Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made this
23rd day of December, 1996 between Home Properties of New
York, Inc., a Maryland corporation (the "Company"), and the
State Treasurer of the State of Michigan, Custodian of
Michigan Public School Employees' Retirement System, State
Employees' Retirement System, Michigan State Police
Retirement System and Michigan Judges' Retirement System
(the "Holder").
WHEREAS, the Company, the Holder and Home
Properties of New York, L.P., a New York limited partnership
(the "Operating Partnership"), have entered into a
Partnership Interest Purchase Agreement (the "Acquisition
Agreement"), that provides for the purchase by the Holder
and sale by the Operating Partnership to the Holder of the
Class A Partnership Interest (the "Class A Interest");
WHEREAS, the Holder has the right to convert the
Class A Interest into shares of Common Stock of the Company;
and
WHEREAS, as a condition to the closing of the
transactions contemplated by the Acquisition Agreement, the
Company has agreed to grant the Holder certain registration
rights with respect to the shares of Common Stock of the
Company for which the Class A Interest may be exchanged;
NOW, THEREFORE, the parties hereby agree as
follows:
Section 1. Definitions. As used in this
Agreement, the following terms have the following meanings.
Capitalized terms not otherwise defined herein have the
meaning ascribed to them in the Acquisition Agreement.
1.1 "Acquisition Agreement" shall have the
meaning set forth above.
1.2 "Affiliate" shall have the meaning specified
in Rule 12b-2 promulgated under the Exchange Act.
1.3 "Blackout Period" shall have the meaning set
forth in Section 4.1(b) hereof.
1.4 "Common Stock" shall mean the Company's
Common Stock, par value $.01 per share.
1.5 "Company" shall mean Home Properties of New
York, Inc., a Maryland corporation and general partner of
the Operating Partnership.
1.6 "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
1.7 "Holder" shall have the meaning set forth
above and shall include any assignee thereof in accordance
with Section 11 of this Agreement.
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1.8 "Operating Partnership" shall have the
meaning set forth above.
1.9 "Register," "registered" and "registration"
refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act
and the declaration or ordering by the SEC of effectiveness
of such registration statement.
1.10 "Registrable Stock" shall mean any and all
shares of Common Stock issued or issuable to the Holder
pursuant to Amendment No. 9 to the Amended and Restated
Agreement of Limited Partnership of the Operating
Partnership or other securities of the Company issued as (or
issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for or in
replacement of any of the foregoing securities, which have
not otherwise been registered.
1.11 "SEC" shall mean the Securities and Exchange
Commission.
1.12 "Securities Act" shall mean the Securities
Act of 1933, as amended.
1.13 "Selling Holder" shall mean a Holder
proposing to sell or selling Registrable Stock pursuant to a
registration statement as provided in this Agreement.
Section 2. Obligations of the Company. Whenever
the Company is required by the provisions of this Agreement
to effect promptly a registration or qualification of
shares of Registrable Stock, the Company will keep the
Selling Holder advised in writing as to the initiation of
each registration or qualification and as to the completion
thereof and will use reasonable business efforts to perform
the following covenants:
2.1 The Company will prepare and file with the
SEC a registration statement (including a prospectus
therein), on the appropriate form in light of the intended
method of distribution, to register the shares of
Registrable Stock under the Securities Act and use
reasonable business efforts to cause such registration
statement to become and remain effective as provided in this
Agreement, provided that before filing such registration
statement or any amendments or supplements thereto, the
Company will furnish to the Holder and counsel selected by
the Holder copies of all documents required to be filed,
which documents will be subject to review by such counsel
before such filing is made, and the Company will comply with
any reasonable request made by such counsel to make changes
to any information relating to the Holder contained in such
filing or in such documents.
2.2 The Company will prepare and file with the
SEC such amendments and supplements to a registration
statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement
effective and current and to comply with the provisions of
the Securities Act with respect to the disposition of all
shares covered by such registration statement, including
such amendments and supplements as may be necessary to
reflect the intended method of disposition from time to time
of the Selling Holders of such shares; provided, however,
the Company shall have no obligation to maintain the
effectiveness of
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any registration statement as to which a
Selling Holder fails to comply with the provisions of
Section 8 hereof.
2.3 The Company shall furnish to each Selling
Holder and to any underwriter of the shares being registered
such number
of copies of the registration statement and the prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Securities Act and such other documents
as such Selling Holder or underwriter may reasonably
request.
2.4 The Company will use reasonable business
efforts to register or qualify the shares covered by such
registration statement under such other securities or blue
sky or other applicable laws of such jurisdictions within
the United States as the Selling Holder or any underwriter
shall reasonably request in order to enable such Selling
Holder or underwriter to consummate the public sale or other
disposition of the shares owned by such Selling Holder in
such jurisdictions and keep such registration or
qualification in effect for so long as such registration
statement remains in effect; provided, however, that the
Company shall not be required so to register or qualify if
the result thereof is to require the Company to qualify to
do business or to file a general consent to service of
process in such jurisdiction.
2.5 The Company will enter into a written
underwriting agreement in customary form and substance
reasonably satisfactory to the Company, the Holder and the
managing underwriter or underwriters of the public offering
of such securities, if the offering is to be underwritten,
in whole or in part.
2.6 The Company will notify the Holder, at any
time when a prospectus included in a registration statement
is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
2.7 The Company will furnish, at the request of
the Holder, if the Holder is requesting registration of
shares of Registrable Stock pursuant to this Agreement, on
the date that such shares are delivered to any underwriter
for sale in connection with a registration pursuant to this
Agreement, if such shares are being sold through
underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration
statement with respect to such shares becomes effective, (i)
an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an
underwritten public offering and including a statement by
such counsel that in the course of the preparation of the
registration statement registering such shares of
Registrable Stock nothing has come to the attention of such
counsel that would lead such counsel to believe that the
registration statement, as then in effect, or prospectus
related thereto 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, in the
light of the circumstances under which they were made, not
misleading, addressed to the underwriters, if any, and to
the Holder and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in
form and
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substance as is customarily given by independent
certified public accounts to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and
to the Holder.
2.8 The Company will use its reasonable business
efforts to list all shares of Registrable Stock covered by a
registration statement on the New York Stock Exchange or
such other securities exchange as may be mutually agreed
upon by the parties and such securities exchange.
2.9 The Company will provide a transfer agent and
registrar for all Registrable Stock covered by such
registration statement not later than the effective date of
such registration statement.
2.10 The Company will comply or continue to comply
in all material respects with the Securities Act and the
Exchange Act and with all applicable rules and regulations
of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earning statement
covering the period of at least 12 months, but not more than
18 months, beginning with the first full calendar month
after the effective date of such registration statement,
which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act, and not file any
amendment or supplement to the registration statement or
prospectus to which the Holder shall have reasonably
objected on the grounds that such amendment or supplement to
such registration statement or prospectus to which the
Holder shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act, having
been furnished with a copy thereof at the earliest
practicable date.
2.11 In connection with preparation and filing of
a registration statement under the Securities Act, the
Company shall furnish to the Holder, its underwriters, if
any, and their respective counsel, the opportunity to
participate in the preparation of such registration
statement, each prospectus included therein as filed with
the SEC, and each amendment thereof or supplement thereto,
and shall give each of them access to its books and records
and such opportunities to discuss the business of the
Company with its officers, its counsel and the independent
public accountants who have certified its financial
statements as shall be necessary, in the opinion of the
Holder's and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the
Securities Act.
The parties anticipate that any registration
pursuant to this Agreement shall be a registration on Form S-
3 (or a substantially equivalent registration form under the
Securities Act subsequently adopted by the Commission that
permits inclusion or incorporation by reference to other
documents filed by the Company with the Commission), but
agree that should a registration on Form S-3 be
unavailable to the Company such unavailability will not
alter the rights of the Holder or the obligations of the
Company hereunder, including, without limitation, to have
the Registrable Stock registered on an available
registration form
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Section 3. Registration at Request of Holder.
3.1 The Holder shall have the right to request
the registration and qualification with respect to the
Registrable Stock, at any time after the date hereof, until
termination of such rights as provided in Section 13 hereof
and subject to the limitations set forth in Section 4 below;
provided, however, that the Company shall not be required to
effect a registration pursuant to this Section 3 unless the
Holder requesting such registration proposes to include
therein at least 25% of the Registrable Stock. . The
Holder shall have the right to specify the type of
registration requested, including, without
limitation, a registration on a continuous or delayed basis
(a "Shelf Registration"). The Company will use its
reasonable business efforts to effect all such registrations
and qualifications within 90 days of such request
(including, without limitation, the execution of an
undertaking to file posteffective amendments, appropriate
qualification under the blue sky or other state securities
laws and appropriate compliance with regulations issued
under the Securities Act and any other governmental
requirements and regulations) as may be so requested and as
would permit or facilitate the sale and distribution of the
Holder's Registrable Stock as are specified in such request;
provided, however, that the Company will not be required to
have an effective registration statement on file with the
SEC or any state securities commission prior to the to the
second anniversary of the issuance date of the Class A
Interest (the "Lock-Up Date"). The Holder's request for
registration shall be in writing and shall indicate (i) the
type of registration requested (ii) the intended method of
distribution of such registered shares, (iii) if applicable,
the portion of the Class A Interest to be converted in
connection with, or prior to, registration, and (iv) if
applicable, the number of shares of Registrable Stock to be
registered.
3.2 The Company may give written notice within
ten days after receipt of any request for registration of
the Registrable Stock (the "Notice") to all other persons
who have the right to require the Company to include their
registrable shares of Common Stock in a registration
statement prepared by the Company (whether pursuant to
existing or future rights or agreements with the Company)
of the receipt of such request for registration and shall
include in such registration statement all such registrable
shares of Common Stock as to which the Company receives
written request for inclusion from such other persons within
ten business days after the giving of the Notice.
3.3 The registration statement relating to any
Shelf Registration and any form of the prospectus included
therein or prospectus supplement relating thereto shall
reflect such plan of distribution or method of sale as the
Holder may from time to time notify the Company, including
the sale of some or all of the Registrable Stock in a public
offering or, if requested by the Holder, subject to receipt
by the Company of such information (including information
relating to purchasers) as the Company reasonably may
require, (i) in a transaction constituting a private
placement under Section 4(2) of the Securities Act in
connection with which the Company undertakes to register
such shares after the conclusion of such placement to permit
such shares freely to be tradable by the purchasers thereof,
or (ii) in a transaction under Rule 144A of the Securities Act
in connection with which the Company undertakes to register
such shares after the conclusion of such transaction to
permit such shares freely to be tradable by the purchasers
thereof, in each case subject to the terms and conditions of
this Agreement. The
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Company shall use its reasonable
business efforts to keep the Shelf Registration continuously
effective for the period beginning on the date of which the
Shelf Registration is declared effective and ending on the
first date that there are no shares of Registrable Stock
that have not been sold (provided that the Company may
terminate the effectiveness of a Shelf Registration
registering: (i) 25% or less of the Registrable Stock on the
second anniversary of the date of effectiveness thereof;
(ii) 50% to 75% of the Registrable Stock on the third
anniversary of the date of effectiveness thereof; and (iii)
75% to 100% of the Registrable Stock on the fourth
anniversary of the date of effectiveness thereof, in each
case plus a number of days equal to the number of days in
all Registration Suspension Periods
relating to such Shelf Registration). During the period
during which the Shelf Registration is effective, the
Company shall supplement or make amendments to the Shelf
Registration, if required by the Securities Act or if
reasonably requested by the Holder or its underwriter,
including to reflect any specific plan of distribution or
method of sale (which request shall be made no more
frequently than once every three months), and shall use its
reasonable business efforts to have such supplements and
amendments declared effective, if required, as soon as
practicable after filing.
Once any registration statement filed pursuant to
this Section 3.3 has been declared effective, any period
during which the Company fails to keep such registration
statement effective and usable for resale of Registrable
Stock for the period required by Section 2.2 shall be
referred to as a "Registration Suspension Period." A
Registration Suspension Period shall commence on and include
the date that the Company gives written notice to the Holder
of its determination that such registration statement is no
longer effective or usable for resale of Registrable Stock
(the "Suspension Notice") to and including the date which
the Company notifies the Holder that the use of the
prospectus included in such registration statement may be
resumed for the disposition of the Registrable Stock.
Section 4. Limitations Regarding Registration at
the Request of Holder.
4.1 The Company shall not be required to effect a
registration pursuant to Section 3 if:
(a) if the Company has already
effected one registration for the Holder
pursuant to Section 3 during the
immediately preceding twelve-month
period;
(b) if at the time of the request
to register the resale of Registrable
Stock the Company gives notice within 30
days of such request that it is engaged,
or has plans to engage within 90 days of
the time of the request, in a registered
public offering pursuant to Section 5 as
to which the Holder may include all of
the shares of Registrable Stock which
the Holder desires to sell at that time
and provided that the Company may not
exercise this right more than once in
any twelve-month period. The Company
shall promptly notify the Holder and
effect the registration requested
pursuant to Section 3 if the Company
determines not to proceed with its
planned offering; or
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(c) the Board of Directors of the
Company reasonably determines in good
faith that effecting such a registration
at such time would have a material
adverse effect upon a proposed sale of
all (or substantially all) the assets of
the Company or a merger, reorganization,
recapitalization or similar transaction
materially affecting the capital
structure or equity ownership of the
Company or that the Company is in
possession of material information which
the Board of Directors of the Company
reasonably determines it is not in the
best interests of
the Company to disclose in a
registration statement at such time;
provided, however, that the Company may
only delay a demand registration
pursuant to this clause (c) for a period
not exceeding 60 days (or until such
earlier time as such transaction is
consummated or no longer proposed or the
material information has been made
public (the "Blackout Period").
4.2 The Company shall promptly notify the Holder
in writing of any decision not to effect any such
registration pursuant to this Section 4, which notice shall
set forth the reason for such decision (but not disclosing
any nonpublic material information) and shall include an
undertaking by the Company promptly to notify the Holder as
soon as a registration pursuant to Section 3 may be
effected. Upon notice to the Holder of a Blackout Period,
Holder covenants that he shall (i) use all reasonable
efforts to prevent disclosure, by such Holder or any person
becoming aware of the notice through them, of the fact that
a Blackout Period notice was given; (ii) promptly halt any
offer, sale, trading or transfer by any such Holder or his
Affiliates for the period set forth in the notice; and
(iii) promptly halt any use, publication, or distribution of
any prospectus with respect to Registrable Securities for
the duration of the Blackout Period.
Section 5. Piggy Back Registration. The Holder
will have no rights under this Section 5 with respect to the
registration of the conversion of the Class A Interest into
shares of Common Stock nor until after the Lock-Up Date.
From time to time thereafter, if the Company proposes to
register any of its Common Stock for sale by the Company or
any of its security holders for cash (other than a
registration effected (a) solely to implement the exchange
of securities, assets or stock of other persons, (b) solely
to implement an employee benefit plan, or (c) on behalf of
any security holder of the Company whose right to request
registration does not require it to accept registration of
additional securities and who objects to such inclusion),
the Company will give written notice of its intention to
file a registration statement to Holders and all other
persons who have rights to require the Company to include
their shares on such a registration statement. If the
Holder desires to include Registrable Stock in such
registration he shall, within 30 days after receipt of such
notice from the Company, deliver to the Company a written
request stating the number of shares of Registrable Stock
proposed to be included in the registration and the intended
method of distribution of such shares. The Company will use
its reasonable business efforts to cause all such
Registrable Stock to be registered under the Securities Act
so as to permit the disposition (in accordance with the
methods in said request) by such Holder of the shares so
registered; subject, however, to the limitations set forth
in Section 6.
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Section 6. Limitations Regarding Piggy Back
Registration.
6.1 If a registration of which the Company gives
notice pursuant to Section 5 or a registration of the resale
of Registrable Stock pursuant to Section 3 in which another
security holder desires to include shares is for an
underwritten offering, only securities which are to be
included in the underwriting may be included in the
registration. Notwithstanding any provision of Section 3 or
Section 5, if the underwriter with respect to the offering,
in its sole discretion, determines that marketing factors
require a limitation of the number or dollar amount of
securities to be underwritten or determines that some other
limitation is advisable, the underwriter may exclude or
otherwise limit the number or dollar amount of securities to
be included in the registration and underwriting and the
Company shall include in the registration:
(a) if the registration is
initiated by the Selling Holder as
provided in Section 3 hereof: (i)
first, all the Registrable Stock
requested to be included by the Selling
Holder hereunder, (ii) second, the
amount of securities proposed to be sold
by the Company up to the maximum
includable in the opinion of the
underwriters, and (iii) third, the
amount of securities proposed to be sold
by any other security holders up to the
maximum includable in the opinion of the
underwriters pro rata as among such
security holders on the basis of the
dollar amount of securities to be
included therein by each such person;
(b) if the registration is
initiated by the Company (i) first,
all securities intended to be included
by the Company, and (ii) second, the
amount of securities proposed to be sold
by the Selling Holder hereunder and any
other security holders up to the maximum
includable in the opinion of the
underwriters pro rata as among the
Selling Holder and the other security
holders on the basis of the dollar
amount of securities to be included
therein by each such person; and
(c) if the registration is
initiated by any security holder other
than a holder of Registrable Stock (i)
first, all the securities of any holder
exercising "demand" registration rights,
(ii) second, the amount of securities
proposed to be sold by the Company up to
the maximum includable in the opinion of
the underwriters, and (iii) third, the
amount of securities proposed to be sold
by the Selling Holder and any other
security holders up to the maximum
includable in the opinion of the
underwriters pro rata among the Selling
Holders and other security holders on
the basis of the dollar amount of
securities to be included therein by
each Selling Holder or other security
holder.
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If the number of shares of Registrable Stock which
may be included by the Selling Holder is limited pursuant to
paragraphs (b) and (c) above, the Company shall advise the
Selling Holder of any exclusion or other limitation, and the
number of shares of Registrable Stock that may be included
in the registration and underwriting or the method by which
such number will be calculated. No Registrable Stock
excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such
registration.
6.2 If the Selling Holder determines not to
participate in the underwriting with respect to any such
registration, such Selling Holder may elect to withdraw
therefrom by giving written notice to the Company and the
underwriter prior to the effective date of the registration
statement. The Registrable Stock and/or other securities so withdrawn from
such underwriting shall also be withdrawn from such
registration; provided, however, that if by the withdrawal
of such shares a greater number of shares of Registrable
Stock held by other Selling Holders and other security
holders described in paragraphs (a)(iii), (b)(ii) or
(c)(iii) of Section 6.1, as appropriate, may be included in
such registration (up to the maximum of any limitation
imposed by the underwriters), then the Selling Holder shall
have the right to include additional Registrable Stock (the
securities so included to be allocated pro rata among the
Selling Holder and other security holders described in
paragraphs (a)(iii), (b)(ii) or (c)(iii) of Section 6.1, as
appropriate).
6.3 Notwithstanding the filing of any
registration statement, the Company may, at any time prior
to the effective date thereof and without liability to any
Holder, determine not to register the securities to which
the registration statement relates and withdraw such
registration statement if such withdrawal is requested by
the person initiating the filing or if the Company is in
possession of material information which the Board of
Directors of the Company reasonably determines it is not in
the best interests of the Company to disclose in a
registration statement at such time.
Section 7. Designation of Underwriter.
7.1 In the case of any registration effected
pursuant to Section 3, the requesting Holder shall have the
right to designate the managing underwriter or underwriters
to be employed in connection therewith subject to the
approval of the Company, which approval shall not be
unreasonably withheld or delayed. The Company (together with
any other person including securities in such registration
shall enter into any underwriting agreement relating thereto
and shall make appropriate representations and warranties
and other agreements for the benefit of the underwriters and
the Company. If the Selling Holder disapproves of the terms
of any such underwriting, the Selling Holder may elect to
withdraw therefrom by written notice to the Company and the
underwriter.
7.2 In the case of any registration not initiated
by the Selling Holder pursuant to Section 3, the Company or
another group of security holders shall have the right to
designate the managing underwriter to be employed in
connection therewith and, to the extent required by the
underwriters, the Selling Holder shall be a party to any
underwriting agreement relating thereto and shall make
appropriate representations and warranties and other
agreements for the benefit of the underwriters and the
Company. If the Selling Holder disapproves of the terms of
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any such underwriting, the Selling Holder may elect to
withdraw therefrom by written notice to the Company and the
underwriter.
Section 8. Cooperation by Selling Holder.
8.1 The Selling Holder of Registrable Stock, and
each underwriter designated by each such Selling Holder, if
any, will furnish to the Company such information and
execute such documents as the Company may reasonably require
from such Selling Holder or underwriter in connection with
the registration statement (and the prospectus included
therein) including, without limitation, all information
required by the applicable rules and regulations of the SEC
concerning the proposed method of sale or other disposition
of the Registrable Stock, the identity of and compensation
to be paid to any proposed underwriters to be employed in
connection therewith and such
other information as may be reasonably required by the
Company properly to prepare and file such registration
statement in accordance with applicable provisions of the
Securities Act. The Company's obligations under this
Agreement shall be conditioned on each Selling Holder's
compliance with this Section 8.
8.2 If such Selling Holder desires to sell and
distribute Registrable Stock in a Shelf Registration, then
such Holder shall execute and deliver, and provide to the
Company, such representations, warranties, agreements, and
other documents as the Company and its counsel may
reasonably require in order to assure full compliance with
relevant provisions of the Securities Act, the Exchange Act
and any state securities laws and shall indemnify the
Company from any losses that arise out of or are based upon
any untrue statement contained in the registration
statement, or the prospectus included therein or prospectus
supplement related thereto, or omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to the
extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
reliance upon written information regarding such Holder
furnished to the Company by such Holder expressly for use
therein.
8.3 In the case of an underwritten offering, such
Selling Holder shall agree to sell the Registrable Stock on
the basis of the underwriting arrangements approved by the
person entitled to select the underwriters as provided in
Section 7, shall provide for the benefit of the underwriters
and the Company such representations, warranties,
agreements, and other documents as are required under the
terms of such underwriting arrangements and . shall
indemnify the Company from any losses that arise out of or
are based upon any untrue statement contained in the
registration statement, or the prospectus included therein
or prospectus supplement related thereto, or omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
but only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon written information regarding such Holder
furnished to the Company by such Holder expressly for use
therein.
8.4 In the case of any registration requested
pursuant to the provisions of Section 6, the offering price
for any shares of Common Stock to be so registered shall be
no less than for any Common Stock then to be registered for
sale for the account of the Company or
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other security holders of the Company, unless such shares of Common Stock
are to be offered from time to time based on the prevailing market price.
8.5 The Selling Holder included in the
registration statement will not effect sales thereof after
telegraphic or written notice from the Company to suspend
sales to permit the Company to correct or update a
registration statement or prospectus or during any Blackout
Period until such Selling Holder has received notice from
the Company that the required corrections or updates are
effective or the Blackout Period has ended.
At the end of the period during which the Company
is obligated to keep the registration statement current and
effective as described in Section 2.2, the Selling Holder
shall discontinue sales of securities pursuant to such
registration statement upon receipt of notice from the
Company of its intention to remove from registration the
shares covered by such registration statement which remain
unsold, and such Selling
Holder shall notify the Company of the number of securities
registered which remain unsold promptly upon receipt of such
notice from the Company.
Section 9. Expenses of Registration. All
expenses incurred in effecting any registration pursuant to
this Agreement, including, without limitation, all
registration, filing and qualification fees, printing
expenses, expenses of compliance with blue sky laws, fees
and disbursements of counsel for the Company and expenses of
any audits incidental to or required by any such
registration, qualification or other compliance, and the
reasonable fees and disbursements of one counsel to the
Selling Holder shall be borne by the Company; provided that
all underwriting discounts and commissions applicable to the
sale of Registrable Stock being sold shall be borne by the
persons who are offering Registrable Stock, pursuant to any
such registration, pro rata according to the quantity of
their Registrable Stock so sold.
Section 10. Indemnification.
10.1 To the extent permitted by law, the Company
will, and hereby does, indemnify and hold harmless each
Selling Holder requesting or joining in a registration, each
underwriter of the securities so registered and each other
person who controls any such underwriter within the meaning
of Section 15 of the Securities Act and their respective
successors (collectively, "Indemnitees") against all claims,
losses, damages and liabilities (or actions or proceedings,
whether commenced or threatened in respect thereof), joint
or several arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained
in any prospectus, offering circular or other document
incident to any registration, qualification or compliance
(or in any related registration statement, notification or
the like, or any amendment or supplement thereto) or any
omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances in which they were made, or any violation by
the Company of any rule or regulation promulgated under the
Securities Act or the Exchange Act applicable to the Company
and relating to action or inaction required of the Company
in connection with any such registration, qualification or
compliance, and will reimburse each such Indemnitee for any
legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim,
loss,
Page 11
damage, liability or action; provided, however, that
the Company will not be liable in any such case to the
extent that any such claim, loss, damage or liability is
caused by any untrue statement or omission so made in
conformity with written information furnished to the Company
by such Indemnitee(s) or any failure of any Indemnitee to
comply with the prospectus delivery requirements as to which
the Company or the underwriters have given the Indemnitees
notice or arising out of or based on any acts or omissions
of any Indemnitee in violation of any federal or state
securities laws or this Agreement. The foregoing indemnity
agreement is also subject to the condition that, insofar as
it relates to any such untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in the
preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the
registration statement becomes effective or in the amended
prospectus filed with the SEC pursuant to Rule 424(b) (the
"Final Prospectus"), the foregoing indemnity agreement shall
not inure to the benefit of any underwriter, or any
Indemnitee if there is no underwriter, if a copy of the
Final Prospectus was not furnished by the
Indemnitee or underwriter to the person or entity asserting
the loss, liability, claim or damage at or prior to the time
furnishing the Final Prospectus is required by the
Securities Act.
10.2 To the extent permitted by law, each Selling
Holder requesting or joining in a registration will, and
hereby does, indemnify the Company and its officers and
directors, the underwriter and its officers, directors and
agents and each other security holder of the Company joining
in a registration and its officers, directors and agents,
and each person, if any, who controls any thereof within the
meaning of Section 15 of the Securities Act and their
respective successors against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out
of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus,
offering circular or other document incident to any
registration, qualification or compliance (or in any related
registration statement, notification or the like) or any
omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances in which they were made to the extent that
such untrue statement or omission is contained in any
information with respect to such Selling Holder or with
respect to any underwriting of the Registrable Stock of such
Selling Holder furnished in writing by such Selling Holder
or its representatives to the Company for inclusion in any
of such documents or arising out of or based on any failure
to comply with the prospectus delivery requirements or any
action or omission by any Selling Holder in violation of the
federal or state securities laws or this Agreement and will
reimburse the Company and each other person indemnified
pursuant to this Section 10.2 for any legal and any other
expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage,
liability or action. With respect to each claim pursuant
to this Section 10.02, each Selling Holder's maximum
liability under this Section shall be limited to an amount
equal to the net proceeds actually received by such Selling
Holder (after deducting any underwriting discounts and
expense) from sale of the Registrable Stock being sold
pursuant to such registration statement or prospectus by
such Selling Holder.
10.3 The Company may require, as a condition to
entering into any underwriting or similar placement
agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it in
such form as is customary from each agent or underwriter
named in any such agreement, severally and not jointly, to
indemnify the Company from any losses that arise out of or
are based upon an untrue statement or omission to state
therein a material fact required to be stated therein or
necessary to make the statements
Page 12
therein not misleading, but
only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon written information regarding such agent or
underwriter furnished to the Company by such agent or
underwriter expressly for use therein.
10.4 Each party entitled to indemnification
hereunder (the "indemnified party") shall give notice to the
party required to provide indemnification (the "indemnifying
party") promptly after such indemnified party has actual
knowledge of any action or proceeding involving a claim as
to which indemnity may be sought, and shall permit the
indemnifying party (at its expense) to assume control of the
defense of any claim or any litigation resulting therefrom,
provided, however, that counsel for the
indemnifying party, who shall conduct the defense of such claim
or litigation, shall be reasonably satisfactory to the
indemnified party, and the indemnified party may participate in
such defense at such indemnified party's expense, provided,
further, that should the indemnified party and the indemnifying
party have conflicting interests such that a single firm may
not represent all such parties, the indemnified party shall be
entitled to retain separate counsel at the indemnifying party's
expense, and provided, further, that the failure of any
indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this
Section 10, except to the extent that the indemnifying party is
actually prejudiced as a result of the failure to give notice.
No indemnifying party (i) in the defense of any such claim or
litigation, shall, except with the consent of each indemnified
party, consent to the entry of any judgment or enter into any
settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to
such claim or litigation, (ii) shall be liable for amounts paid
in any settlement if such settlement is effected without the
consent of the indemnifying party, which consent shall not be
unreasonably withheld or delayed, or (iii) shall be liable for
the fees or expenses of more than one separate firm of
attorneys at any time for all indemnified parties.
10.5 If, for any reason, the indemnification provided
for in this Section 10 is unavailable to, or is insufficient to
hold harmless, a party that would have been an indemnified
party under this Section in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each party that would have
been an
indemnifying party thereunder shall, in lieu of indemnifying
such indemnified party, contribute to the extent permitted by
law to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion
as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and such indemnified party
on the other hand in connection with the statement or omission
which resulted in such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof). The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the indemnifying party
or such indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company agrees that it
would not be just and equitable if contribution pursuant to
this Section 10.5 were determined by pro rata allocation or by
any other method of allocation which does not take account of
the equitable considerations referred to above in this Section
10.5. The amount paid or payable by an
Page 13
indemnified party as a
result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to above in
this Section 10.5 shall include any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim (which
shall be limited as provided in Section 10.4 if the
indemnifying party has assumed the defense of any such action
in accordance with the provisions thereof). 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.
Indemnification or, if appropriate, contribution,
similar to that specified in the preceding provisions of this
Section 10 (with appropriate modifications) shall be given by
the Company and each Selling Holder with respect to statements
or omissions contained in applications or other written
information filed in any state or other jurisdiction in
connection with the registration or other qualification of
Registrable Stock under applicable state securities or blue sky
laws or regulations.
In the event of any underwritten offering of
Registrable Stock under the Securities Act pursuant to the
provisions of this Section 10, the Company and each Selling
Holder agree, to the extent practicable, to enter into an
underwriting agreement, in customary form, with the
underwriters, which underwriting agreement may contain
additional provisions with respect to indemnification and
contribution.
10.6 To the extent permitted by law, the
reimbursement required by this Section 10 shall be made by
periodic payments of the amounts thereof during the course of
the investigation or defense, as and when bills are received or
expenses incurred; provided, however, that the indemnifying
party shall have received an undertaking by the indemnified
party to repay such amounts in the event it is later determined
that such indemnification is not available.
Section 11. Transfer of Registration Rights. The
rights to cause the Company to register Registrable Stock
pursuant to this Agreement may not be assigned by a Holder to a
transferee or assignee of such securities except to the grantor
of Holder or to another person to whom Holder is transferring
at least 25,000 shares of Registrable Stock or 1.5% of the
Class A Interest, and provided that (i) the Company is, within
a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee
and the securities with respect to which such registration
rights are being assigned, and (ii) the assignee agrees to be
bound by this Agreement. Upon a transfer in accordance with
this Section 11, the transferee shall collectively with the
Holder be deemed the "Holder" under this Agreement.
Section 12. Lock-Up Agreement. Holder agrees, in
connection with the registration of Registrable Stock for sale
to the general public pursuant to Section 5, that, upon written
request of the underwriters managing any such offering, such
Holder will agree in writing not to sell, make short sales of
or otherwise dispose of any or all of the Registrable Stock
(other than that included in the registration) without the
prior consent of such underwriters for such period of time of
not less than 60 days from the effective date of such
registration as the underwriters may specify.
Page 14
Section 13. Termination of Registration Obligations.
The obligations of the Company to any Holder with respect to
its rights of registration provided for in this Agreement:
(a) shall continue until such time as the
Company warrants to the Holder and counsel to
the Company delivers its written opinion to the
Holder that such Holder has no further
obligation to comply with the registration
requirements of the Securities Act or to deliver
a prospectus meeting the requirements of Section
10(a)(3) of the Securities Act in connection
with sales by such Holder of the Registrable
Stock; and
(b) shall not apply to any proposed sales or
other dispositions or offers therefor of any
Registrable Stock with respect to which the
Company warrants to the Holder and counsel to
the Company delivers its written opinion to the
Holder, or counsel for such Holder is of the
opinion provided that the Company's counsel
concurs with such opinion, and such counsel has
advised the Company and such Holder,
respectively, that such Holder has no obligation
to comply with, or the transaction is exempt
from, the registration requirements of the
Securities Act or to deliver a prospectus
meeting the requirements of Section 10(a)(3) of
the Securities Act.
Section 14. Survival of Agreements. All agreements,
representations and warranties contained herein or made in
writing by or on behalf of the Company and the Holder in
connection with the transactions contemplated hereby shall
survive the execution and delivery of this Agreement. The
indemnification and contribution provisions of Section 10 shall
survive any termination of this Agreement.
Section 15. Miscellaneous Provisions.
15.1 Notices. All notices, demands and other
communications which may or are required to be given hereunder
or with respect hereto shall be in writing, shall be delivered
personally, sent by nationally recognized overnight delivery
service, charges prepaid, or by first class, registered or
certified mail, or by telecopier (fax), and shall be deemed to
have been given or made when personally delivered, the next
business day after delivery to such overnight delivery service,
five (5) days after deposited in the mail, or when received if
sent by telecopier (fax), addressed or sent as follows:
(a) If to the Company:
Home Properties of New York, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. XxXxxxxxx,
Vice President and General Counsel
(000) 000-0000
Telecopier: (000) 000-0000
Page 15
(b) If to Holder:
Express Mail:
Mortgage and Real Estate Division
Michigan Department of Treasury
000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Administrator
(000) 000-0000
Telecopier: (000) 000-0000
Other Mail:
Mortgage and Real Estate
Division Michigan Department of
Treasury X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
Attn: Administrator
with a copy to:
Michigan Department of Attorney
General Finance and Development
Division
One Michigan Avenue
Building 000 Xxxxx
Xxxxxxxxxx Xxxxxx Xxxxxxx,
Xxxxxxxx 00000
(000) 000-0000
Telecopier: (000) 000-0000
and an additional copy to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxx Xxxxxxxxx
or such other addresses as each of the parties hereto may
designate by written notice to the other party.
For purposes of this Agreement, State Treasurer of the State of
Michigan, Custodian of Michigan Public School Employees'
Retirement System, State Employees' Retirement System, Michigan
State Police Retirement System and Michigan Judges' Retirement
System ("SMRS") will only be deemed to have received any notice
upon the written acknowledgment by one individual designated by
SMRS with authority to acknowledge such receipt or upon refusal
by any designee to accept receipt of any notice. SMRS shall at
all times provide the Company with a written
Page 16
designation of at
least two individuals or titles of positions that are so
designated with authority to acknowledge receipt of written
notices.
In all cases where a failure by the Holder to respond within a
specified time frame shall be deemed to be a response. Any
written notice by the Company to SMRS shall specifically state
that a failure to respond within the indicated time frame shall
be deemed to be a response.
15.2 Amendments. This Agreement may not be amended
or terminated orally or in writing unless executed by all the
parties to this Agreement, except that any provision of this
Agreement may be amended with the written consent of the
Company and any Holder as to any rights or obligations of such
Holder or the Company without affecting any other Holder.
15.3 Entire Agreement. This Agreement and the
Acquisition Agreement contain the entire agreement between the
parties with respect to the matters contained herein, and
supersede all negotiations, agreements, representations,
warranties, commitments, whether in writing or oral, prior to
the date hereof.
15.4 Execution and Counterparts. This Agreement may
be executed in any number of counterparts, each of which when
so executed and delivered shall be deemed an original, and such
counterparts together shall constitute one instrument. Each
party shall receive a duplicate original of the counterpart
copy or copies executed by it and by the Company.
15.5 Governing Law and Severability. This Agreement
shall be governed by the laws of the State of New York as
applied to agreements entered into and to be performed entirely
within the State. If any provision of this Agreement or any
application thereof is held to be unenforceable, the remainder
of the Agreement and any application of such provision shall
not be affected thereby and to the extent permitted by law,
there shall
be substituted for the provisions held unenforceable,
provisions which shall, as nearly as possible, have the same
economic effect as the provisions held unenforceable.
15.6 Headings. The headings of the Sections and
paragraphs of this Agreement are inserted for convenience only
and do not constitute a part of this Agreement.
15.7 Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and
to the extent provided in Section 11 with respect to the rights
of Holder hereunder, its successors and permitted transferees.
IN WITNESS WHEREOF, each of the parties have executed
this Agreement on the date first written above.
COMPANY:
HOME PROPERTIES OF NEW YORK, INC.
By: /s/ Xxx X. Xxxx
Xxx X. Xxxx, Executive Vice President
Page 17
HOLDER:
STATE TREASURER OF THE STATE OF
MICHIGAN, CUSTODIAN OF MICHIGAN
PUBLIC SCHOOL EMPLOYEES' RETIREMENT
SYSTEM, STATE EMPLOYEES' RETIREMENT
SYSTEM, MICHIGAN STATE POLICE
RETIREMENT SYSTEM AND MICHIGAN
JUDGES' RETIREMENT SYSTEM
By: /s/ Xxxxxx X. Xxx Xxxxxx
Xxxxxx X. Xxx Xxxxxx
Administrator
Mortgage and Real Estate Division
Page 18
