REGISTRATION RIGHTS AGREEMENT BY AND AMONG AVATAR HOLDINGS INC. JEN I, L.P., JEN RESIDENTIAL LP AND THE OTHER SHAREHOLDERS FROM TIME TO TIME PARTY HERETO Dated as of October 25, 2010
Exhibit 99.6
BY AND AMONG
JEN I, L.P.,
JEN RESIDENTIAL LP
AND
THE OTHER SHAREHOLDERS FROM TIME TO TIME PARTY HERETO
Dated as of October 25, 2010
TABLE OF CONTENTS
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Section 1.
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Definitions | 1 | ||||
Section 2.
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Demand Registration | 3 | ||||
Section 3.
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Piggyback Registrations | 5 | ||||
Section 4.
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Holdback Agreements | 6 | ||||
Section 5.
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Registration Procedures | 7 | ||||
Section 6.
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Registration Expenses | 11 | ||||
Section 7.
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Indemnification and Contribution | 12 | ||||
Section 8.
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Underwritten Registrations | 14 | ||||
Section 9.
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Current Public Information | 15 | ||||
Section 10.
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Transfer of Registrable Securities | 15 | ||||
Section 11.
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General Provisions | 15 | ||||
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of October 25, 2010,
among Avatar Holdings Inc., a Delaware Corporation (the “Company”), JEN I, L.P. (“JEN
I”) and JEN Residential LP (“JEN Res”).
The Company and certain of the Shareholders’ Affiliates are parties to a Master Transaction
Agreement dated as of October 25, 2010 (the “Master Agreement”) and various other
agreements entered into in connection therewith. In order to induce the Shareholders’ Affiliates
to enter into the Master Agreement and the other Operative Documents (as defined in the Master
Agreement), the Company has agreed to provide the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to the consummation of the transactions
under the Master Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement hereby agree as follows:
Section 1. Definitions.
Unless otherwise set forth below or elsewhere in this Agreement, other capitalized terms
contained herein have the meanings set forth in the Master Agreement.
“Agreement” has the meaning set forth in the preamble.
“Business Day” means any day that is not a Saturday, Sunday or other day on which
banks are required or authorized by law to be closed in New York City.
“Commencement Date” means October 25, 2012.
“Company” has the meaning set forth in the preamble.
“Company-Paid Demand Registration” has the meaning set forth in Section
2(a).
“Demand Registration” has the meaning set forth in Section 2(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor federal law then in force, together with all rules and regulations
promulgated thereunder.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Free Writing Prospectus” means a free-writing prospectus, as defined in Rule 405.
“Holdback Extension” has the meaning set forth in Section 4(a)(ii).
“Holdback Period” has the meaning set forth in Section 4(a)(i).
“Indemnified Parties” has the meaning set forth in Section 7(a).
“JEN I” has the meaning set forth in the preamble.
“JEN Res” has the meaning set forth in the preamble.
“Lockup Agreement” means the agreement attached as Exhibit E to the Master
Agreement.
“Majority Holders” means, at any time, Shareholders holding a majority of the
Registrable Securities at such time.
“Person” means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity or any department, agency or political subdivision thereof.
“Piggyback Registration” has the meaning set forth in Section 3(a).
“Public Offering” means any sale or distribution to the public of any capital stock of
the Company pursuant to a public offering registered under the Securities Act.
“Master Agreement” has the meaning set forth in the recitals.
“Registrable Securities” means (i) any Common Stock received by the Shareholders
pursuant to the Master Agreement, (ii) any Common Stock received by the Shareholders pursuant to
the Earnout Agreement, dated as of October 25, 2010, among the Company and the Shareholders, and
(iii) any common capital stock of the Company issued or issuable with respect to the securities
referred to in clauses (i) or (ii) above by way of dividend, distribution, split or
combination of securities, or any recapitalization, merger, consolidation or other reorganization.
As to any particular Registrable Securities, such securities shall cease to be Registrable
Securities upon the earliest to occur of: (a) the date on which such Registrable Securities are
sold or distributed pursuant to an effective registration statement under the Securities Act, (b)
the date on which such Registrable Securities are sold in compliance with Rule 144, and (c) the
date on which such Registrable Securities are repurchased by the Company or a Subsidiary of the
Company.
“Registration Expenses” has the meaning set forth in Section 6(a).
“Rule 144,” “Rule 145,” “Rule 158,” and “Rule 405,” mean, in
each case, such rule promulgated under the Securities Act (or any successor provision) by the
Securities and Exchange Commission, as the same shall be amended from time to time, or any
successor rule then in force.
“Sale Transaction” has the meaning set forth in Section 4(a)(i).
“Securities” has the meaning set forth in Section 4(a)(i).
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“Securities Act” means the Securities Act of 1933, as amended, or any successor
federal law then in force, together with all rules and regulations promulgated thereunder.
“Shareholders” means (i) JEN I and JEN Res, and (ii) in connection with a transfer
from JEN I or JEN Res pursuant to a pro rata distribution of all or a portion of their assets to
their partners, Xxxxxx Xxxxxxxxx and Xxxxx Xxxxxxxx and/or their controlled Affiliates;
provided, however, that in the case of (ii), in order to become a Shareholder, such
Person must (A) hold Registrable Securities, and (B) deliver a written instrument to the Company,
in form and substance reasonably satisfactory to the Company, confirming that such Person is
subject to and bound by the obligations of this Agreement as a Shareholder.
“Subsidiary” means, with respect to the Company, any corporation, limited liability
company, partnership, association or other business entity of which (i) if a corporation, a
majority of the total voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by the Company or one or more of the other
Subsidiaries of the Company or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the limited liability company,
partnership or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by the Company or one or more Subsidiaries of the Company or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other business entity if such
Person or Persons shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control the managing director
or general partner of such limited liability company, partnership, association or other business
entity.
“Suspension Period” has the meaning set forth in Section 5(a)(vi).
“Violation” has the meaning set forth in Section 7(a).
Section 2. Demand Registration.
(a) Requests for Registration. Subject to the terms and conditions of this Agreement,
at any time after the Commencement Date (or, if earlier, the date on which the Shareholders’
obligations under Section 1.3 of the Lockup Agreement are terminated) until such time as
the Shareholders collectively hold less than 5% of the Common Stock of the Company, the Majority
Holders may request registration under the Securities Act of all or any portion of their
Registrable Securities on Form X-0, X-0 or any similar registration statement. Any registrations
requested pursuant to this Section 2(a) shall be referred to herein as a
“Demand Registration.” Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered and the intended method of
distribution. Subject to the terms of Section 2(d), the Company shall include
in such Demand Registration (and in all related registrations and qualifications under state blue
sky laws and in any related underwriting) all Registrable
Securities with respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of such written requests.
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(b) Demand Registration. Following the Commencement Date, the Majority Holders shall
be entitled to request one Demand Registration in which the Company shall pay all Registration
Expenses (“Company-Paid Demand Registration”); provided that the aggregate offering
value of the Registrable Securities requested to be registered in any Demand Registration must
equal at least $5,000,000. A registration shall not count as a Demand Registration until it has
become effective. No Company-Paid Demand Registration shall count as a Demand Registration unless
the Shareholders are able to register and sell at least 75% of the Registrable Securities requested
to be included in such registration; provided that in any event the Company shall pay all
Registration Expenses in connection with any registration initiated as a Company-Paid Demand
Registration whether or not it has become effective and whether or not such registration has
counted as a Company-Paid Demand Registration.
(c) Shelf Registrations. The Company shall use its commercially reasonable efforts to
maintain a shelf registration statement for the sale of Registrable Securities until the fourth
anniversary of the Commencement Date.
(d) Priority on Demand Registration. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other securities, if
any, which can be sold therein without adversely affecting the marketability, proposed offering
price, timing or method of distribution of the offering, the Company shall include in such
registration prior to the inclusion of any securities which are not Registrable Securities the
number of Registrable Securities requested to be included which, in the opinion of such
underwriters, can be sold, without any such adverse effect.
(e) Restrictions on Demand Registration. The Company shall not be obligated to effect
any Demand Registration within 180 days after the effective date of a previous registration in
which Registrable Securities were included pursuant to Section 3. The Company
may postpone, for up to 90 days from the date of the request, the filing or the effectiveness of a
registration statement for a Demand Registration if the Company’s board of directors determines in
its reasonable good faith judgment that such Demand Registration would reasonably be expected to
have a material adverse effect on any proposal or plan by the Company or any Subsidiary to engage
in any material acquisition of assets or stock (other than in the ordinary course of business) or
any material merger, consolidation, tender offer, recapitalization, reorganization or similar
transaction or would require the Company to disclose any material nonpublic information which would
reasonably be likely to be materially detrimental to the Company and its Subsidiaries;
provided that in such
event, the Majority Holders shall be entitled to withdraw such request, and if such request is
withdrawn, such Demand Registration shall not count as a Demand Registration hereunder and the
Company shall pay all Registration Expenses in connection with such registration. The Company may
delay a Demand Registration hereunder only once in any twelve-month period.
(f) Selection of Underwriters. The Company shall have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to consultation with and
the approval of the Majority Holders, which approval shall not be unreasonably withheld or delayed.
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(g) Other Registration Rights. The Company represents and warrants that it is not a
party to, or otherwise subject to, any other agreement granting registration rights to any other
Person with respect to any securities of the Company.
Section 3. Piggyback Registrations.
(a) Right to Piggyback. Following the Commencement Date, whenever the Company
proposes to register any of its securities under the Securities Act (other than (i) pursuant to a
Demand Registration, (ii) in connection with registrations on Form S-4 or S-8 promulgated by the
Securities and Exchange Commission or any successor or similar forms, (iii) in connection with a
Rule 145 transaction, or (iv) in connection with registrations on any registration form that does
not permit secondary sales or does not include substantially the same information as would be
required to be included in a registration statement covering the sale of Registrable Securities)
and the registration form to be used may be used for the registration of Registrable Securities (a
“Piggyback Registration”), the Company shall give prompt written notice to the Shareholders
of its intention to effect such Piggyback Registration and, subject to the terms of
Section 3(c) and Section 3(d), shall include in such
Piggyback Registration (and in all related registrations or qualifications under blue sky laws and
in any related underwriting) all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days after delivery of the Company’s
notice; provided, that the Shareholders shall not be entitled to have Registrable
Securities included in more than four Piggyback Registrations.
(b) Piggyback Expenses. The Registration Expenses of the Shareholders shall be paid
by the Company in all Piggyback Registrations, whether or not any such registration became
effective.
(c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing that in their
opinion the number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the marketability, proposed
offering price, timing or method of distribution of the offering, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii) second, the Registrable
Securities requested to be included in such registration which, in the opinion of the underwriters,
can be sold without any such adverse effect, and (iii) third, other securities requested to be
included in such registration which, in the opinion of the underwriters, can be sold without any
such adverse effect.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities, and the
managing underwriters advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability, proposed offering price, timing or method of
distribution of the offering, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders requesting such registration, (ii)
second, the number of Registrable Securities requested to be included in such registration which,
in the opinion of the underwriters, can be sold without any such adverse effect, pro rata among
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the
holders of such securities on the basis of the number of securities so requested to be included
therein, and (iii) third, other securities requested to be included in such registration which, in
the opinion of the underwriters, can be sold without any such adverse effect.
(e) Right to Terminate Registration. Subject to the terms of this Agreement, the
Company shall have the right to terminate or withdraw any registration initiated by it under this
Section 3 whether or not the Shareholders have elected to include securities in
such registration. The Registration Expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 6.
Section 4. Holdback Agreements.
(a) The Shareholders. If requested by the Company, the Shareholders shall enter into
lock-up agreements with the managing underwriter(s) of an underwritten Public Offering in such form
as agreed to by the Shareholders. In the absence of any such lock-up agreement, the Shareholders
agree as follows:
(i) in connection with all underwritten Public Offerings with respect to which the
Company has complied with its obligations hereunder, each Shareholder agrees, if and to the
extent (i) requested by the managing underwriter of such underwritten offering and (ii)
notwithstanding Section 4(b), all of the Company’s named executive
officers and directors execute agreements identical to those referred to in this
Section 4(a), that they shall not (A) offer, sell, contract to sell,
pledge or otherwise
dispose of (including sales pursuant to Rule 144), directly or indirectly, any capital
stock of the Company (including capital stock of the Company that may be deemed to be owned
beneficially by the Shareholders in accordance with the rules and regulations of the
Securities and Exchange Commission) (collectively, “Securities”), (B) enter into a
transaction which would have the same effect as described in clause (A) above, (C) enter
into any swap, hedge or other arrangement that transfers, in whole or in part, any of the
economic consequences or ownership of any Securities, whether such transaction is to be
settled by delivery of such Securities, in cash or otherwise (each of (A), (B) and (C)
above, a “Sale Transaction”), or (D) publicly disclose the intention to enter into
any Sale Transaction, from the date on which the Company gives notice to the Shareholders of
the circulation of a preliminary or final prospectus for such Public Offering (which date
must be no earlier than 14 days prior to the date such Public Offering is expected to
commence) to the date that is 90 days following the date of the final prospectus for such
Public Offering (a “Holdback Period”), unless the underwriters managing such Public
Offering otherwise agree in writing; and
(ii) in the event that (A) the Company issues an earnings release or discloses other
material information or a material event relating to the Company and its Subsidiaries occurs
during the last 17 days of the Holdback Period or (B) prior to the expiration of the
Holdback Period, the Company announces that it will release earnings results during the
16-day period beginning upon the expiration of such period, then to the extent necessary for
a managing or co-managing underwriter of a registered offering hereunder to comply with
FINRA Rule 2711(f)(4), the Holdback Period shall be extended until 18 days after the
earnings release or disclosure of other material
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information or the occurrence of the
material event, as the case may be (a “Holdback Extension”).
The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or
other securities) subject to the restrictions set forth in this Section 4 (a)
until the end of such period, including any Holdback Extension.
(b) The Company. The Company (i) shall not file any registration statement for a
Public Offering or cause any such registration statement to become effective during any Holdback
Period, as extended during any Holdback Extension, and (ii) shall use its reasonable best efforts
to cause each of its directors and executive officers, to agree not to effect any Sale Transaction
during any Holdback Period (as extended by any Holdback Extension), except as part of such
underwritten registration, if otherwise permitted, unless the underwriters managing the Public
Offering otherwise agree in writing.
Section 5. Registration Procedures.
(a) Whenever the Shareholders have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company shall use its reasonable best
efforts to effect the registration and the sale of such Registrable Securities in accordance
with the intended method of disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:
(i) in accordance with the Securities Act and all applicable rules and regulations
promulgated thereunder, prepare and file with the Securities and Exchange Commission a
registration statement, and all amendments and supplements thereto and related prospectuses,
with respect to such Registrable Securities and use its reasonable best efforts to cause
such registration statement to become effective (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company shall furnish
to the counsel selected by the Majority Holders copies of all such documents proposed to be
filed, which documents shall be subject to the review and comment of such counsel);
(ii) notify the Shareholders of (A) the issuance by the Securities and Exchange
Commission of any stop order suspending the effectiveness of any registration statement or
the initiation of any proceedings for that purpose, (B) the receipt by the Company or its
counsel of any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, and (C) the effectiveness of each registration statement filed
hereunder;
(iii) prepare and file with the Securities and Exchange Commission such amendments and
supplements to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period ending when
all of the securities covered by such registration statement have been disposed of in
accordance with the intended methods of distribution by the sellers thereof set forth in
such registration statement (but not in any event before the expiration
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of any longer period
required under the Securities Act or, if such registration statement relates to an
underwritten Public Offering, such longer period as in the opinion of counsel for the
underwriters a prospectus is required by law to be delivered in connection with sale of
Registrable Securities by an underwriter or dealer) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(iv) furnish to the Shareholders such number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus), each Free Writing Prospectus and such
other documents as the Shareholders may reasonably request in order to facilitate the
disposition of the Registrable Securities;
(v) use its reasonable best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as the Shareholders
reasonably requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities (provided that the Company shall not be
required to (A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (B) consent to general service
of process in any such jurisdiction or (C) subject itself to taxation in any such
jurisdiction);
(vi) notify the Shareholders (A) promptly after it receives notice thereof, of the date
and time when such registration statement and each post-effective amendment thereto has
become effective or a prospectus or supplement to any prospectus relating to a registration
statement has been filed and when any registration or qualification has become effective
under a state securities or blue sky law or any exemption thereunder has been obtained, (B)
promptly after receipt thereof, of any request by the Securities and Exchange Commission for
the amendment or supplementing of such registration statement or prospectus or for
additional information, and (C) at any time when a prospectus relating thereto 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 contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not misleading,
and, at the request of the Majority Holders, the Company shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements therein not misleading;
provided, that at any time, upon written notice to the Shareholders and for a period
not to exceed 60 days thereafter (the “Suspension Period”), the Company may delay
the filing or effectiveness of any registration statement or suspend the use or
effectiveness of any registration statement (and the Shareholders hereby agree not to offer
or sell any Registrable Securities pursuant to such registration statement during the
Suspension Period) if the Company reasonably believes that there is or may be in existence
material nonpublic information or events involving the Company, the failure of which to be
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disclosed in the prospectus included in the registration statement could result in a
Violation;
(vii) use reasonable best efforts to cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on a securities exchange;
(viii) use reasonable best efforts to provide a transfer agent and registrar for all
such Registrable Securities not later than the effective date of such registration
statement;
(ix) enter into and perform such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the Majority Holders or the
underwriters, if any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities (including, without limitation, effecting a stock split,
combination of shares, recapitalization or reorganization);
(x) make available for inspection by the Shareholders, any underwriter participating in
any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such Shareholder or underwriter, all
financial and other records, pertinent corporate and business documents and properties of
the Company as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors, employees, agents,
representatives and independent accountants to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(xi) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in
connection with any Demand Registration or Piggyback Registration hereunder complies in all
material respects with the Securities Act, is filed in accordance with the Securities Act to
the extent required thereby, is retained in accordance with the Securities Act to the extent
required thereby and, when taken together with the related prospectus, shall not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading;
(xii) otherwise use its reasonable best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and make generally available to its
security holders, as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 under the Securities Act (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts Public Offering or
(B) if not sold to underwriters in such an offering, beginning with the first month of the
Company’s first fiscal quarter commencing after the effective date of the registration
statement;
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(xiii) permit the Shareholders (to the extent the Shareholders might be deemed to be an
underwriter or controlling persons of the Company), to consult in the preparation of such
registration or comparable statement and to consider language provided by any of the
Shareholders for insertion therein, which in the reasonable judgment of the Shareholders and
their counsel should be included; provided that the Company shall be entitled to
include or omit any such language from any registration or comparable statement (in its sole
discretion);
(xiv) in the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or the issuance of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any Common Stock included in such
registration statement for sale in any jurisdiction use reasonable best efforts promptly to
obtain the withdrawal of such order;
(xv) use its reasonable best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the sellers thereof to consummate the
disposition of such Registrable Securities;
(xvi) cooperate with the Shareholders and the managing underwriter or agent, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the registration statement and enable such
securities to be in such denominations and registered in such names as the managing
underwriter, or agent, if any, or the Shareholders may request;
(xvii) cooperate with the Shareholders and each underwriter or agent participating in
the disposition of such Registrable Securities and their respective counsel in connection
with any filings required to be made with FINRA;
(xviii) use its reasonable best efforts to make available the executive officers of the
Company to participate with the Shareholders and any underwriters in any “road shows” in
connection with the methods of distribution for the Registrable Securities;
(xix) use its reasonable best efforts to obtain one or more cold comfort letters from
the Company’s independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as the Majority Holders reasonably
requests; and
(xx) use its reasonable best efforts to provide a legal opinion of the Company’s
outside counsel, dated the effective date of such registration statement (and, if such
registration includes an underwritten Public Offering, dated the date of the closing under
the underwriting agreement), the registration statement, each amendment and supplement
thereto, the prospectus included therein (including the preliminary prospectus) and such
other documents relating thereto in customary form and covering such matters of the type
customarily covered by legal opinions of such nature and
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reasonably satisfactory to the
Shareholders, which opinion shall be addressed to the underwriters and the Shareholders.
(b) The Company shall not undertake any voluntary act that could be reasonably expected to
cause a Violation or result in delay or suspension under Section 5(a)(vi).
During any Suspension Period, and as may be extended hereunder, the Company shall use its
reasonable best efforts to correct or update any disclosure causing the Company to provide notice
of the Suspension Period and to file and cause to become effective or terminate the suspension of
use or effectiveness, as the case may be, the subject registration statement. In the event that
the Company shall exercise its right to delay or suspend the filing or effectiveness of a
registration hereunder, the applicable time period during which the registration statement is to
remain effective shall be extended by a period of time equal to the duration of the Suspension
Period. The Company may extend the Suspension Period for an additional consecutive 60 days with
the consent of the Majority Holders, which consent shall not be unreasonably withheld. If so
directed by the Company, the Shareholders shall (i) not offer to sell any Registrable Securities
pursuant to the registration statement during the period in which the delay or suspension is in
effect after receiving notice of such delay or suspension and (ii) use its reasonable best efforts
to deliver to the Company (at the Company’s expense) all copies, other than permanent file copies
then in the Shareholders’ possession, of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
Section 6. Registration Expenses.
(a) The Company’s Obligation. All expenses incident to the Company’s performance of
or compliance with this Agreement (including, without limitation, all registration, qualification
and filing fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company and all independent certified public accountants,
underwriters (excluding underwriting discounts and commissions) and other Persons retained by the
Company) (all such expenses being herein called “Registration Expenses”), shall be borne as
provided in this Agreement, except that the Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly review, the expense of
any liability insurance and the expenses and fees for listing the securities to be registered on
each securities exchange on which similar securities issued by the Company are then listed. Each
Person that sells securities pursuant to a Demand Registration or Piggyback Registration hereunder
shall bear and pay all underwriting discounts and commissions applicable to the securities sold for
such Person’s account.
(b) Shareholders. To the extent Registration Expenses are not required to be paid by
the Company, the Shareholders shall pay those Registration Expenses allocable to the registration
of the Shareholders’ securities included in any registration statement pro rata, and any
Registration Expenses not so allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to be so registered.
-11-
Section 7. Indemnification and Contribution.
(a) By the Company. The Company shall indemnify, defend and hold harmless the
Shareholders, the Shareholders’ officers, directors, employees, members, partners, agents and
representatives, and each Person who controls any Shareholder (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) (the “Indemnified Parties”) for, from
and against all losses, claims, actions, damages, liabilities and expenses (including with respect
to actions or proceedings, whether commenced or threatened, and including reasonable attorney fees
and expenses) caused by, resulting from, arising out of, based upon or related to any of the
following statements, omissions or violations (each a “Violation”) by the Company: (i) any
untrue statement or alleged untrue statement of material fact contained in (A) any registration
statement, prospectus, preliminary prospectus or Free-Writing Prospectus, or any amendment thereof
or supplement thereto or (B) any application or other document or communication (in this
Section 7, collectively called an “application”) executed by or on
behalf of the Company or based upon
written information furnished by or on behalf of the Company filed in any jurisdiction in
order to qualify any securities covered by such registration under the securities laws thereof,
(ii) any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading or (iii) any violation or alleged violation by the
Company of the Securities Act or any other similar federal or state securities laws or any rule or
regulation promulgated thereunder applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification or compliance. In
addition, the Company will reimburse such Indemnified Party for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any such losses.
Notwithstanding the foregoing, the Company shall not be liable in any such case to the extent that
any such losses result from, arise out of, are based upon, or relate to an untrue statement or
alleged untrue statement, or omission or alleged omission, made in such registration statement, any
such prospectus, preliminary prospectus or Free-Writing Prospectus or any amendment or supplement
thereto, or in any application, in reliance upon, and in conformity with, written information
prepared and furnished in writing to the Company by such Indemnified Party expressly for use
therein or by such Indemnified Party’s failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has furnished such
Indemnified Party with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company shall indemnify such underwriters, their officers and directors,
and each Person who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the Indemnified Parties.
(b) By Each Shareholder. In connection with any registration statement in which any
Shareholder is participating, the Shareholders shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in connection with any such
registration statement or prospectus and, to the extent permitted by law, shall indemnify and
defend the Company, its officers, directors, employees, agents and representatives, and each Person
who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) for, from and against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be stated
-12-
therein or
necessary to make the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished in writing by the
Shareholders; provided that the obligation to indemnify shall be limited to the net amount
of proceeds received by the Shareholders from the sale of Registrable Securities pursuant to such
registration statement.
(c) Claim Procedure. Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall impair any Person’s right to
indemnification hereunder only to the extent such failure has prejudiced the indemnifying party)
and (ii) unless in
such indemnified party’s reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with respect to such
claim. In such instance, the conflicted indemnified parties shall have a right to retain one
separate counsel, chosen by the holders of a majority of the Securities included in the
registration if the Shareholders are the indemnified parties, at the expense of the indemnifying
party.
(d) Contribution. If the indemnification provided for in this Section
7 is held by a court of competent jurisdiction to be unavailable to, or is insufficient to hold
harmless, an indemnified party or is otherwise unenforceable with respect to any loss, claim,
damage, liability or action referred to herein, then the indemnifying party shall contribute to the
amounts paid or payable by such indemnified party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other hand in connection
with the statements or omissions which resulted in such loss, claim, damage, liability or action as
well as any other relevant equitable considerations; provided that the maximum amount of
liability in respect of such contribution shall be limited, in the case of the Shareholders, to an
amount equal to the net proceeds actually received by the Shareholders from the sale of Registrable
Securities effected pursuant to such registration. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just or equitable if the
contribution pursuant to this Section 7(d) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account such equitable
considerations. The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses referred to herein shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending against any action or claim
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which is the subject hereof. 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 is not guilty of such fraudulent misrepresentation.
(e) Release. No indemnifying party shall, except with the consent of the indemnified
party, consent to the entry of any judgment or enter into any settlement that 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.
(f) Non-exclusive Remedy; Survival. The indemnification and contribution provided for
under this Agreement shall be in addition to any other rights to indemnification or contribution
that any indemnified party may have pursuant to law or contract and shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and shall survive the transfer of
Registrable Securities and the termination or expiration of this Agreement.
Section 8. Underwritten Registrations.
(a) Participation. No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person’s securities on the basis provided
in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements (including, without limitation, pursuant to any over-allotment or “green shoe”
option requested by the underwriters; provided that the Shareholders shall not be required
to sell more than the number of Registrable Securities the Shareholders have requested to include)
and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements;
provided that the Shareholders shall not be required to make any representations or
warranties to the Company or the underwriters (other than representations and warranties regarding
the Shareholders and the Shareholders’ intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect thereto that are
materially more burdensome than those provided in Section 7. The Shareholders
shall execute and deliver such other agreements as may be reasonably requested by the Company and
the lead managing underwriter(s) that are consistent with the Shareholders’ obligations under
Section 4, Section 5 and this Section 8(a)
or that are necessary to give further effect thereto. To the extent that any such agreement is
entered into pursuant to, and consistent with, Section 4 and this
Section 8(a), the respective rights and obligations created under such agreement
shall supersede the respective rights and obligations of the Shareholders, the Company and the
underwriters created pursuant to this Section 8(a).
(b) Suspended Distributions. Each Person that is participating in any registration
under this Agreement, upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 5(a)(vi), shall immediately discontinue the
disposition of its Registrable Securities pursuant to the registration statement until such
Person’s receipt of the copies of a supplemented or amended prospectus as contemplated by
Section 5(a)(vi). In the event the Company has given any such notice, the
applicable time period set forth in Section 5(a)(ii) during which a Registration
Statement is to remain effective shall be extended by the number of days during the
period from and including the date of the giving of
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such notice pursuant to this
Section 8(b) to and including the date when each seller of Registrable
Securities covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by Section 5(a)(vi).
Section 9. Current Public Information. At all times after the date hereof,
during which Registrable Securities remain outstanding, the Company shall file all reports required
to be filed by it under the Securities Act and the Exchange Act. During any period in which the
Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall make available
to any Shareholder or beneficial owner of Registrable Securities in connection with any sale
thereof and any prospective purchaser of such Registrable Securities from such Shareholder or
beneficial owner, the information required by Rule 144 under the Securities Act in order to permit
resales of such Registrable Securities pursuant to Rule 144 under the Securities Act.
Section 10. Transfer of Registrable Securities.
(a) Legend. Each certificate evidencing any Registrable Securities and each
certificate issued in exchange for or upon the transfer of any Registrable Securities (unless such
Registrable Securities would no longer be Registrable Securities after such transfer) shall be
stamped or otherwise imprinted with a legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS SET FORTH IN A
REGISTRATION RIGHTS AGREEMENT DATED AS OF OCTOBER 25, 2010 AMONG THE
ISSUER OF SUCH SECURITIES (THE “COMPANY”), JEN I, L.P. AND JEN
RESIDENTIAL LP. A COPY OF SUCH REGISTRATION RIGHTS AGREEMENT WILL
BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST. THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY FOREIGN OR STATE
SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE
THEREWITH.”
The Company shall imprint such legend on certificates evidencing Registrable Securities outstanding
prior to the date hereof. The legend set forth above shall be removed from the certificates
evidencing any securities that have ceased to be Registrable Securities.
Section 11. General Provisions.
(a) Amendments and Waivers. Except as otherwise provided herein, the provisions of
this Agreement may be amended, modified or waived only with the prior written consent of the
Company and the Majority Holders. The failure or delay of any Person to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the right of such Person thereafter to enforce each and every
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provision of this
Agreement in accordance with its terms. A waiver or consent to or of any breach or default by any
Person in the performance by that Person of his, her or its obligations under this Agreement shall
not be deemed to be a consent or waiver to or of any other breach or default in the performance by
that Person of the same or any other obligations of that Person under this Agreement.
(b) Remedies. The parties to this Agreement shall be entitled to enforce their rights
under this Agreement specifically (without posting a bond or other security), to recover damages
caused by reason of any breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that a breach of this Agreement
would cause irreparable harm and money damages would not be an adequate remedy for any such breach
and that, in addition to any other rights and remedies existing hereunder, any party shall be
entitled to specific performance and/or other injunctive relief from any court of law or equity of
competent jurisdiction (without posting any bond or other security) in order to enforce or prevent
violation of the provisions of this Agreement.
(c) Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited, invalid, illegal or unenforceable in any respect under
any applicable law or regulation in any jurisdiction, such prohibition, invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of any other provision
of this Agreement in such jurisdiction or in any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such prohibited, invalid, illegal or
unenforceable provision had never been contained herein.
(d) Entire Agreement. Except as otherwise provided herein, this Agreement contains
the complete agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements or representations
by or among the parties hereto, written or oral, which may have related to the subject matter
hereof in any way.
(e) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed
to create any third party beneficiary rights in any person or entity not a party to this Agreement.
Except as expressly permitted hereby, no assignment of this Agreement or of any rights or
obligations hereunder may be made (by operation of law or otherwise) by (a) the Company without the
prior written consent of the Majority Holders or (b) any Shareholder without the prior written
consent of the Company, and any attempted assignment without the required consents shall be void.
Notwithstanding the foregoing, the Company shall be permitted to assign this Agreement in
connection with any consolidation or merger of the Company or Avatar Properties Inc. with or into
another Person.
(f) Notices. All notices and other communications required or permitted under this
Agreement shall be in writing and shall be deemed given when delivered personally or when
telecopied, or five Business Days after deposit in the mail, if sent by registered mail, return
receipt requested, or the next Business Day after deposit with a guaranteed overnight delivery or
-16-
courier service, to the parties at the following addresses (or such other addresses as shall be
changed by a like notice), except as expressly provided in this Agreement:
If to the Company, to:
Avatar Holdings Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Attention: General Counsel
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Attention: General Counsel
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Simeon Gold
Xxx-Xxxx Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Simeon Gold
Xxx-Xxxx Xxxxxxx
and to:
Akerman Senterfitt LLP
Xxx Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx
Xxx Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx
If to the Shareholders, to:
JEN I, L.P.
c/o JEN Partners, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
and
c/o JEN Partners, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
and
JEN Residential LP
c/o JEN Partners, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
c/o JEN Partners, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
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With a copy to:
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
(g) Business Days. If any time period for giving notice or taking action hereunder
expires on a day that is not a Business Day, the time period shall automatically be extended to the
Business Day immediately following such Saturday, Sunday or legal holiday.
(h) Governing Law. This Agreement and any claim, demand, dispute, controversy, action
or cause of action (i) arising out of or relating to this Agreement or any ancillary agreement
(including the existence, validity, interpretation or breach hereof or thereof) or (ii) in any way
connected with or related or incidental to the dealings of the parties hereto in respect of this
Agreement, any ancillary agreement, or any of the transactions contemplated hereby and thereby, in
each case whether now existing or hereafter arising, and whether in contract, tort, equity, statute
or otherwise (each, a “Dispute”) shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and performed in such state, without
regard to the principles of conflicts of laws thereof (other than Section 5-1401 of the New York
General Obligations Law).
(i) WAIVER OF JURY TRIAL. THE PARTIES TO THIS AGREEMENT EACH HEREBY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE
OF ACTION (i) ARISING UNDER THIS AGREEMENT OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREE AND CONSENT
THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(j) Jurisdiction; Consent to Service of Process; Waiver. The parties hereto hereby
irrevocably submit to the exclusive jurisdiction of any federal or state court located within the
State of New York over any dispute arising out of or relating to this Agreement and each party
hereby irrevocably agrees that all claims in respect of such dispute or any suit, action or
proceeding related thereto may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may
now or hereafter have to the laying of venue of any such dispute brought in such court or any
defense of inconvenient forum for the maintenance of such dispute. Each of the parties
-18-
hereto
agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(k) Descriptive Headings; Interpretation. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this Agreement. The use of the
word “including” in this Agreement shall be by way of example rather than by limitation. Each of
the parties hereto hereby consents to process being served by any party to this Agreement in any
suit, action or proceeding by delivery of a copy thereof in accordance with the provisions of
Section 11(f).
(l) No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
(m) Counterparts. This Agreement may be executed in multiple counterparts, any one of
which need not contain the signature of more than one party, but all such counterparts taken
together shall constitute one and the same agreement.
(n) Electronic Delivery. This Agreement, the agreements referred to herein, and each
other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent executed and delivered by
means of a photographic, photostatic, facsimile or similar reproduction of such signed writing
using a facsimile machine or electronic mail shall be treated in all manner and respects as an
original agreement or instrument and shall be considered to have the same binding legal effect as
if it were the original signed version thereof delivered in person. At the request of any party
hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute
original forms thereof and deliver them to all other parties. No party hereto or to any such
agreement or instrument shall raise the use of a facsimile machine or electronic mail to deliver a
signature or the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine or electronic mail as a defense to the
formation or enforceability of a contract and each such party forever waives any such defense.
(o) Further Assurances. In connection with this Agreement and the transactions
contemplated hereby, each party shall execute and deliver any additional documents and instruments
reasonably requested by any other party and perform any additional acts that may be reasonably
necessary or appropriate to effectuate and perform the provisions of this Agreement and the
transactions contemplated hereby.
*****
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
|
AVATAR HOLDINGS INC. |
||||
| By: | /s/ Xxxxxxxx Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx Xxxxxxxx | |||
| Title: | Executive Vice President | |||
| JEN I, L.P. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Managing Member | |||
| JEN RESIDENTIAL LP |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Managing Member | |||
