value of the outstanding shares of Common
Stock held by the Public on the day such transaction is completed. The Company
hereby agrees that in the event that it elects to conduct an Offering of
Preferred Stock or Convertible Securities, it will promptly mail a Company
Notice to all Holders who shall have then failed to receive gross proceeds of at
least their respective Initial Underwriting Amounts, or to sell that amount of
Registrable Securities equal to at least their respective Initial Underwriting
Amounts. Each such Holder may then elect to participate in such Offering by
delivering to the Company, within fifteen days after such Company Notice is
given, a written notice specifying the number of Registrable Securities such
Holder wishes to have sold in such Offering up to but not exceeding such
Holder's Initial Underwriting Amount, less the amount of gross proceeds received
by such Holder, or that amount of Registrable Securities sold by such Holder, in
the Initial Underwriting, if any, and in any other sales of Registrable
Securities after the date hereof. In the event that one or more Holders elects
to
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participate in an Offering, the Company hereby agrees that it will include the
offering of Registrable Securities by such Holder or Holders in any "roadshow"
marketing efforts conducted by the Company in connection with such Offering. In
the event that a Holder sells Registrable Securities in an Offering, regardless
of whether or not such Offering is covered by a registration statement filed by
the Company, such Holder shall be subject to the provisions of Section 6 of this
Agreement, to the extent that the Underwriters' Representative, or, in the event
an Offering is not conducted on a "firm commitment" underwritten basis, the
substantial equivalent of an Underwriters' Representative (the "Lead
Purchaser"), asks participating sellers to refrain from selling shares of Common
Stock during a Lockout Period (as hereinafter defined). No Holder, however,
shall be obligated to refrain from selling shares of Common Stock during a
Lockout Period relating to an Offering of Convertible Securities or Preferred
Stock if such Holder did not participate in such Offering.
(iii) In the event that Holders participate in an Offering of
Convertible Securities or Preferred Stock, then the Extra Underwriting Notice
Period shall be deemed not to continue to run during that period of time
beginning on the first date that a Holder or Holders notifies the Company of its
or their desire to participate in such Offering, and ending on the date that the
Underwriters' Representative or the Lead Purchaser of such Offering selects as
the first day that the participating sellers may sell shares of Common Stock
after the closing of such Offering, or, in the event that such Offering is not
consummated, on the date such Offering is abandoned (an "Offering End Date").
Such extension of the Extra Underwriting Notice Period shall only be deemed to
occur, however, in the event that an Offering End Date occurs before the Initial
Liquidity Date. For purposes of this Agreement, participation in an Offering of
Convertible Securities or Preferred Stock by one or more Holders shall not be
deemed to be an exercise of a Demand Right or a right to demand the Initial
Underwriting.
(g) Pricing Determinations. (i) The Carell Holders and (ii)
representatives of the Allright Holders electing to participate in the Initial
Underwriting and/or the Extra Underwriting, such representatives to be selected
by Allright Holders owning a majority of the Registrable Securities being
offered by the Allright Holders for resale in such Underwritten Offering, shall
mutually determine the offering price per share and underwriting discounts that
shall apply in the Initial Underwriting and the Extra Underwriting, subject to
the right of (i) any such Holder to withdraw its Registrable Securities from
such Underwritten Offering should it be dissatisfied with the proposed offering
price per share or underwriting discount, and
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(ii) any non-withdrawing Holders to include additional Registrable Securities in
such Underwritten Offering to replace shares withdrawn by another Holder. In the
event that the Company refuses to execute the underwriting agreement related to
the Initial Underwriting or the Extra Underwriting, and subsequently the Initial
Underwriting or the Extra Underwriting, as the case may be, is abandoned, then
all rights to demand the Initial Underwriting or the Extra Underwriting, as the
case may be, shall be restored, and the Initial Underwriting Notice Period or
the Extra Underwriting Notice Period, as the case may be, shall be reinstated
for that amount of days equal to the difference between (x) the amount of days
comprising such period, less (y) the amount of days that lapsed in such period
before the Initial Underwriting Notice or the Extra Underwriting Notice, as the
case may be, was delivered to the Company.
(h) Xxxxxx Registration Rights. The registration rights
granted hereunder shall be subordinate to the Xxxxxx Registration Rights;
provided, that, in the event that the Xxxxxx Holders exercise a "demand" Xxxxxx
Registration Right during the Extra Underwriting Notice Period and before the
Extra Underwriting Notice is properly delivered to the Company, or during the
Initial Underwriting Notice Period and before the Company receives a demand for
the Initial Underwriting, then the Extra Underwriting Notice Period or the
Initial Underwriting Notice Period, as the case may be, shall be deemed not to
continue to run during that period of time beginning on the date a "demand"
Xxxxxx Registration Right is exercised and ending on the date that the
Underwriters' Representative of the Underwritten Offering related to such
exercise selects as the first day that the Company and the Xxxxxx Holders may
sell shares of Common Stock after the closing of such Underwritten Offering, or,
in the event that such Underwritten Offering is not consummated, on the
date such Underwritten Offering is abandoned (a "Xxxxxx Offering End Date").
Such extension of the Extra Underwriting Notice Period or the Initial
Underwriting Notice Period shall only be deemed to occur, however, in the event
that a Xxxxxx Offering End Date occurs before the Initial Liquidity Date.
(i) Sales of Registrable Securities. For purposes of this
Agreement, the following transfers of Registrable Securities shall not be
deemed to be "sales" of Registrable Securities: (i) the transfers of shares
among Persons comprising an individual Holder, (ii) pledges of shares permitted
under Section 11(d), (iii) transfers of shares by Apollo and AEW to CBA, (iv)
the Exempted Transfers, (v) donations of shares by the Holders which are made to
Charitable Organizations, and (vi) any distribution of shares by an Allright
Holder to its investors.
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4. Blackout Period. The Company shall be entitled to elect that a
Registration Statement not be usable, for a reasonable period of time, but not
in excess of 30 days, with respect to a Registration Statement relating to the
Initial Underwriting, or 90 days, with respect to a Registration Statement
related to any other sale of Registrable Securities (a "Blackout Period"), if
the Company determines in good faith that the registration and distribution of
Registrable Securities (or the use of the Registration Statement or related
Prospectus) would interfere with any pending material financing, acquisition,
corporate reorganization or any other material corporate development involving
the Company or any of its subsidiaries or would require premature disclosure
thereof and promptly gives the Holders of Registrable Securities written notice
of such determination, and if requested by Holders, the Company will promptly
deliver to it or them a general statement of the reasons for such postponement
or restriction on use and an approximation of the anticipated delay; provided,
however, that the aggregate number of days included in all Blackout Periods,
when taken together with any Lockout Periods and Suspension Periods, during any
consecutive 12 months after the Publication Date shall not exceed 180 days (or
such longer period of time, to the extent that the Underwriters' Representative
of the Initial Underwriting requests a Lockout Period for the Company and the
Holders of longer than 90 days after the Initial Underwriting).
5. Selection of Underwriters. Subject to the right of Central, the
Carell Holders and representatives of the Allright Holders electing to
participate in the Initial Underwriting and/or the Extra Underwriting, such
representatives to be selected by Allright Holders owning a majority of the
Registrable Securities being offered for resale by the Allright Holders in such
Underwritten Offering, to jointly determine otherwise, (i) Bear Xxxxxxx & Co.
Inc. shall be the lead-managing underwriter of the Initial Underwriting and the
Extra Underwriting, shall manage the "book" related to such Underwritten
Offerings, and shall be the Underwriters' Representative of such Underwritten
Offerings and (ii) NationsBanc Xxxxxxxxxx Securities LLC and X.X. Xxxxxxxx & Co.
shall each be a co-managing underwriter with respect to such Underwritten
Offerings.
6. Holdback Agreement.
(a) If so requested by the Underwriters' Representative in
connection with an offering of shares of Common Stock covered by a registration
statement filed by the Company, the Holders participating in such Underwritten
Offering, and all other Holders who are Affiliates of Central at the time of
such Underwritten Offering, shall agree not to effect any sale or distribution
of the
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Registrable Securities other than pursuant to such Underwritten Offering,
including a sale pursuant to Rule 144, without the prior written consent of the
Underwriters' Representative (which if given to any such Holder shall be deemed
to be given to all such Holders), during the 7-day period prior to, and during
the 90-day period beginning on, the date such registration statement or
amendment to such registration statement is declared effective under the
Securities Act by the SEC or, with respect to the Initial Underwriting, for a
longer period of time if so requested by the Underwriters' Representative of the
Initial Underwriting (any such period, a "Lockout Period"); provided that the
Holders are timely notified of such effective date in writing by the Company or
the Underwriters' Representative. The Holders shall not be subject to Lockout
Periods for longer than 97 days (or such longer period of time, to the extent
that the Underwriters' Representative of the Initial Underwriting requests a
Lockout Period for the Company and the Holders of longer than 90 days after the
Initial Underwriting) during any 12-month period and shall not be subject to
Lockout Periods, when taken together with any Blackout Periods and Suspension
Periods, during any consecutive 12 months after the Publication Date in excess
of 180 days (or such longer period of time, to the extent that the Underwriters'
Representative of the Initial Underwriting requests a Lockout Period for the
Company and the Holders of longer than 90 days after the Initial Underwriting).
A Holder shall no longer be subject to such restrictions following such Holder's
Termination Date.
(b) If so requested by the Underwriters' Representative in
connection with an Underwritten Offering of any Registrable Securities, the
Company shall agree not to effect any sale or distribution of shares of Common
Stock without the prior written consent of the Underwriters' Representative
(other than in connection with any acquisition or business combination
transaction and other than in connection with stock options and employee benefit
plans and compensation) during the 7-day period prior to, and during the 90-day
period beginning on, the date the registration statement or amendment to a
registration statement relating to such Underwritten Offering is declared
effective under the Securities Act by the SEC or, with respect to the Initial
Underwriting, for a longer period of time if so requested by the Underwriters'
Representative of Initial Underwriting, and shall use its reasonable best
efforts to obtain and enforce similar agreements from any other Persons if
requested by the Underwriters' Representative.
(c) Notwithstanding anything else in this Section 6 to the
contrary, no Holder shall be precluded from distributing to its investors the
Registrable Securities as set forth in Section 3(b)(ii).
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7. Registration Procedures. If and whenever the Company is
required to use its reasonable best efforts to effect or cause the registration
of any Registrable Securities under the Securities Act as provided in this
Agreement and the Merger Agreement, the Company will as expeditiously as
possible and without limiting any time period set forth elsewhere in this
Agreement:
(a) Subject to the requirements to file the Registration
Statement on Form S-4 pursuant to the Merger Agreement, prepare and file with
the SEC a Registration Statement with respect to such Registrable Securities on
a form for which the Company then qualifies or which counsel for the Company
shall deem appropriate, and which form shall be available for the sale of the
Registrable Securities in accordance with the intended methods of distribution
thereof, and use its reasonable best efforts to cause such Registration
Statement to become effective as promptly as practicable after filing and to
keep such Registration Statements effective as provided in Section 3; provided
that, a reasonable time before filing a Registration Statement or Prospectus or
any amendments or supplements thereto (other than reports required to be filed
by it under the Exchange Act and the rules and regulations adopted by the SEC
thereunder), the Company will furnish to the Holders of Registrable Securities
covered by such Registration Statement and their counsel for review and comment
copies of all documents proposed to be filed;
(b) prepare and file with the SEC amendments and
post-effective amendments to each such Registration Statement and such
amendments and supplements to the Prospectus used in connection therewith as
may be necessary to maintain the effectiveness of such registration or as may be
required by the rules, regulations or instructions applicable to the
registration form utilized by the Company or by the Securities Act for shelf
registration or otherwise necessary to keep such Registration Statement
effective for the applicable period and cause the Prospectus as so supplemented
to be filed pursuant to Rule 424 under the Securities Act, and to otherwise
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement until such time as all
of such securities have been disposed of in accordance with the intended methods
of disposition set forth in such Registration Statement and Prospectus;
(c) furnish to each Holder of such Registrable Securities such
number of copies of such Registration Statement and of each amendment and
post-effective amendment thereto (in each case including all exhibits), the
Prospectus and Prospectus supplement, as applicable, and such other documents as
such Holder may
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reasonably request in order to facilitate the disposition of the Registrable
Securities by such Holder (the Company hereby consenting to the use (subject to
the limitations set forth in the last paragraph of this Section 7) of the
Prospectus or any amendment or supplement thereto in connection with such
disposition);
(d) use its reasonable best efforts to register or qualify
such Registrable Securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdictions as each Holder shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
Holder, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
where, but for the requirements of this Section 7(d), it would not be obligated
to be so qualified, to subject itself to taxation in any such jurisdiction, or
to consent to general service of process in any such jurisdiction;
(e) notify each Holder of any such Registrable Securities
covered by such Registration Statement at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in Section 7(b), of the Company's becoming aware
that the Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing, and at the request
of any such Holder prepare and furnish to such Holder a reasonable number of
copies of an amendment or supplement to the Registration Statement or related
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such 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 not misleading in
light of the circumstances then existing;
(f) notify each Holder of Registrable Securities covered by
such Registration Statement at any time
(1) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect
to the Registration Statement or any post-effective amendment,
when the same has become effective,
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(2) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus
or for additional information, and of any comments, oral or
written, by the SEC with respect thereto,
(3) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose,
(4) if at any time the representations and warranties
of the Company contemplated by paragraph (i)(1) below cease to
be true and correct, and
(5) of the receipt by the Company of any notification
with respect to the suspension of qualification or exemption
from qualification of the Registrable Securities for offering
or sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose;
(g) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than eighteen
months) after the effective date of the Registration Statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations promulgated thereunder;
(h) cause all such Registrable Securities to be listed on any
securities exchange on which the Common Stock is then listed, if such
Registrable Securities are not already so listed and if such listing is then
permitted under the rules of such exchange, and to provide a transfer agent,
CUSIP number and registrar for such Registrable Securities covered by such
Registration Statement no later than the effective date of such Registration
Statement;
(i) enter into agreements (including underwriting agreements)
and take all other appropriate actions in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Offering:
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(1) make such representations and warranties to the
Holders of such Registrable Securities, limited, as to such
Holders, to the extent such representations and warranties are
based solely on representations and warranties made by such
Holders, and the underwriters, if any, and agree to such
indemnification and contribution agreements, in form,
substance and scope as are customarily made by issuers to
underwriters in comparable underwritten offerings;
(2) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
underwriters, if any, the Holders of the Registrable
Securities being sold) addressed to each such Holder and the
underwriters, if any, covering the matters customarily covered
in opinions requested in comparable underwritten offerings and
such other matters as may be reasonably requested by such
Holders and such underwriters;
(3) obtain "cold comfort" letters and updates thereof
from the Company's independent certified public accountants
addressed to the selling Holders of Registrable Securities and
the underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with comparable
underwritten offerings;
(4) if requested, provide the indemnification in
accordance with the provisions and procedures of Section 9
hereof to all parties to be indemnified pursuant to said
Section; and
(5) deliver such documents and certificates as may be
reasonably requested by Apollo, AEW or the Carell Holders and
the underwriters, if any, to evidence compliance with clause
(f) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company;
provided, that the matters set forth in this Section 7(i) shall be effected at
each closing under any underwriting or similar agreement as and to the extent
required thereunder and that nothing in this Section 7(i) shall be interpreted
in any manner
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which would increase the liability of the Company to the Holders beyond those
provided for in Section 9;
(j) cooperate with the Holders of Registrable Securities
covered by such Registration Statement and the underwriter or underwriters, if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing the securities to be sold under
such Registration Statement, and enable such securities to be in such
denominations and registered in such names as the underwriter or underwriters,
if any, or such Holders may reasonably request;
(k) if requested by the underwriter or underwriters or a
Holder of Registrable Securities being sold in connection with an Underwritten
Offering, immediately incorporate in a Prospectus supplement or post-effective
amendment such information as the underwriters and the Holders of the
Registrable Securities being sold, agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the principal amount of
Registrable Securities being sold to such underwriters, the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the underwritten offering of the Registrable Securities to be sold in such
offering and make all required filings of such Prospectus supplement or
post-effective amendment promptly upon being notified of the matters of be
incorporated in such Prospectus supplement or post-effective amendment;
(l) in the event of the Initial Underwriting and the Extra
Underwriting, participate in any "roadshow" marketing efforts reasonably
requested by the underwriters; and
(m) make available for inspection by any Holder of Registrable
Securities included in such Registration Statement any underwriter participating
in any disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by any such Holder or underwriter
(collectively, the "Inspectors"), all financial and other records and other
information, pertinent corporate documents and properties of any of the Company
and its subsidiaries and affiliates (collectively, the "Records"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility.
The Company may require each Holder of Registrable Securities
as to which any registration is being effected to furnish the Company with such
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information regarding such Holder and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon
receipt of any notice (the "Suspension Notice") from the Company of the
happening of any event of the kind described in Section 7(e), such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus or Registration Statement covering such Registrable Securities until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 7(e), and, if so directed by the Company, such Holder
will use its reasonable best efforts to deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. The Company will use its reasonable best
efforts to ensure that no Suspension Period exceeds 30 days. The Company shall
not be permitted to give more than one Suspension Notice during any period of 12
consecutive months or to cause the aggregate number of days included in all
Suspension Periods, when taken together with any Blackout Periods and Lockout
Periods, during any consecutive 12 months after the Publication Date to exceed
180 days (or such longer period of time, to the extent that the Underwriters'
Representative of the Initial Underwriting requests a Lockout Period for the
Company and the Holders of longer than 90 days after the Initial Underwriting).
8. Registration Expenses. With respect to the Initial Underwriting and
the Extra Underwriting but not any other Underwritten Offering in which they may
participate, the Holders participating as sellers shall, on a pro-rata basis
based on the amount of Registrable Securities sold by each seller in such
Underwritten Offering, pay all Registration Expenses incurred in connection with
the Registrable Securities sold by such holders; provided, that if, within two
years following the closing of either such Underwritten Offering, the Company
provides reimbursement of any such expenses to any Holder, it will provide pro
rata reimbursement to all Holders. Each such Holder will also be responsible for
the payment of its own underwriting discounts, commissions and transfer taxes,
if any, relating to the sale or disposition of such Registrable Securities and
any of its own expenses, including the fees and expenses of any counsel retained
by it.
9. Indemnification; Contribution.
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(a) Indemnification by the Company. The Company agrees to
indemnify each Holder of Registrable Securities, its officers and directors and
each Person who controls such Holder (within the meaning of the Securities Act)
and any agent or investment adviser thereof against all losses, claims, damages,
liabilities and expenses (including reasonable attorneys' fees and expenses of
investigation) incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation arising out of or based upon (i) any
untrue or alleged untrue statement of material fact contained in a Registration
Statement, any Prospectus or preliminary Prospectus, or any amendment or
supplement to any of the foregoing or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a Prospectus or a preliminary Prospectus,
in light of the circumstances then existing) not misleading, except in each case
insofar as the same arise out of or are based upon, any such untrue statement or
omission made in reliance on and in conformity with (i) information with
respect to such indemnified party furnished in writing to the Company by such
indemnified party or its counsel expressly for use therein, or (ii) with respect
to Apollo and AEW, the representations and warranties made by Holdings in the
Merger Agreement and the schedules attached thereto, but only to the extent that
such representations and warranties were incorrect as of the Closing and the
alleged inaccuracies or omissions relate to periods preceding the Closing;
provided, that the release of the Company's indemnification obligations pursuant
to clause (ii) will be limited (x) to the extent that the Company becomes aware
that a representation or warranty made by Holdings in the Merger Agreement and
the schedules thereto is incorrect or incomplete before the effectiveness of the
Registration Statement, the Prospectus or preliminary Prospectus, or any
amendment or supplement to any of the foregoing, containing such untrue
statement or omission or (y) to the extent that the Company became aware of such
incorrectness or incompleteness after the effectiveness of such document and
failed to promptly amend or supplement such document as may be necessary to
satisfy the requirements of the Securities Act. In connection with an
Underwritten Offering, the Company will indemnify the underwriters thereof,
their officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Holders of Registrable Securities.
Notwithstanding the foregoing provisions of this Section 9(a), in the case of an
offering that is not an Underwritten Offering, the Company will not be liable to
any Holder of Registrable Securities under the indemnity agreement in this
Section 9(a) for any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense that arises out of such Holder's
failure to send or give a copy of the final Prospectus to the Person asserting
an untrue
27
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statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of the Registrable Securities to
such Person if such statement or omission was corrected in such final Prospectus
and the Company has previously furnished copies thereof in accordance with this
Agreement. Notwithstanding the foregoing, nothing in this Section 9(a) shall be
construed in any manner which would increase the indemnification liabilities of
Apollo and/or AEW to the Company contained in Article VIII of the Merger
Agreement.
(b) Indemnification by Holders of Registrable Securities. In
connection with a Registration Statement, each Holder will furnish to the
Company in writing such information, including with respect to the name, address
and the amount of Registrable Securities held by such Holder, as the Company
reasonably requests for use in such Registration Statement or the related
Prospectus and agrees to indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 9(a)) the Company, all other prospective
Holders, with respect to a Holder, or any underwriter, as the case may be, and
any of their respective affiliates, directors, officers and controlling Persons,
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of a material fact or any omission or alleged omission of a material fact
required to be stated in such Registration Statement or Prospectus or any
amendment or supplement to either of them or necessary to make the statements
therein (in the case of a Prospectus, in the light of the circumstances then
existing) not misleading, but only to the extent that any such untrue statement
or omission is made in reliance on and in conformity with information with
respect to such Holder furnished in writing to the Company by such Holder or its
counsel specifically for inclusion therein.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such indemnified party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified party
may claim indemnification or contribution pursuant to this Agreement (provided
that failure to give such notification shall not affect the obligations of the
indemnifying person pursuant to this Section 9 except to the extent the
indemnifying party shall have been actually prejudiced as a result of such
failure). In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party
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similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under these indemnification provisions for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation, unless in the reasonable judgment of any
indemnified party a conflict of interest is likely to exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional counsel or counsels. The
indemnifying party will not be subject to any liability for any settlement made
without its consent (which consent will not be unreasonably withheld).
(d) Contribution. If the indemnification from the indemnifying
party provided for in this Section 9 is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to 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, liabilities and
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with the actions
which resulted in such losses, claims, damages, liabilities and expenses, as
well as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any 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 indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 9(c), any legal and other fees
and expenses reasonably incurred by such indemnified party in connection with
any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable
29
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considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 9(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Holder of
Registrable Securities shall be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities of such
Holder were offered to the public (net of all underwriting discounts and
commissions) exceeds the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue statement or omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
If indemnification is available under this Section 9, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 9(a) or (b), as the case may be, without regard to the
relative fault of said indemnifying parties or indemnified party or any other
equitable consideration provided for in this Section 9(d).
(e) The provisions of this Section 9 shall be applicable in
respect of each registration pursuant to this Agreement, shall be in addition to
any liability which any party may have to any other party and shall survive any
termination of this Agreement.
10. Rule 144. For a period of two years following the Closing Date
or, if at the end of such two year period, a Holder is an affiliate of the
Company, until such time as no Holder is an affiliate of the Company, the
Company covenants that it will use reasonable best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act (or, if
the Company is not required to file such reports, it will, upon the request of
any Holder of Registrable Securities, use its reasonable best efforts to make
publicly available other information so long as necessary to permit sales under
Rule 144 under the Securities Act), and it will take such further action as any
Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell shares of Common Stock
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (b) any similar rule or regulation hereafter
adopted
30
31
by the SEC. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
11. Miscellaneous.
(a) Remedies. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Carell Holders and Allright Holders owning 70% of the Registrable Securities
then held by all of the Allright Holders.
(c) Notices. 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
guaranteeing next day delivery to the parties at the following addresses (or at
such other address for any party an shall be specified by like notice, provided
that notices of a change of address shall be effective only upon receipt
thereof). Notices delivered personally shall be effective upon receipt, notices
sent by mail shall be effective three days after mailing, notices sent by telex
shall be effective when answered back, notices sent by telecopier shall be
effective when receipt is acknowledged, and notices sent by courier guaranteeing
next day delivery shall be effective on the next business day after timely
delivery to the courier:
(i) if to the Holders at:
Apollo Real Estate Investment Fund II, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and
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AEW Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
and
Xxxxxxx, Procter & Xxxx
Exchange Place
Boston, MA 02109
Attention: Xxxxx Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
(ii) if to the Company at:
Central Parking Corporation
0000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Monroe J. Carell, Jr.
Facsimile: (000) 000-0000
with copies to:
Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, P.C.
1800 First American Center
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Manner
Facsimile: (000) 000-0000
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33
(iii) if to the Carell Holders at:
Central Parking Corporation
0000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Monroe J. Carell, Jr.
Facsimile: (000) 000-0000
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors of each of the parties and
transferees of Registrable Securities. No provision of this Agreement shall be
construed in any manner as to restrict the ability of any Holder to pledge all
or any portion of the Registrable Securities owned by such Holder, including the
registration rights related to such Registrable Securities granted hereunder, to
any lender; provided, that, in the event that one or more pledgees succeed to
all or a portion of the shares of Common Stock, and the registration rights
related to such shares, formerly owned by a Holder, such registration rights may
only be exercised if the then holders of a majority of such shares agree to
exercise such right. Accordingly, with respect to the exercise of any of the
registration rights granted hereunder, the original Holder of Registrable
Securities, and all pledgees of such Holder's Registrable Securities, shall be
deemed to be, collectively, one Holder. No holder of any such shares of Common
Stock, however, whether a Holder or a pledgee, shall be under any obligation to
sell, transfer or register any of the shares of Common Stock it then owns in the
event that a majority of such holders elects to exercise any registration right
granted hereunder.
(e) Xxxxxx Shareholders Agreement. The Company hereby agrees
that it will use its reasonable best efforts to comply with all provisions of
the share holders agreement and agreement not to compete, dated as of February
12, 1998, by and among the Company, Monroe J. Carell, Jr. and the Xxxxxx
Holders, which are related, in any manner, to the timing of the activation of
the Xxxxxx Registration Rights, or in any manner amend or modify such
shareholders agreement in a manner adverse to the Holders with respect to the
registration rights granted hereunder.
(f) Construction. References herein to a specified number of
Registrable Securities are subject to equitable adjustment for shares of Common
Stock issued as a dividend or distribution on account of Registrable Securities
and for any combination or subdivision of outstanding Registrable Securities
into a less or greater number of securities (by reclassification, stock split or
otherwise). In the
33
34
event shares of Common Stock included in the Registrable Securities are
exchanged for any other securities issued by the Company, such other securities
shall constitute Registrable Securities in accordance with clause (b) of the
definition of "Registrable Securities" in Section 1 and the provisions of this
Agreement shall be interpreted and construed in order to provide registration
rights with respect to such other securities constituting Registrable Securities
that are substantially identical to the registration rights granted hereunder
with respect to the exchanged shares of Common Stock.
(g) 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed wholly within that State.
(j) 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 remaining provisions contained
herein shall not be in any way impaired thereby, it being intended that all of
the rights and privileges of the Holders shall be enforceable to the fullest
extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression and a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter hereof. There are no restrictions, promises, warranties or undertakings
with respect to the subject matter hereof, other than those set forth or
referred to herein and therein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
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35
(l) Termination. This Agreement, with respect to the Allright
Holders, shall terminate, and be of no further force and effect, in the event
that the Merger is not consummated for any reason.
(m) Pooling. Central, the Carell Holders, AEW and Apollo shall
use reasonable best efforts, with respect to the transactions contemplated by
this Agreement, to cause the Merger to be accounted for as a pooling of
interests under Opinion 16 of the Accounting Principles Board and applicable SEC
rules and regulations, and each party agrees that it shall take no action that
would cause such accounting not to be obtained.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CENTRAL PARKING CORPORATION
By:
------------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer and
Chairman of the Board
MONROE J. CARELL, JR.
------------------------------------
THE CARELL CHILDREN'S TRUST
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 10/30/87
By:
------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
MONROE CARELL, JR. 1994 GRANTOR
RETAINED ANNUITY TRUST
By:
------------------------------------
Name: Monroe Carell, Jr.
Title: Trustee U/A Monroe Carell, Jr. dated 9/22/94
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37
MONROE CARELL, JR. 1995 GRANTOR
RETAINED ANNUITY TRUST
By:
------------------------------------
Name: Monroe Carell, Jr.
Title: Trustee U/A Monroe Carell, Jr. dated 2/7/95
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O XXXXX XXXXXX XXXXXXX
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O CARELL XXXXXXXXX XXXXX
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
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38
By:
------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O XXXXX XXXXXXXX XXXXX
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
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39
THE 1996 CARELL GRANDCHILDREN'S TRUST F/B/O
XXXXXXX CARELL XXXXXXX
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST F/B/O
XXXXXX XXXXXX XXXXXXX
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
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40
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr. dated 2/20/96
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXXXX XXXXXX XXXXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By:
------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXXXXX XXXXXX XXXXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By:
------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O CARELL XXXXXXXXX XXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
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By:
------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXXXX XXXXXXXX XXXXX
By: Equitable Trust Company, Successor Trustee U/A
Monroe Carell, Jr. dated 12/26/90
By:
------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXXXXXX CARELL XXXXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By:
------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXX XXXXX XXXXXXX
By: Equitable Trust Company, Successor Trustee U/A
Monroe Carell, Jr. dated 12/26/90
By:
------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
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THE MONROE CARELL, JR. FOUNDATION
By:
------------------------------------
Name: Monroe J. Carell, Jr.
Title: President
THE XXXXXXX CARELL XXXXX FOUNDATION
By:
------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Chairman, Board of Trustees
THE XXXXX CARELL XXXXXXX FOUNDATION
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Chairman, Board of Trustees
THE XXXXX CARELL XXXXXXX FOUNDATION
By:
------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Chairman, Board of Trustees
1997 CARELL XXXXXXXXX XXXXX TRUST
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxxxx Carell Xxxxx and
Xxxxx X. Xxxxx dated 12/23/97
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43
1997 XXXXX XXXXXXXX XXXXX TRUST
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxxxx Carell Xxxxx and
Xxxxx X. Xxxxx dated 12/23/97
1997 XXXXXXX CARELL XXXXXXX TRUST
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxx Carell Xxxxxxx and
Xxxxx X. Xxxxxxx dated 12/23/97
1997 XXX XXXXX XXXXXXX TRUST
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxx Carell Xxxxxxx and
Xxxxx X. Xxxxxxx dated 12/23/97
0000 XXXXXX XXXXXX XXXXXXX TRUST
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxx Carell Xxxxxxx and
Xxxxxx X. Xxxxxxx dated 12/23/97
1997 XXXXX XXXXXX XXXXXXX TRUST
By:
------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxx Carell Xxxxxxx and
Xxxxxx X. Xxxxxxx dated 12/23/97
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APOLLO REAL ESTATE INVESTMENT FUND II, L.P.
By: Apollo Real Estate Advisors II, L.P., its general partner
By: Apollo Real Estate Capital Advisors II, Inc., its general
partner
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
AEW PARTNERS, L.P.
By: AEW/L.P., its general partner
By: AEW, Inc., its general partner
By:
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
44
