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EXHIBIT 4.03
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into
effective as of this 20th day of January, 1997, by and among Crescent Real
Estate Equities Trust, a Texas real estate investment trust (the "Company")
(successor in interest by merger to Crescent Real Estate Equities, Inc., a
Maryland corporation), Crescent Real Estate Equities Limited Partnership (the
"Operating Partnership"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇"), ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇").
WHEREAS, ▇▇▇▇ Sonoma, Ltd. ("▇▇▇▇") acquired limited partnership
interests (the "Partnership Interest") and Partnership Units ("Units") in the
Operating Partnership, all of which were offered and sold to ▇▇▇▇ pursuant to
one or more exemptions from registration under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to an offering by the Operating
Partnership of such Partnership Interest and Units to ▇▇▇▇;
WHEREAS, pursuant to the Operating Partnership Agreement (as defined
below) and the Contribution Agreement executed by and among Crescent Real
Estate Equities, Inc., Operating Partnership, Rahn, Roberts, and ▇▇▇▇▇▇▇▇, on
or before the date hereof, ▇▇▇▇ had certain rights (the "Exchange Rights") to
exchange its Partnership Interest and Units, in whole or in part, for an
aggregate number of common shares of beneficial interest of the Company, $0.01
par value per share (the "Common Shares"), equal to the aggregate number of
Units owned by ▇▇▇▇, on the terms and conditions specified in the Operating
Partnership Agreement and the Contribution Agreement, and pursuant to which the
Company has the option to deliver cash in lieu of Common Shares;
WHEREAS, the Partnership Interest and Units were transferred and
assigned by ▇▇▇▇ to the following persons: 276,111 Units to ▇▇▇▇▇▇▇▇, 276,110
Units to ▇▇▇▇▇▇▇, 52,149 Units to ▇▇▇▇▇ and 2,000 Units to ▇▇▇▇▇;
WHEREAS, each of Anderson, Roberts, ▇▇▇▇▇ and ▇▇▇▇▇ desires the same
Exchange Rights and registration rights enjoyed by ▇▇▇▇;
WHEREAS, the Company has agreed to provide Anderson, Roberts, ▇▇▇▇▇
and ▇▇▇▇▇ and certain of their assignees, as described herein, with the
registration rights set forth in Section 2 hereof;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as set forth herein.
1. Certain Definitions.
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As used in this Agreement, the following capitalized defined terms
shall have the following meanings.
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"Common Shares" shall have the meaning set forth above in the recitals
hereto and, in addition, shall include any equity securities of the Company or
any corporate successor of the Company into or for which Common Shares are
converted or exchanged.
"Company" shall have the meaning set forth above in the recitals
hereto.
"Exchange Rights" shall have the meaning set forth above in the
recitals hereto.
"Holders" shall mean (i) ▇▇▇▇▇▇▇▇ and any family members of ▇▇▇▇▇▇▇▇
(which, for purposes hereof, shall mean any spouse, child, or grandchild or, in
the case of a trust, the grantor or beneficial owner(s) thereof) to whom
▇▇▇▇▇▇▇▇ assigns all or a portion of his rights hereunder and who execute this
Agreement in connection with such assignment, (ii) ▇▇▇▇▇▇▇ and any family
members of ▇▇▇▇▇▇▇ (which, for purposes hereof, shall mean any spouse, child,
or grandchild or, in the case of a trust, the grantor or beneficial owner(s)
thereof) to whom ▇▇▇▇▇▇▇ assigns all or a portion of his rights hereunder and
who execute this Agreement in connection with such assignment, (iii) ▇▇▇▇▇ and
any family members of ▇▇▇▇▇ (which, for purposes hereof, shall mean any spouse,
child, or grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) to whom ▇▇▇▇▇ assigns all or a portion of his rights
hereunder and who execute this Agreement in connection with such assignment,
(iv) ▇▇▇▇▇ and any family members of ▇▇▇▇▇ (which, for purposes hereof, shall
mean any spouse, child, or grandchild or, in the case of a trust, the grantor
or beneficial owner(s) thereof) to whom ▇▇▇▇▇ assigns all or a portion of his
rights hereunder and who execute this Agreement in connection with such
assignment, (v) any Person who succeeds to all or a portion of the rights
hereunder of any Holder by will or intestate succession and who executes this
Agreement in connection therewith, and (vi) any Person to whom any Holder
assigns all or a portion of its rights hereunder as part of a charitable
donation and who executes this Agreement in connection therewith. No Person
shall be considered a Holder for purposes hereof unless and until such Person
shall have executed this Agreement, as the same may be amended in accordance
with the provisions hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Offering" shall mean the issuance of the Partnership Interest and
Units to ▇▇▇▇ on or about November 18, 1996.
"Operating Partnership" shall have the meaning set forth above in the
recitals hereto and also shall include the Operating Partnership's successors
and subsidiaries.
"Operating Partnership Agreement" shall mean the Second Amended and
Restated Agreement of Limited Partnership of the Operating Partnership, as
amended through and following the date hereof.
"Partnership Interests" shall have the meaning set forth above in the
recitals hereto.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government agency or political subdivision
thereof.
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"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and
by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean any Common Shares issued to the
Holders pursuant to the exercise of Exchange Rights by any of such Holders in
exchange for the Units received by the Holders on the date hereof but shall not
include any Common Shares issued to the Holders in exchange for the Units and
subsequently transferred to any Person other than (i) another Holder or (ii) a
Person who becomes a Holder pursuant hereto within ten days following any such
transfer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation: (i) all SEC, stock exchange or NASD registration and filing fees;
(ii) all fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws (including reasonable fees and disbursements of
counsel in connection with "blue sky" qualification of any of the Registrable
Shares and the preparation of a Blue Sky Memorandum) and compliance with the
rules of the NASD; (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement; (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Shares on any securities exchange or exchanges pursuant to Section 2(c) hereof,
and (v) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of any
"cold comfort" letters required by or incident to such performance and
compliance. Registration Expenses shall specifically exclude those items
specified in Section 4 as expenses to be paid by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act which
covers any of the Registrable Shares, and all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Units" shall have the meaning set forth above in the recitals hereto.
2. Registration of Shares. The provisions relating to a Holder's and the
Company's rights and obligations with regard to registration of Registrable
Shares are set forth in this Section 2.
(a) Prior to the last day of the thirteenth full month following
the month in which the closing of the Offering occurred, the Company shall
file, and shall use its best efforts to cause to become effective on, or as
soon as practicable following, the last day of such thirteenth
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month, a Registration Statement for all Registrable Shares. The Company shall
use its best efforts to maintain the effectiveness of such Registration
Statement until there are no longer any Registrable Shares held by any Holder.
Notwithstanding the foregoing, the Company shall not be
obligated, but shall have the right, to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2(a):
(i) in any particular jurisdiction in which either the
Company or the Operating Partnership would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance, unless the Company or Operating
Partnership is already subject to service of process in such
jurisdiction, and except as may be required by the Securities Act; or
(ii) if such Registration Statement cannot be filed on Form
S-3 or any successor form substantially similar to such Form.
b) Notice of Effectiveness. The Company shall notify each Holder
of the effectiveness of the Registration Statement and shall furnish to each
Holder such number of copies of the Registration Statement (including any
amendments, supplements and exhibits), the Prospectus contained therein
(including each preliminary prospectus and all related amendments and
supplements), and any documents incorporated by reference in the Registration
Statement or such other documents as the Holder may reasonably request in order
to facilitate its sale of the Registrable Shares in the manner described in the
Registration Statement.
(c) Amendments and Supplements to Registration Statement: Listing.
The Company shall prepare and file with the SEC from time to time such
amendments and supplements to the Registration Statement and prospectus used in
connection therewith as may be necessary to keep the Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all the Registrable Shares until such time as all of the
Registrable Shares have been disposed of in accordance with the intended
methods of disposition by the Holders as set forth in the Registration
Statement. Upon five business days' notice, the Company shall file any
supplement or post-effective amendment to the Registration Statement with
respect to the plan of distribution of such Holder's ownership interests in
Registrable Shares that is necessary to permit the sale of the Holder's
Registrable Shares pursuant to the Registration Statements, including
supplements or post-effective amendments required to give effect to the
designation of any underwriter or underwriting syndicate specified by such
Holder. The Company shall file any necessary listing applications or amendments
to the existing applications to cause the Registrable Shares registered under
any Registration Statement to be then listed or quoted on the primary exchange
or quotation system on which the Common Shares are then listed or quoted.
(d) SEC Requests. The Company shall notify each Holder of any
request by the SEC for amendments or supplements to the Registration Statement
or the Prospectus related thereto or for additional information. In addition,
the Company shall notify each Holder of the filing of the Registration
Statement or any Prospectus, amendment or supplement related thereto or any
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post-effective amendment to the Registration Statement and the effectiveness of
any post-effective amendment.
(e) Prospectus Delivery. At any time when a Prospectus relating to
the Registration Statement is required to be delivered under the Securities
Act, the Company shall immediately notify each Holder of the happening of any
event as a result of which (i) the Prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and (ii) an amendment to the Registration Statement
is a requirement (an "Event Notice"). In such event, the Company shall promptly
prepare and furnish to each Holder a reasonable number of copies of a
supplement to such Prospectus (or, after declaration of effectiveness by the
SEC, of any amendment to the Prospectus required to be filed as an amendment to
the Registration Statement) as may be necessary so that, as thereafter
delivered to the purchasers of Registrable Shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Company will, if necessary, amend the Registration Statement of which such
Prospectus is a part to reflect such amendment or supplement and use its best
efforts promptly to obtain an effectiveness order for such amendment from the
SEC. From and after the date of any Event Notice, no Holder shall offer or sell
any Registrable Shares until such time as the Company delivers any such
Prospectus supplement or amendment to the Holder.
3. State Securities Laws.
Subject to the conditions set forth in this Agreement, the Company
shall, in connection with the filing of any Registration Statement hereunder,
file such documents as may be necessary to register or qualify the Registrable
Shares under the securities or "Blue Sky" laws of such states as any Holder may
reasonably request, and the Company shall use its best efforts to cause such
filings to become effective; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws of
any such state in which it is not then qualified or to file any general consent
to service of process in any such state, provided that the Company shall file a
Uniform Consent to Service of Process on Form U-2 or its successor in any state
that requires such a filing in connection with the offering of the Registrable
Shares and in which the Holder proposes to offer Registrable Shares. Once
effective, the Company shall use its best efforts to keep such filings
effective until the earliest of (i) such time as the Registrable Shares have
been sold, or (ii) in the case of a particular state, a Holder has notified the
Company that it no longer requires an effective filing in such state in
accordance with its original request for filing. The Company shall promptly
notify each Holder of, and confirm in writing, the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Registrable Shares for sale under the securities or "Blue Sky" laws of any
jurisdiction or the initiation or threat of any proceeding for such purpose.
4. Expenses.
The Company shall bear all Registration Expenses incurred in
connection with the registration of the Registrable Shares pursuant to this
Agreement. Each Holder shall be
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responsible for any brokerage or underwriting commissions and taxes of any kind
(including, without limitation, transfer taxes) with respect to any
disposition, sale or transfer of Registrable Shares sold by such Holder.
5. Cooperation.
Each Holder hereby agrees (i) to cooperate with the Company and to
furnish to the Company in a timely manner all information that the Company may
reasonably request in connection with the preparation of the Registration
Statement and any filings with any state securities commissions, including
information concerning such Holder's plan of distribution and ownership
interests with respect to its Registrable Shares or any other securities of the
Company or any of its affiliates and (ii) to deliver or cause delivery of the
Prospectus contained in the Registration Statement to any purchaser of the
shares covered by the Registration Statement from the Holder except to the
extent provided to the contrary in Section 2(e) above.
6. Suspension of Registration Requirement.
(a) The Company shall promptly notify each Holder of the issuance
by the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. Each Holder
agrees not to effect any sales from the date of such notice until the Company
obtains the withdrawal of any such order suspending the effectiveness of the
Registration Statement. The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement and shall promptly notify each Holder of any such withdrawal.
(b) Each holder of Registrable Shares whose Registrable Shares are
covered by a Registration Statement filed pursuant to Section 2 hereof agrees,
if requested by the Company in the case of a Company-initiated non-underwritten
offering or if requested by the managing underwriter or underwriters in a
Company-initiated underwritten offering, not to effect any public sale or
distribution of any of the securities of the Company of any class included in
such Registration Statement (or any security the value of which is determined
with reference to the value of such securities), including a sale pursuant to
Rule 144A or Rule 144 under the Securities Act (except as part of such
Company-initiated registration), during the 15 day period prior to, and during
the 90-day period beginning on the date of effectiveness of each such
Registration Statement; provided, however, that such 90-day period shall be
extended by the number of days from (and including) the date of any notice
pursuant to Section 2(d) or (e) hereof to (and including) the date when each
seller of Registrable Shares covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 2(e) hereof.
7. Additional Shares.
The Company, at its option, may register, under any registration
statement and any filings with any state securities commissions filed pursuant
to this Agreement, any number of shares of unissued Common Shares or other
securities of the Company or any Common Shares or other securities of the
Company owned by any other shareholder or shareholders of the Company.
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8. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder within the meaning of Section 15 of the Securities Act of 1933 as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto) pursuant to
which the Registrable Shares were registered or offered under the
Securities Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto), including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, in each case whether or not a party,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that the indemnity provided pursuant to this Section 8 shall
not apply to any Holder with respect to any loss, liability, claim, damage or
expense, which arises in whole or in part, out of (x) any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) or (y) such Holder's
failure to deliver an amended or supplemental Prospectus if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
(b) Indemnification by Holders. Each Holder severally agrees to
indemnify and hold harmless the Company and the other selling Holders, and each
of their respective directors and officers (including each director and officer
of the Company who signed the Registration Statement), and each person, if any,
who controls the Company or the other selling Holders
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within the meaning of Section 15 of the Securities Act, to the same extent as
the indemnity contained in Section (a) hereof (except that any settlement
described in Section 8(a)(ii) shall be effected with the written consent of
such Holder), for any such loss, claim, damage or expense that arises out of or
is based upon, in whole or in part, (x) any untrue statements or omissions made
in the Registration Statement (or any amendment thereto) or any Prospectus (or
any Registration Statement (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by
such Holder and used in such Registration Statement (or any amendment thereto)
or such Prospectus (or any amendment or supplement thereto) or (y) such
Holder's failure to deliver an amended or supplemental Prospectus if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
(c) Conduct of Indemnification Proceedings. The indemnified party
shall give reasonably prompt notice to the indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure so to notify the indemnifying party (i) shall not
relieve it from any liability which it may have under the indemnity agreement
provided in paragraphs (a) or (b) of this Section 8, unless and to the extent
it did not otherwise learn of such action and the lack of notice by the
indemnified party results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to the indemnified party other than the
indemnification obligation provided under paragraphs (a) or (b) of this Section
8. If the indemnifying party so elects within a reasonable time after receipt
of such notice, the indemnifying party may assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by the
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that, if the indemnified party
reasonably determines that a conflict of interest exists and that it is
necessary that the indemnified party be represented by separate counsel or
that, upon advice of counsel, there may be legal defenses available to it which
are different from or in addition to those available to the indemnifying party,
then the indemnifying party shall not be entitled to assume such defense, and
the indemnified party shall be entitled to separate counsel at the indemnifying
party's expense. If the indemnifying party is not entitled to assume the
defense of such action or proceeding as a result of the provisions of the
preceding sentence, the indemnifying party's counsel shall be entitled to
conduct the indemnifying party's defense and counsel for the indemnified party
shall be entitled to conduct the defense of the indemnified party, it being
understood that both such counsel will cooperate with each other to conduct the
defense of such action or proceeding as efficiently as possible. If the
indemnifying party is not so entitled to assume the defense of such action or
does not assume such defense, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party. In such
event, however, the indemnifying party will not be liable for any settlement
effected without the written consent of the indemnifying party, with such
consent not to be unreasonably withheld. If an indemnifying party is entitled
to assume, and assumes, the defense of such action or proceeding in accordance
with this paragraph, the indemnifying party shall not be liable for any fees
and expenses of counsel for the indemnified party incurred thereafter in
connection with such action or proceeding, subject to the proviso set forth in
the second sentence of this paragraph (c).
9. Contribution.
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In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 is for
any reason held to be unenforceable although applicable in accordance with its
terms, the Company and each Holder shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company and each such Holder, in such
proportion as is appropriate to reflect the relative fault of and benefits to
the Company on the one hand and such Holder on the other, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits to the indemnifying party and indemnified
party shall be determined by reference to, among other things, the total
proceeds received by the indemnifying party and the indemnified party in
connection with the offering to which such losses, claims, damages, liabilities
or expenses relate. The relative fault of the indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to, information supplied by, the
indemnifying party or the indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 9, each Holder shall be required
to contribute the amount of any damages which such Holder is required to pay by
reason of such untrue statement or omission.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person, if
any, who controls a Holder within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each
director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
10. No Obligation to Issue Common Shares to Holders: No Other Obligation
to Register.
(a) No Obligation to Issue Common Shares. The Holders hereby
acknowledge that, upon any exercise of their Exchange Rights, the Company has
the option pursuant to the Operating Partnership Agreement, in its sole
discretion, to deliver either cash or Common Shares in exchange for the Units
as to which a Holder submitted for exchange.
(b) No Other Obligation to Register Shares. Except as otherwise
expressly provided in this Agreement, the Company shall have no obligation to a
Holder to register the Registrable Shares under the Securities Act.
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11. Holder Representations, Warranties and Agreements.
Each Holder, jointly and not severally, and solely on behalf of
itself, represents and warrants to, and agrees with, the Company, that:
(a) Such Holder, if not a natural person, is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization. Such Holder has all requisite power and authority to execute,
deliver and perform this Agreement. All necessary proceedings of such Holder,
if not a natural person, have been duly taken to authorize the execution,
delivery, and performance of this Agreement by such Holder. This Agreement has
been duly executed and delivered by such Holder, and is the legal, valid and
binding obligation of such Holder, and is enforceable as to such Holder in
accordance with its terms. No consent, authorization, approval, order, license,
certificate or permit of or from, or declaration or filing with, any federal,
state, local or other governmental authority or any court or other tribunal is
required by such Holder for the execution, delivery or performance of this
Agreement (except filings under the Securities Act which will be made and such
consents consisting only of consents under Blue Sky or state securities laws
which will be obtained) by such Holder. No consent of any party to any
contract, agreement, instrument, lease, license, arrangement or understanding
to which such Holder is a party, or to which any of such Holder's properties or
assets are subject, is required for the execution, delivery and performance of
this Agreement which has not been obtained, and the execution, delivery and
performance of this Agreement will not violate, result in a breach of, conflict
with or (with or without giving of notice or the passage of time or both)
entitle any party to terminate or call a default under any such contract,
agreement, instrument, lease, license, arrangement or understanding, or, if
such Holder is not a natural person, violate or result in a breach of, or
conflict with, any law, rule, regulation, order, judgment or decree binding on
such Holder or to which any of such Holder's operations, business, properties
or assets are subject, which, in any of such events, would prohibit, impair or
restrict the ability of such Holder to execute and deliver this Agreement,
perform in accordance with the terms hereof or consummate the transactions
contemplated hereby, or would adversely affect the rights or benefits, or both,
hereunder of any other party hereto.
(b) Neither such Holder nor any of such Holder's affiliates (as
defined in the regulations under the Securities Act), will take, directly or
indirectly, during the term of this Agreement, any action designed to stabilize
(except as may be permitted by applicable law) or manipulate the price of any
security of the Company.
(c) Such Holder shall promptly furnish to the Company any and all
information as may be required by, or as may be necessary or advisable to
comply with the provisions of, the Securities Act, the Exchange Act, and the
rules and regulation of the SEC thereunder in connection with the preparation
and filing of any Registration Statement pursuant hereto, or any amendment or
supplement thereto, or any Preliminary Prospectus or Prospectus included
therein. All information to be furnished to the Company by or on behalf of such
Holder expressly for use in connection with the preparation of any Preliminary
Prospectus, the Prospectus, the Registration Statement, or any amendment or
supplement thereto, will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
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11
12. Underwritten Registration.
--------------------------
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (i) executes and
delivers the underwriting agreement or similar documents relating thereto
pursuant to which such Holder shall agree to sell, upon the terms and subject
to the conditions therein set forth, such Holder's Registrable Securities on
the basis provided therein, and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, custodial or escrow agreements and such other
documents as may be necessary, advisable or required pursuant to the terms
thereof or as may be from time to time reasonably requested by the underwriter
or underwriters named therein, the Company, or their respective legal counsel,
in connection therewith.
In the event of any conflict between the indemnification and
contribution terms as herein set forth and as set forth in any underwriting
agreement entered pursuant hereto, the underwriting agreement shall control.
13. Survival of Representations and Agreements.
-------------------------------------------
All representations, warranties, covenants and agreements contained in
this Agreement shall be deemed to be representations, warranties, covenants and
agreements at the effective date of each Registration Statement contemplated by
this Agreement, and such representations, warranties, covenants and agreements,
including the indemnity and contribution agreements contained in Sections 8 and
9 hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Holder or any Person
which is entitled to be indemnified under Section 8 hereof, and shall survive
termination of this Agreement.
14. Amendments and Waivers.
-----------------------
The provisions of this Agreement may not be amended, modified,
supplemented or waived without the prior written consent of the Company and the
Holders of Registrable Shares.
15. Notices.
--------
Except as set forth below, all notices and other communications
provided for or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally or sent by telex or telecopier,
registered or certified mail (return receipt requested), postage prepaid, or
courier or overnight delivery service to the respective parties at the
following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 2(c), a
Holder must confirm such notice in writing by overnight express delivery with
confirmation of receipt:
-11-
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If to the Company: Crescent Real Estate Equities, Inc.
c/o Crescent Real Estate Equities Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Crescent Real Estate Equities, Inc.
c/o Crescent Real Estate Equities Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President-Law
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Meadows, Owens, Collier, Reed, Cousins & Blau,
L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇▇: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
If to ▇▇▇▇▇: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-12-
13
In addition to the manner of notice permitted above, notices given pursuant to
Sections 2 and 6 hereof may be effected telephonically and confirmed in writing
thereafter in the manner described above.
16. Successors and Assigns.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto. This Agreement may not be assigned by any Holder, except for an
assignment (i) by ▇▇▇▇▇▇▇▇ of all or any portion of his rights hereunder to one
or more family members (which, for purposes hereof, shall mean any spouse,
child or grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) who execute this Agreement in connection with such
assignment, (ii) by ▇▇▇▇▇▇▇ of all or any portion of his rights hereunder to
one or more family members (which, for purposes hereof, shall mean any spouse,
child, grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) who execute this Agreement in connection with such
assignment, (iii) by ▇▇▇▇▇ of all or any portion of his rights hereunder to one
or more family members (which, for purposes hereof, shall mean any spouse,
child or grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) who execute this Agreement in connection with such
assignment, (iv) by ▇▇▇▇▇ of all or any portion of his rights hereunder to one
or more family members (which, for purposes hereof, shall mean any spouse,
child or grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) who execute this Agreement in connection with such
assignment, (v) by any Holder of all or any portion of its rights hereunder to
any Person by will or intestate succession and who executes this Agreement in
connection therewith, (vi) by any Holder of all or any portion of its rights
hereunder to any other person who is a Holder as of the date immediately
preceding the effective date of any such assignment, and (vii) by any Holder of
all or any portion of its rights hereunder to any person as part of a
charitable donation and who executes this Agreement in connection therewith.
Any attempted assignment hereof by any Holder to any Person other than pursuant
to this Section 16 will be void and of no effect and shall terminate all
obligations of the Company hereunder with respect to such Holder. No Person
shall be considered a Holder for purposes hereof unless and until such Person
shall have executed this Agreement, as the same may be amended in accordance
with the provisions hereof.
17. Counterparts.
This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
18. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and to be
performed wholly within said State.
19. Severability.
-13-
14
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired thereby,
it being intended that all of the rights and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
20. Entire Agreement.
----------------
This Agreement is intended by the parties as a final expression of
their agreement and intended to be the complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
such subject matter. This Agreement supersedes all prior agreements and
understandings (except the Operating Partnership Agreement, which is
incorporated by reference herein and hereby made a part of this Agreement)
between the parties with respect to such subject matter.
21. No Shareholder Liability.
------------------------
No shareholder or other equity owner of the Company assumes any
personal liability for the obligations listed herein or for the Company's
performance of such obligations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CRESCENT REAL ESTATE EQUITIES TRUST,
successor in interest by merger to
Crescent Real Estate Equities, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: President & Chief Executive Officer
----------------------------------------
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
BY: CRESCENT REAL ESTATE EQUITIES, LTD.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: President & Chief Executive Officer
----------------------------------------
-14-
15
"▇▇▇▇▇▇▇▇" OR "HOLDER"
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
"▇▇▇▇▇▇▇" OR "HOLDER"
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
"▇▇▇▇▇" OR "HOLDER"
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
"▇▇▇▇▇" OR "HOLDER"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-15-
16
The undersigned hereby acknowledges the
termination of the Registration Rights Agreement
dated November 18, 1996, among Crescent Real
Estate Equities, Inc., the Operating Partnership
and ▇▇▇▇
▇▇▇▇ SONOMA, LTD.
BY: ▇▇▇▇ HOTELS, LTD., a Florida limited
partnership, its General Partner
By: ▇▇▇▇ HOTELS, INC., a Florida corporation,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: President
----------------------------------
-16-
