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Exhibit 4.05
REGISTRATION RIGHTS, LOCK-UP AND PLEDGE AGREEMENT
This Registration Rights, Lock-Up and Pledge Agreement (the
"Agreement") is entered into as of May 5, 1994 by and between Crescent Real
Estate Equities, Inc., a Maryland corporation (the "Company"), Crescent Real
Estate Equities Limited Partnership (the "Operating Partnership") and certain
stockholders of the Company (the "Holders") who have executed a signature page
to this Agreement and who are identified on Schedule A hereto.
WHEREAS, the Holders (as defined below) are to receive shares of common
stock of the Company, $0.01 par value ("Common Stock"), or limited partnership
interests ("Units") in the Operating Partnership issued without registration
under the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the formation transactions described in the Registration
Statement on Form S-11 (File No. 33-75188), as amended, relating to the
Offering (as defined below);
WHEREAS, this Agreement is made pursuant to (i) the U.S. Purchase
Agreement dated April 28, 1994 (the "U.S. Purchase Agreement") by and among the
Company, the Operating Partnership, and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Bear, Xxxxxxx & Co. Inc., Xxxx Xxxxxx
Xxxxxxxx Inc., PaineWebber Incorporated and Prudential Securities Incorporated,
as representatives of the several underwriters named on Schedule A thereto (the
"Representatives"), and (ii) the International Purchase Agreement dated April
28, 1994 (the "International Purchase Agreement") by and among the Company, the
Operating Partnership, and Xxxxxxx Xxxxx International Limited, Bear, Xxxxxxx
International Limited, Xxxx Xxxxxx International Ltd., PaineWebber
International (U.K.) Ltd. and Prudential-Bache Securities (U.K.) Inc., as lead
managers of the several managers named on Schedule A thereto (the "Lead
Managers");
WHEREAS, in order to induce the Representatives to enter into the U.S.
Purchase Agreement and the Lead Managers to enter into the International
Purchase Agreement, the Holders have agreed to the Lock-Up set forth in Section
2 hereof and the Pledge set forth in Section 13 hereof; and
WHEREAS, in order to induce the Holders to consummate the transactions
described in the registration statement relating to the Offering the Company
has agreed to provide the Holders with the registration rights set forth in
Section 3 hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
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1. Certain Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Common Stock" shall have the meaning set forth in the preamble hereof.
"Company" shall have the meaning set forth in the preamble hereof.
"Holders" shall have the meaning set forth in the preamble hereof.
"Xxxxxxx Xxxxx" means Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Offering" shall mean the sale of Common Stock in connection with the
Company's initial public offering.
"Operating Partnership" shall have the meaning set forth in the preamble
and also shall include the Operating Partnership's successors.
"Operating Partnership Agreement" shall have the meaning set forth in
Section 2(b) hereof.
"Person" shall mean an individual, partnership, corporation, trust, or
incorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for
which a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible for sale pursuant to Rule 144(k) under
the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation: (i) all SEC, stock exchange or NASD registration and filing fees;
(ii) all fees and
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expenses incurred in connection with compliance with state securities or "blue
sky" laws (including reasonable fees and disbursements of counsel in connection
with "blue sky" qualification of any of the Registrable Shares and the
preparation of a Blue Sky Memorandum) and compliance with the rules of the NASD;
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 3(e) hereof; and (v) the
fees and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any "cold comfort" letters
required by or incident to such performance and compliance. Registration
Expenses shall specifically exclude underwriting discounts and commissions
relating to the sale or disposition of Registrable Shares by a selling Holder,
the fees and disbursements of counsel representing a selling Holder, and
transfer taxes, if any, relating to the sale or disposition of Registrable
Shares by a selling Holder, all of which shall be borne by such Holder in all
cases.
"Registration Statement" shall mean any registration statement of
the Company and any other entity required to be a registrant with respect to
such registration statement pursuant to the requirements of the Securities Act
which covers any of the Registrable Shares on an appropriate form, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" shall mean (i) the Common Stock issued to the Holders on
the date hereof, and (ii) any Common Stock issued or to be issued to the Holders
in exchange for the Units received by the Holders on the date hereof.
"Units" shall have the meaning set forth in the preamble hereof.
2. Lock-up Agreement.
(a) Each Holder hereby agrees that, except as set forth in Section
2(b) below, from the date hereof until one year following the closing of the
Offering (the "Lock-up Period"), without the prior written consent of Xxxxxxx
Xxxxx and the Company, it will not offer, pledge, sell, contract to sell, grant
any options for the sale of or otherwise transfer, distribute or dispose of,
directly or indirectly (collectively "Dispose of"), any Shares or Units (the
"Lock-up").
(b) The following dispositions of Shares and/or Units shall not be
subject to the Lock-up set forth in Section 2(a):
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(i) a Holder who is a natural person may Dispose of Shares or
Units to his or her spouse, siblings, parents or any natural or adopted
children or other descendants or to any personal trust in which any such
family member or such Holder retains the entire beneficial interest;
(ii) a Holder that is a corporation, partnership, joint venture
or other business entity may Dispose of Shares or Units to one or more
Persons who have an ownership interest in such Holder or to one or more
other entities that are wholly owned and controlled, legally and
beneficially, by such Holder or by one or more of the Persons who have
an ownership interest in such Holder;
(iii) a Holder may Dispose of Shares or Units on his or her
death to such Holder's estate, executor, administrator or personal
representative or to such Holder's beneficiaries pursuant to a devise
or bequest or by laws of descent and distribution; and
(iv) a Holder may Dispose of Shares or Units as a gift or other
transfer without consideration;
provided, however, that in the case of any transfer of Shares or Units pursuant
to clauses (i), (ii) and (iv), the transferor shall, at the request of the
Company, provide evidence (which may include, without limitation, an opinion of
counsel satisfactory in form, scope and substance to the Company in its sole
discretion as the issuer thereof) satisfactory to the Company that the transfer
is exempt from the registration requirements of the Securities Act and shall,
in the case of Units, comply with all provisions relating to the transfer of
Units contained in the First Amended and Restated Agreement of Limited
Partnership of the Operating Partnership (the "Operating Partnership
Agreement").
In the event any Holder Disposes of Shares or Units described in this
Section 2(b), such Shares or Units shall remain subject to this Agreement and,
as a condition of the validity of such disposition, the transferee shall be
required to execute and deliver a counterpart of this Agreement. Thereafter,
such transferee shall be deemed to be a Holder for purposes of this Agreement.
3. Registration.
(a) Filing of Shelf Registration Statement. Subject to the conditions
set forth in this Agreement, the Company shall cause to be filed a Registration
Statement under Rule 415 under the Securities Act relating to the sale by the
Holders of all the Registrable Shares in accordance with the terms hereof, and
shall use reasonable efforts to cause such Registration Statement to be filed
with the SEC promptly after the expiration of the Lock-up Period and to be
declared
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effective as soon thereafter as possible. The Company agrees to use reasonable
efforts to keep the Registration Statement continuously effective until the
date on which the Holders no longer hold any Registrable Shares or Units
(hereinafter referred to as the "Shelf Registration Expiration Date").
(b) Demand Registration. Subject to the conditions set
forth in this Agreement, at any time after the Shelf Registration Expiration
Date and while any Registrable Shares are outstanding, the Company shall, at
the written request of any Holder who is unable to sell its Registrable Shares
pursuant to Rule 144(k) under the Securities Act, cause to be filed as soon as
practicable after the date of such request by such Holder a Registration
Statement under Rule 415 under the Securities Act relating to the sale by the
Holder of all of the Registrable Shares held by such Holder in accordance with
the terms hereof, and shall use reasonable efforts to cause such Registration
Statement to be declared effective by the SEC as soon as practicable
thereafter. The Company may, in its sole discretion, elect to file the
Registration Statement before receipt of notice from any Holder. The Company
agrees to use reasonable efforts to keep the Registration Statement
continuously effective thereafter until the date on which such Holder no longer
holds any Registrable Shares.
(c) Piggyback Registration. If at any time after the Shelf
Registration Expiration Date and while any Registrable Shares or Units are
outstanding (without any obligation to do so) the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
Common Stock solely for cash (other than a registration statement (i) on Form
S-8 or any successor form to such Form or in connection with any employee or
director welfare, benefit or compensation plan, (ii) on Form S-4 or any
successor form to such Form or in connection with an exchange offer, (iii) in
connection with a rights offering exclusively to existing holders of Common
Stock, (iv) in connection with an offering solely to employees of the Company or
its Subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of the
Securities Act or any other "business combination" transaction), whether or not
for its own account, the Company shall give prompt written notice of such
proposed filing to the Holders. The notice referred to in the preceding sentence
shall offer Holders the opportunity to register such amount of Registrable
Shares as each Holder may request (a "Piggyback Registration"). Subject to the
provisions of Section 4 below, the Company shall include in such Piggyback
Registration, in the registration and qualification for sale under the blue sky
or securities laws of the various states and in any underwriting in connection
therewith all Registrable Shares for which the Company has received written
requests for inclusion therein within fifteen (15) calendar days after the
notice referred to above has been given by the Company to the Holders. Holders
of Registrable Shares shall be permitted to withdraw all or part of the
Registrable Shares from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company and the managing
underwriter advises the
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Company that the total number of shares of Common Stock requested to be
included in such registration exceeds the number of shares of Common Stock
which can be sold in such offering, the Company will include in such
registration in the following priority: (i) first, all Common Stock the Company
proposes to sell, and (ii) second, up to the full number of applicable
Registrable Shares requested to be included in such registration by any Holders
which, in the case of clause (ii) above, in the opinion of such managing
underwriter, can be sold without adversely affecting the price range or
probability of success of such offering.
(d) The Company shall notify each Holder of the effectiveness of the
Registration Statement and shall furnish to each Holder such number of copies
of the Registration Statement (including any amendments, supplements and
exhibits), the Prospectus contained therein (including each preliminary
prospectus and all related amendments and supplements) and any documents
incorporated by reference in the Registration Statement or such other documents
as the Holder may reasonably request in order to facilitate its sale of the
Registrable Shares in the manner described in the Registration Statement.
(e) The Company shall prepare and file with the SEC from time to time
such amendments and supplements to the Registration Statement and Prospectus
used in connection therewith as may be necessary to keep the Registration
Statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Shares until the earlier of
(i) such time as all of the Registrable Shares have been disposed of in
accordance with the intended methods of disposition by the Holders as set forth
in the Registration Statement or (ii) the date on which the Registration
Statement ceases to be effective in accordance with the terms of this Section 3.
Upon five business days' notice, the Company shall file any supplement or
post-effective amendment to the Registration Statement with respect to the
plan of distribution or such Holder's ownership interests in Registrable Shares
that is reasonably necessary to permit the sale of the Holder's Registrable
Shares pursuant to the Registration Statements. The Company shall file any
necessary listing applications or amendments to the existing applications to
cause the Shares registered under any Registration Statement to be then listed
or quoted on the primary exchange or quotation system on which the Common Stock
is then listed or quoted.
(f) The Company shall promptly notify each Holder of, and confirm in
writing, any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus related thereto or for additional
information. In addition, the Company shall promptly notify each Holder of, and
confirm in writing, the filing of the Registration Statement or any Prospectus,
amendment or supplement related thereto or any post-effective amendment to the
Registration Statement and the effectiveness of any post-effective amendment.
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(g) At any time when a Prospectus relating to the Registration
Statement is required to be delivered under the Securities Act, the Company
shall immediately notify each Holder of the happening of any event as a result
of which the Prospectus included in the Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. In such event, the Company shall promptly prepare and furnish to
each Holder a reasonable number of copies of a supplement to or an amendment of
such Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registrable Shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is a part
to reflect such amendment or supplement.
4. State Securities Laws. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Registration
Statement hereunder, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities or "Blue Sky" laws of such
states as any Holder may reasonably request, and the Company shall use its best
efforts to cause such filings to become effective; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such state in which it is not then qualified or
to file any general consent to service or process in any such state. Once
effective, the Company shall use its best efforts to keep such filings
effective until the earlier of (a) such time as all of the Registrable Shares
have been disposed of in accordance with the intended methods of disposition by
the Holder as set forth in the Registration Statement, (b) in the case of a
particular state, a Holder has notified the Company that it no longer requires
an effective filing in such state in accordance with its original request for
filing or (c) the date on which the Registration Statement ceases to be
effective. The Company shall promptly notify each Holder of, and confirm in
writing, the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Shares for sale under the
securities or "Blue Sky" laws of any jurisdiction or the initiation or threat
of any proceeding for such purpose.
5. Expenses. The Company shall bear all Registration Expenses incurred
in connection with the registration of the Registrable Shares pursuant to this
Agreement, except that each Holder shall be responsible for any brokerage or
underwriting commissions and taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer of
Registrable Shares sold by it and for any legal, accounting and other expenses
incurred by it.
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6. Cooperation. Each of the Holders hereby agrees (a) to cooperate with
the Company and to furnish to the Company in a timely manner all such
information concerning its plan of distribution and ownership interests with
respect to its Registrable Shares and any other information as the Company may
reasonably request in connection with the preparation of the Registration
Statement and any filings with any state securities commissions and (b) to
deliver or cause delivery of the Prospectus contained in the Registration
Statement to any purchaser of the shares covered by the Registration Statement
from the Holder.
7. Suspension of Registration Requirement.
(a) The Company shall promptly notify each Holder of, and
confirm in writing, the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company shall use its best efforts to obtain
the withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use its best efforts
to cause the Registration Statement and any filings with any state securities
commission to become effective or to amend or supplement the Registration
Statement shall be suspended in the event and during such period as unforeseen
circumstances exist (including without limitation (i) an underwritten primary
offering by the Company if the Company is advised by the underwriters that sale
of Registrable Shares under the Registration Statement would have a material
adverse effect on the primary offering or (ii) pending negotiations relating to,
or consummation of, a transaction or the occurrence of an event that would
require additional disclosure of material information by the Company in the
Registration Statement or such filing, as to which the Company has a bona fide
business purpose for preserving confidentiality or which renders the Company
unable to comply with SEC requirements) (such unforeseen circumstances being
hereinafter referred to as a "Suspension Event") that would make it impractical
or inadvisable to cause the Registration Statement or such filings to become
effective or to amend or supplement the Registration Statement, but such
suspension shall continue only for so long as such event or its effect is
continuing but in no event will that suspension exceed 90 days. The Company
shall notify the Holder of the existence and, in the case of circumstances
referred to in clause (i) of this Section 7(b), nature of any Suspension Event.
(c) Each holder of Registrable Shares whose Registrable Shares
are covered by a Registration Statement filed pursuant to Section 3 hereof
agrees, if requested by the Company in the case of a Company-initiated
non-underwritten offering or if requested by the managing underwriter or
underwriters in a Company-initiated underwritten offering, not to effect any
public sale or
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distribution of any of the securities of the Company of any class included in
such Registration Statement, including a sale pursuant to Rule 144 or Rule 144A
under the Securities Act (except as part of such Company-initiated
registration), during the 15-day period prior to, and during the 90-day period
beginning on, the date of effectiveness of each Company-initiated offering
made pursuant to such Registration Statement, to the extent timely notified in
writing by the Company or the managing underwriters; provided, however, that
such 90-day period shall be extended by the number of days from and including
the date of the giving of any notice pursuant to Section 3(f) or (g) hereof to
and including the date when each seller of Registrable Shares covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 3(g) hereof.
8. Black-Out Period. Following the effectiveness of the
Registration Statement and the filings with any state securities commissions,
the Holders agree that they will not effect any sales of the Registrable Shares
pursuant to the Registration Statement or any such filings at any time after
they have received notice from the Company to suspend sales as a result of the
occurrence or existence of any Suspension Event or so that the Company may
correct or update the Registration Statement or such filing. The Holder may
recommence effecting sales of the Shares pursuant to the Registration Statement
or such filings following further notice to such effect from the Company, which
notice shall be given by the Company not later than five days after the
conclusion of any such Suspension Event. If so directed by the Company, Holders
will deliver to the Company all copies of the Prospectus covering the
Registrable Shares current at the time of receipt of such notice.
9. Additional Shares. The Company, at its option, may register,
under any registration statement and any filings with any state securities
commissions filed pursuant to this Agreement, any number of unissued Common
Stock of the Company or any Common Stock of the Company owned by any other
shareholder or shareholders of the Company.
10. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder within the meaning of Section 15 of the Securities Act of 1933 as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto) pursuant to which the Registrable Shares were
registered under the Securities Act, including all documents
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incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or
supplement thereto), including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, in each case whether or not
a party, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 10 does
not apply to any Holder with respect to any loss, liability, claim, damage or
expense to the extent arising out of (x) any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such Holder expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or (y) such Holder's failure to
deliver an amended or supplemental Prospectus if such loss, liability, claim,
damage or expense would not have arisen had such delivery occurred.
(b) Indemnification by Holders. Each Holder severally agrees to
indemnify and hold harmless the Company and the other selling Holders, and each
of their respective directors and officers (including each director and officer
of the Company who signed the Registration Statement), and each person, if any,
who controls the Company or the other selling Holders within the meaning of
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Section 15 of the Securities Act, to the same extent as the indemnity contained
in Section (a) hereof (except that any settlement described in Section 3(a)(ii)
shall be effected with the written consent of such Holder), but only insofar as
such loss, liability, claim, damage or expense arises out of or is based upon
(x) any untrue statement or omission, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use in such Registration Statement (or any amendment thereto) or
such Prospectus (or any amendment or supplement thereto) or (y) such Holder's
failure to deliver an amended or supplemental Prospectus if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
(c) Conduct of Indemnification Proceedings. The
indemnified party shall give reasonably prompt notice to the indemnifying
party of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify the indemnifying
party (i) shall not relieve it from any liability which it may have under the
indemnity agreement provided in paragraphs (a) or (b) of this Section 10,
unless and to the extent it did not otherwise learn of such action and the lack
of notice by the indemnified party results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in
any event, relieve the indemnifying party from any obligations to the
indemnified party other than the indemnification obligation provided under
paragraphs (a) or (b) of this Section 10. If the indemnifying party so elects
within a reasonable time after receipt of such notice, the indemnifying party
may assume the defense of such action or proceeding at such indemnifying
party's own expense with counsel chosen by the indemnifying party and approved
by the indemnified party, which approval shall not be unreasonably withheld;
provided, however, that, if the indemnified party reasonably determines that a
conflict of interest exists where it is advisable for the indemnified party to
be represented by separate counsel or that, upon advice of counsel, there may
be legal defenses available to it which are different from or in addition to
those available to the indemnifying party, then the indemnifying party shall
not be entitled to assume such defense and the indemnified party shall be
entitled to separate counsel at the indemnifying party's expense. If the
indemnifying party is not entitled to assume the defense of such action or
proceeding as a result of the proviso to the preceding sentence, the
indemnifying party's counsel shall be entitled to conduct the indemnifying
party's defense and counsel for the indemnified party shall be entitled to
conduct the defense of the indemnified party, it being understood that both
such counsel will cooperate with each other to conduct the defense of such
action or proceeding as efficiently as possible. If the indemnifying party is
not so entitled to assume the defense of such action or does not assume such
defense, after having received the notice referred to in the first sentence of
this paragraph, the indemnifying party will pay the reasonable fees and
expenses of counsel for the indemnified party. In such event, however, the
indemnifying party will not be liable for any settlement
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effected without the written consent of the indemnifying party. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
party incurred thereafter in connection with such action or proceeding.
11. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 10 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Company and each Holder shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and each such
Holder, in such proportion as is appropriate to reflect the relative fault of
and benefits to the Company on the one hand and such Holder on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits to the indemnifying party and
indemnified party shall be determined by reference to, among other things, the
total proceeds received by the indemnifying party and indemnified party in
connection with the offering to which such losses, claims, damages, liabilities
or expenses relate. The relative fault of the indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, the
indemnifying party or the indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 11 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 11, no Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Shares of such Holder were offered to the public exceeds
the amount of any damages which such Holder would otherwise have been required
to pay by reason of such untrue statement or omission.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 11, each person, if
any, who controls a Holder within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each
director of the Company, each officer of the Company who signed the
Registration Statement and each
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person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as the Company.
12. No Other Obligation to Register. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
13. Pledge of Shares and Units by Holders.
(a) Pledge. As collateral security for performance of their
respective obligations under the contribution agreements ("Contribution
Agreements") pursuant to which the Operating Partnership is acquiring interests
in certain properties, including five Class A office buildings, one retail
center and three residential development properties, each Holder hereby
pledges, assigns and transfers to the Company and the Operating Partnership a
first priority lien on, and continuing first priority security interest in, all
of the following property now owned or at any time hereafter acquired by such
Holder or in which such Holder now has or at any time in the future may acquire
any right, title or interest (collectively, the "Collateral"):
(i) its Pledged Interest (as defined below) and
all of its rights and powers under the Operating Partnership
Agreement and arising out of the ownership of the Common Stock,
(including, without limitation, all of its voting and other
rights in the Operating Partnership and the Company and all of
its right, title and interest in and to property, assets,
partnership interests and distributions under the Operating
Partnership and the Company);
(ii) all Accounts (as defined below) arising out of
its Pledged Interest;
(iii) all General Intangibles (as defined below)
arising out of its Pledged Interest;
(iv) all present future rights of such Holder to
receive any payment of money or other distribution or payment
arising out of or in connection with its Pledged Interest;
(v) any other property of the Operating
Partnership to which such Holder now or in the future may be
entitled in its capacity as a partner of the Operating
Partnership by way of distribution, return of capital or
otherwise;
(vi) any other claim which such Holder now has or
may in the future acquire in its capacity as a partner of the
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Operating Partnership against the Operating Partnership and its
property and the other partners thereof; and
(vii) to the extent not otherwise included above, all Proceeds (as
defined below) of any and all of the foregoing, including, without
limitation, whatever is received upon any collection, exchange, sale or
other disposition of any of the foregoing, and any property into which
any of the foregoing is converted, whether cash or noncash proceeds, and
any and all other amounts paid or payable under or in connection with
any of the foregoing.
(b) Definitions. For purposes of this Section 13:
(i) "Pledged Interest" means, with respect to each Holder, all
general and limited partnership interests in the Operating Partnership
held by such Holder, including Units, together with all certificates,
options or rights of any nature whatsoever that may be issued or granted
by the Operating Partnership to such Holder in respect of its Pledged
Interest and the shares of Common Stock held by such Holder identified
on Schedule 13(c) hereto; and
(ii) The terms "Accounts," "General Intangibles," and "Proceeds"
shall have the meanings assigned to such terms in the Uniform Commercial
Code from time to time in effect in the State of Maryland.
(c) Representations. Each Holder represents to the Company and the
Operating Partnership as follows:
(i) Such Holder is the record and beneficial owner of, and has
good and marketable title to, the Pledged Interests listed opposite its
name on Schedule 13(c), free of any and all liens or options in favor
of, or claims of, any other Person, except the lien and security
interest created by this Agreement. No security agreement, financing
statement or other public notice with respect to all or any part of the
Collateral pledged by such Holder is on file or of record in any public
office, except such as have been filed in favor of the Company and the
Operating Partnership pursuant to this Agreement.
(ii) The security interest in the Pledged Interest and other
Collateral granted by such Holder pursuant to this Agreement constitutes
a perfected first priority security interest in favor of the Company and
the Operating Partnership and is
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enforceable as such against all creditors of and purchasers
from such Holder. All action necessary or desirable to perfect
such security interest in each item of the Collateral pledged
by such Holder, including the filing of financing statements in
all appropriate public offices, shall have been duly taken on
or before the closing of the Offering.
(iii) The address of the chief executive office or residence
and principal place of business of such Holder is listed under
its name on the signature pages hereto.
(d) Covenants. Each Holder covenants and agrees with the
Company and the Operating Partnership that, from and after the date of this
Agreement until all obligations under this Agreement are satisfied:
(i) Further Documentation; Pledge of Instruments. At any time
and from time to time, such Holder at its expense will promptly
and duly execute and deliver such further instruments and
documents and take such further action as may be required by
applicable law, or as may be necessary or desirable, or that the
Company or the Operating Partnership may reasonably request, for
the purpose of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted. Without
limiting the generality of the foregoing, such Holder will
execute and file such financing or continuation statements, or
amendments thereto, and such other instruments, endorsements or
notices, as may be required by applicable law, or as may be
necessary or desirable, or that the Company or the Operating
Partnership may deem necessary or desirable in order to perfect
and preserve the liens created or intended to be created hereby.
Such Holder hereby authorizes the Company and the Operating
Partnership to file any such financing or continuation statement
without the signature of such Holder to the extent permitted by
applicable law. Copies of any such financing or continuation
statements shall be promptly delivered to such Holder. In
addition, simultaneously with the execution of this Agreement,
each Holder who owns Common Stock identified on Schedule 13(c)
shall deliver to the Operating Partnership certificates for such
shares of Common Stock, registered in the name of such Holder,
duly endorsed in blank or accompanied by stock powers duly
executed by the Holder in blank. If any amount payable under or
in connection with any of the Collateral shall be or become
evidenced by any promissory note, other Instrument or Chattel
Paper (as defined under the Uniform Commercial Code from time to
time in effect in the
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State of Maryland), such note, Instrument or Chattel Paper shall be
immediately delivered to the Company and the Operating Partnership,
duly endorsed, if appropriate, in a manner satisfactory to the
Company, to be held as Collateral pursuant to this Agreement.
(ii) Legend. The Operating Partnership Agreement shall be
legended with a notification of the pledges and security interests
created pursuant to this Agreement.
(e) Release of Collateral. The Collateral of each Holder shall
be released from the lien of the pledge and security interest created by this
Section 13 and returned to such Holder upon the expiration of the Lock-up
Period; provided, however, that if any claim has been asserted against a Holder
under the Contribution Agreements and remains unresolved upon the expiration of
the Lock-up Period, the Company and the Operating Partnership may retain
Collateral after such period and until such claim is resolved having a value
equal to 150% of the reasonably estimated amount of such claim.
14. Holder Representations, Warranties and Agreements.
Each Holder, jointly and not severally, and solely on behalf of itself,
represents and warrants to, and agrees with, the Company, that:
(a) Such Holder, if not a natural person, is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization. Such Holder has all requisite power and authority to execute,
deliver and perform this Agreement. All necessary proceedings of such Holder,
if not a natural person, have been duly taken to authorize the execution,
delivery, and performance of this Agreement by such Holder. This Agreement has
been duly authorized by such Holder, if not a natural person, and executed, and
delivered by such Holder, and is the legal, valid, and binding obligation of
such Holder, and is enforceable as to such Holder in accordance with its terms.
No consent, authorization, approval, order, license, certificate, or permit of
or from, or declaration or filing with, any federal, state, local, or other
governmental authority or any court or other tribunal is required by such
Holder for the execution, delivery, or performance of this Agreement (except
filings under the Securities Act which will be made and such consents
consisting only of consents under Blue Sky or state securities laws which will
be obtained) by such Holder. No consent of any party to any contract,
agreement, instrument, lease, license, arrangement, or understanding to which
such Holder is a party, or to which any of such Holder's properties or assets
are subject, is required for the execution, delivery, and performance of this
Agreement which has not been obtained, and the execution, delivery, and
performance of this Agreement will not violate, result in a breach of, conflict
with, or (with or without giving of notice or the passage of time or both)
entitle any party
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to terminate or call a default under any such contract, agreement, instrument,
lease, license, arrangement, or understanding, or, if such Holder is not a
natural person, violate or result in a breach of, or conflict with, any law,
rule, regulation, order, judgment, or decree binding on such Holder or to
which any of such Holder's operations, business, properties, or assets are
subject, which, in any of such events, would prohibit, impair, or restrict the
ability of such Holder to execute and deliver this Agreement, perform in
accordance with the terms hereof, or consummate the transactions contemplated
hereby, or would adversely affect the rights or benefits, or both, hereunder
of any other party hereto.
(b) Neither such Holder nor any of such Holder's affiliates (as
defined in the regulations under the Securities Act), will take, directly or
indirectly, during the term of this Agreement, any action designed to stabilize
(except as may be permitted by applicable law) or manipulate the price of any
security of the Company.
(c) Such Holder shall promptly furnish to the Company any and
all information as may be required by, or as may be necessary or advisable to
comply with the provisions of, the Securities Act, the Exchange Act, and the
rules and regulations of the SEC thereunder in connection with the preparation
and filing of any Registration Statement pursuant hereto, or any amendment or
supplement thereto, or any Preliminary Prospectus or Prospectus included
therein. All information to be furnished to the Company by or on behalf of such
Holder expressly for use in connection with the preparation of any Preliminary
Prospectus, the Prospectus, the Registration Statement, or any amendment or
supplement thereto, will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading.
15. Underwritten Registration.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) executes and delivers the
underwriting agreement or similar documents relating thereto pursuant to which
such Holder shall agree to sell, upon the terms and subject to the conditions
therein set forth, such Holder's Registrable Securities on the basis provided
therein, and (b) completes and executes all questionnaires, powers of attorney,
indemnities, custodial or escrow agreements and other documents as may be
necessary, advisable or required pursuant to the terms thereof or as may be
from time to time reasonably requested by the underwriter or underwriters named
therein, the Company, or their respective legal counsel, in connection
therewith.
In the event of any conflict between the indemnification and
contribution terms as herein set forth and as set forth in any underwriting
agreement entered pursuant hereto, the underwriting agreement shall control.
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16. Survival of Representations and Agreements
All representations, warranties, covenants, and agreements contained in
this Agreement shall be deemed to be representations, warranties, covenants, and
agreements at the effective date of each Registration Statement contemplated by
this Agreement, and such representations, warranties, covenants, and agreements,
including the indemnity and contribution agreements contained in Sections 10 and
11 hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Holder, or any Person
which is entitled to be indemnified under Section 10 hereof, and shall survive
termination of this Agreement.
17. Amendments and Waivers. The provisions of this Agreement may
not be amended, modified, or supplemented or waived without the prior written
consent of the Company and the Holders of Registrable Shares, and, in the case
of Sections 2, 13 and 24 hereof, without the prior written consent of Xxxxxxx
Xxxxx.
18. Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 3(e), a
Holder must confirm such notice in writing by overnight express delivery with
confirmation of receipt:
If to the Company: Crescent Real Estate Equities, Inc.
c/o Crescent Real Estate Equities Limited
Partnership
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxx
Telecopy: (000) 000-0000
If to the Holders: As listed on the applicable Holder Signature
Page.
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
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19. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto. This Agreement may not be assigned by any
Holder and any attempted assignment hereof by any Holder will be void and of no
effect and shall terminate all obligations of the Company hereunder; provided,
however, that any Holder may assign its rights hereunder to any person to whom
such Holder may Dispose of Shares and/or Units pursuant to Section 2(b) hereof.
20. 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.
21. Governing Law. The Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland applicable to contracts
made and to be performed wholly within said State.
22. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
23. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings (except the Contribution Agreements)
between the parties with respect to such subject matter.
24. Third Party Beneficiary. Xxxxxxx Xxxxx shall be a third party
beneficiary or intended beneficiary to the agreement made by the Holders
pursuant to Section 2 hereof and shall have the right to enforce such agreement
directly to the extent it deems such enforcement necessary or desirable to
protect its rights hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CRESCENT REAL ESTATE EQUITIES, INC.
By /s/ XXXX X. XXXX
---------------------------------
Name:
Title:
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: CRESCENT REAL ESTATE
EQUITIES, LTD., its general
partner
By: /s/ XXXX X. XXXX
---------------------------
Name:
Title:
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REGISTRATION RIGHTS, LOCK-UP AND PLEDGE AGREEMENT
HOLDER SIGNATURE PAGE
Holder: Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxx
Address for Notice:
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: XX-Xxxxxx Partners, Ltd.
By: Rainwater, Inc., its general partner
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Print Name: Xxxxxx X. Xxxxxxx,
Vice President
Address for Notice:
------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: MacArthur Center Partnership, Ltd.
By: Rainwater, Inc., its general partner
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Print Name: Xxxxxx X. Xxxxxxx,
Vice President
Address for Notice:
------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: 000 Xxxx Xxxxxx Corporation
/s/ Xxxx X. Xxxx
--------------------------------------------
Print Name: Xxxx X. Xxxx,
Vice President
Address for Notice:
------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: Mira Vista Investors, L.P.
By: Rainwater, Inc., a general partner
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Print Name: Xxxxxx X. Xxxxxxx,
Vice President
Address for Notice:
------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: RRCC Limited Partnership
By: Rainwater, Inc., a general partner
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Print Name: Xxxxxx X. Xxxxxxx,
Vice President
Address for Notice:
------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: 777 Main Holding, Ltd.
By: Tower Holdings, Inc.,
its general partner
/s/ Xxxx X. Xxxx
--------------------------------------------
Print Name: Xxxx X. Xxxx,
Vice President
Address for Notice:
------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: RainAm Investment Properties, Ltd.
By Rainwater, Inc.,
its general partner
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Print Name: Xxxxxx X. Xxxxxxx,
Vice President
Address for Notice:
------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: Rainwater, Inc.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Print Name: Xxxxxx X. Xxxxxxx,
Vice President
Address for Notice:
------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Holder: LAS COLINAS PLAZA, LTD.
By: Rosewood Property Company
/s/ Xxxx X. Xxxxxx III
--------------------------------------------
Print Name: Xxxx X. Xxxxxx III,
President/Commercial Group
Address for Notice:
-------------------
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Holder: Rosewood Property Company
/s/ Xxxx X. Xxxxxx III
--------------------------------------------
Print Name: Xxxx X. Xxxxxx III,
President/Commercial Group
Address for Notice:
-------------------
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
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SCHEDULE A
000 Xxxx Xxxxxxx, Ltd.
000 Xxxx Xxxxxx Corporation
MacArthur Center Partnership, Ltd.
RRCC Limited Partnership
Mira Vista Investors, L.P.
RainAm Investment Properties, Ltd.
XX-Xxxxxx Partners, Ltd.
Rainwater, Inc.
Xxxxxxx X. Xxxxxxxxx
Las Colinas Plaza, Ltd.
Rosewood Property Company
23
SCHEDULE 13(c)
HOLDER PLEDGED INTEREST
------ ----------------
777 Main Holding, Ltd. 505,080 Units, representing a 2.4%
limited partnership interest in the
Operating Partnership
000 Xxxx Xxxxxx Corporation 16,377 Units, representing a 0.1%
limited partnership interest in the
Operating Partnership
MacArthur Center Partnership, Ltd. 433,969 Units, representing a 2.1%
limited partnership interest in the
Operating Partnership
RRCC Limited Partnership 2,475,342 Units, representing a 12.0%
limited partnership interest in the
Operating Partnership
Mira Vista Investors, L.P. 617,392 Shares of Common Stock
RainAm Investment Properties, Ltd. 644,223 Units, representing a 3.1%
limited partnership interest in the
Operating Partnership
XX-Xxxxxx Partners, Ltd. 635,668 Units, representing a 3.1%
limited partnership interest in the
Operating Partnership
Rainwater, Inc. 1,600,000 Units, representing a 7.7%
limited partnership interest in the
Operating Partnership
Las Colinas Plaza, Ltd. 107,527 Units, representing a 0.5%
limited partnership interest in the
Operating Partnership
Rosewood Property Company 39,101 Units, representing a 0.2%
limited partnership interest in the
Operating Partnership
