Exhibit 10.24
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as
of February 7, 2003 by and between Capital Trust, Inc., a Maryland corporation
(the "Company"), and Stichting Pensioenfonds ABP, a foundation pursuant to the
laws of the Netherlands ("ABP"), or any Affiliate of ABP who may hereafter
execute and agree to be bound by this Agreement and be named as a Holder on
Schedule A attached hereto (which schedule shall be amended from time to time to
reflect such agreement of such Person).
Recitals
WHEREAS, the Board of Directors of the Company has previously
determined that it was advisable and in the best interest of the Company and its
stockholders for the Company to elect to operate and be taxed as a real estate
investment trust ("REIT") under federal income tax laws, and has authorized the
officers of the Company to take all actions necessary and appropriate to effect
the same;
WHEREAS, in order for the Company to qualify to be taxed as a
REIT, 50% of the common stock, par value $0.01 per share ("Common Stock"), of
the Company can not be owned, directly or indirectly, by five or fewer natural
individuals;
WHEREAS, ABP has agreed to purchase from JRK Investment
Partnership LP ("JRK"), CMH Investment Partnership LP ("CMH") and Veqtor Finance
Company, LLC ("Veqtor"), an aggregate of 1,500,000 shares of Common Stock
pursuant to that certain stock purchase agreement, dated as of the date hereof,
by and among JRK, CMH, Veqtor and ABP (the "Stock Purchase Agreement"), which
purchase will facilitate the Company's compliance with the foregoing
concentrated ownership restriction;
WHEREAS, the Company has agreed to grant to the Holders the
registration rights set forth in Section 2 hereof which is a condition to the
foregoing purchase by ABP of the Common Stock.
NOW, THEREFORE, the parties hereto, in consideration of the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Advice" has the meaning set forth in Section 3(b) hereof.
"Affiliate" means, with respect to any Person, any other Person
that directly or indirectly controls or is controlled by or is under common
control with such Person. For the purposes of this definition, "control", when
used with respect to any Person, means possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of the
such Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms of "affiliated", "controlling" and "controlled" have
meanings correlative to the foregoing.
"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in New York, New York are permitted or
required by any applicable law to close.
"Closing Date" means the date of closing on the purchase and
sale of Common Stock pursuant to the Stock Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the Recitals.
"Company" has the meaning set forth in the Preamble and also
includes the Company's successors.
"Delay Notice" has the meaning set forth in Section 2(c) hereof.
"Delay Period" has the meaning set forth in Section 2(c) hereof.
"Effectiveness Period" has the meaning set forth in Section 2(b)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Holder" or "Holders" means ABP or, any Affiliate of the
foregoing Person who agrees to be bound by this Agreement and named as a Holder
on Schedule A hereto in accordance with the introductory paragraph of this
Agreement, or any Person who has acquired Registrable Securities by Transfer,
operation of law or otherwise, if such Person is an owner of record of
Registrable Securities, or of a security convertible into or exercisable or
exchangeable for Registrable Securities, whether or not such conversion,
exercise or exchange has actually been effected and disregarding any legal
restrictions upon the exercise of such rights. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities.
"Inspectors" has the meaning set forth in Section 3(a)(xii)
hereof.
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"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means an individual, partnership, corporation, limited
liability company, trust, estate, or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including post-effective
amendments, and, in each case, including all documents incorporated by reference
therein.
"Registrable Securities" means (i) the shares of Common Stock
purchased pursuant to the Stock Purchase Agreement and such other shares of
Common Stock acquired by ABP prior to or after the date hereof that when added
to the foregoing shares do not exceed fifteen percent of the shares of Common
Stock outstanding on the date of filing of the Shelf Registration Statement
pursuant to Section 2(a) (subject to adjustment as appropriate to reflect any of
the events described in clauses (ii) and (iii) below); (ii) any shares of Common
Stock or other securities issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange by the Company generally for, or in
replacement by the Company generally of, such shares of Common Stock; and (iii)
any securities issued in exchange for such shares of Common Stock in any merger,
combination or reorganization of the Company; provided, however, that
Registrable Securities shall not include any securities which have theretofore
been registered and sold by a Holder pursuant to the Securities Act or which
have been sold by a Holder to the public pursuant to Rule 144 or any similar
rules promulgated by the Commission pursuant to the Securities Act, and,
provided further, that the Company shall have no obligation under Section 2 to
register any Registrable Securities of a Holder or keep any Shelf Registration
Statement effective if the Company shall deliver to the Holders requesting such
registration an opinion of counsel reasonably satisfactory to such Holders and
their counsel to the effect that the proposed sale or disposition of all of the
Registrable Securities does not require registration under the Securities Act
for a sale or disposition in a single public sale, and if the Company shall
offer to remove any and all legends restricting transfer from the certificates
evidencing such Registrable Securities. For purposes of this Agreement, a Person
will be deemed to be a Holder of Registrable Securities whenever such Person has
the then-existing right to acquire such Registrable Securities (by conversion,
purchase or otherwise), whether or not such acquisition has actually been
effected.
"Rule 144" and "Rule 145" mean Rule 144 and Rule 145 promulgated
under the Securities Act.
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"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected pursuant
to Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2 hereof which
covers all of the Registrable Securities, on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the
Commission, 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 documents incorporated by
reference therein.
"Stock Purchase Agreement" has the meaning set forth in the
Recitals.
"Transfer" means and includes the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security or any transfer upon any merger or consolidation) (and correlative
words shall have correlative meanings); provided however, that any transfer or
other disposition upon foreclosure or other exercise of remedies of a secured
creditor after an event of default under or with respect to a pledge,
hypothecation or other transfer as security shall constitute a Transfer.
"Violation" has the meaning set forth in Section 5(a)(i).
Section 2. Registration under the Securities Act.
(a) Registration Requirement. The Company shall use best efforts
to file with the Commission a Shelf Registration Statement meeting the
requirements of the Securities Act within 30 days following the Closing Date,
and shall use reasonable best efforts to cause such Shelf Registration Statement
to be declared effective by the Commission within 120 days after the filing of
any such Shelf Registration Statement, provided however, the Company shall not
be required to file a Shelf Registration Statement or cause it to be declared
effective during any Delay Period. No Holder of Registrable Securities shall be
entitled to include any of its Registrable Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder and
furnishes to the Company in writing, within 10 Business Days after receipt of a
request therefor, such information as the Company may, after conferring with
counsel with regard to information relating to Holders that would be required by
the Commission to be included in such Shelf Registration Statement or Prospectus
included therein, reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish to the Company all information
with respect to such Holder necessary to make
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the information previously furnished to the Company by such Holder not
materially misleading.
(b) Effectiveness Requirement. The Company agrees to use its
reasonable best efforts to keep each Shelf Registration Statement continuously
effective and the Prospectus usable for resales for a period commencing on the
date that such Shelf Registration Statement is initially declared effective by
the SEC and terminating on the date when all of the Registrable Securities
covered by such Shelf Registration Statement have been sold pursuant to such
Shelf Registration Statement or cease to be Registrable Securities (the
"Effectiveness Period"); provided, however, the Company shall be permitted to
suspend sales of Securities during any Delay Period.
(c) Delay Period. The term "Delay Period" shall mean, with
respect to any obligation to file a Shelf Registration Statements or to keep any
Prospectus usable for resales pursuant to this Section 2, the shortest period of
time determined in good faith by the Company to be necessary for such purpose
when there exist circumstances relating to a material pending development,
including but not limited to a pending or contemplated material acquisition or
merger or other material transaction or similar event, which would require
disclosure by the Company in such Shelf Registration Statement or Prospectus of
material information which the Company determines in good faith that it has a
bona fide business purpose for keeping confidential and non-public and the
non-disclosure of which in such Shelf Registration Statement or Prospectus might
cause such Shelf Registration Statement or Prospectus to fail to comply with
applicable disclosure requirements. A Delay Period shall commence on and include
the date that the Company gives written notice (a "Delay Notice") to the Holders
that it is not required to file any Shelf Registration Statement or cause it to
be declared effective or the Prospectus is no longer usable as a result of a
material pending development pursuant to Section 2(b) hereof and shall end on
the date when the Holders are advised in writing by the Company that the current
Delay Period has terminated (it being understood that the Company shall give
such notice to all Holders promptly upon making the determination that the Delay
Period has ended); provided, however, that the Company shall not be entitled to
Delay Periods having durations that exceed ninety (90) days in the aggregate
during any calendar year. The Company covenants and agrees that it shall not
deliver a Delay Notice with respect to a Delay Period unless Company employees,
officers and directors and their Affiliates and any other holders of
registration rights with respect to the Company's Common Stock are also
prohibited by the Company for the duration of such Delay Period from effecting
any public sales of shares of Common Stock beneficially owned by them. The
Company represents that it has no knowledge of any circumstance that would
reasonably be expected at the time of the Shelf Registration Statement pursuant
to Section 2(a) to cause the Company to exercise its rights under this Section
2(c).
(d) Notice. Each Holder agrees that it shall give the Company
notice of not less than one (1) Business Day prior to disposing of any
Registrable Securities
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under a Shelf Registration Statement so that the Company may make any
determination to suspend sales of Securities as contemplated in Section 2(b)
hereof. The Company will, in the event a Shelf Registration Statement is
declared effective, provide to each Holder a reasonable number of copies of the
Prospectus which is a part of such Shelf Registration Statement, notify each
such Holder when such Shelf Registration Statement has become effective and take
such other actions as are required to permit unrestricted resales of the
Registrable Securities. The Company further agrees to supplement or amend each
Shelf Registration Statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Securities copies of any such supplement
or amendment promptly after its being used or filed with the Commission.
(e) Effective Shelf Registration Statement. A Shelf Registration
Statement will not be deemed to have become effective unless it has been
declared effective by the Commission; provided, however, that if, after it has
been declared effective, the offering of Registrable Securities pursuant to such
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the Commission or any other governmental agency or
court, such Shelf Registration Statement will be deemed not to have been
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Shelf Registration Statement may legally
resume. The Company will be deemed not to have used its reasonable best efforts
to cause a Shelf Registration Statement to become, or to remain, effective
during the requisite period if it voluntarily takes any action or omits to take
any action that would result in any such Shelf Registration Statement not being
declared effective or that would result in the Holders of Registrable Securities
covered thereby not being able to offer and sell such Registrable Securities
during that period, unless such action or omission is required by applicable
law.
(f) Eligibility. As of the Closing Date, the Company will be
eligible to file a Shelf Registration Statement with respect to the Registrable
Securities.
Section 3. Registration Procedures.
(a) Obligations of the Company. In connection with its
obligations under Section 2 hereof with respect to the Shelf Registration
Statement, the Company shall, as expeditiously as practicable:
(i) prepare and file with the Commission a Shelf
Registration Statement as prescribed by Section 2(a) within the
relevant time period specified in Section 2(a) hereof on the
appropriate form under the Securities Act, which form shall (i)
be selected by the Company, (ii) be available for the sale of
the Registrable Securities by the selling Holders thereof, and
(iii) comply as to form in all material respects with the
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requirements of the applicable form and include all financial
statements required by the Commission to be filed therewith; the
Company shall use its reasonable best efforts to cause such
Shelf Registration Statement to become effective and remain
effective and the Prospectus usable for resales in accordance
with Section 2 hereof, subject to the proviso contained in
Section 2(b) hereof; provided, however, that, before filing any
Shelf Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the
Holders of the Registrable Securities covered by such Shelf
Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies
of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto)
proposed to be filed; and the Company shall not file any Shelf
Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such
document, other than filings required under the Exchange Act, if
the Holders, their counsel or the managing underwriters of an
underwritten offering of Registrable Securities, if any, shall
reasonably object in a timely manner;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to such Shelf
Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the Effectiveness Period,
subject to the proviso contained in Section 2(b) hereof or as
reasonably requested by the Holders of a majority of Registrable
Securities, and cause each Prospectus to be supplemented, if so
determined by the Company or requested by the Commission, by any
required prospectus supplement and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in
force), under the Securities Act, respond within a reasonable
time to any comments received from the Commission with respect
to such Shelf Registration Statement, or any amendment,
post-effective amendment or supplement relating thereto, and
comply with the provisions of the Securities Act, the Exchange
Act and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all
Registrable Securities covered by such Shelf Registration
Statement during the Effectiveness Period in accordance with the
intended method or methods of distribution by the selling
Holders thereof described in this Agreement;
(iii) register or qualify the Registrable Securities
under all applicable state securities or "Blue Sky" laws of such
jurisdictions by the time the applicable Shelf Registration
Statement is declared effective by the Commission as any Holder
of Registrable Securities covered by such Shelf Registration
Statement and each underwriter of an underwritten
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offering of Registrable Securities shall reasonably request in
writing in advance of such date of effectiveness, and do any and
all other acts and things which may be reasonably necessary or
advisable to enable such Holder and underwriter to consummate
the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the
Company shall not be required to (A) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 3(a)(iii) hereof, (B) file any general consent to
service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (C) subject
itself to taxation in any such jurisdiction if it is not then so
subject;
(iv) promptly notify each Holder of Registrable
Securities, its counsel and the managing underwriters of an
underwritten offering of Registrable Securities, if any, and
promptly confirm such notice in writing (A) when the Shelf
Registration Statement covering such Registrable Securities has
become effective and when any post-effective amendments thereto
become effective, (B) of any request by the Commission or any
state securities authority for amendments and supplements to
such Shelf Registration Statement or Prospectus or for
additional information after such Shelf Registration Statement
has become effective, (C) of the issuance or threatened issuance
by the Commission or any state securities authority of any stop
order suspending the effectiveness of such Shelf Registration
Statement or the qualification of the Registrable Securities in
any jurisdiction described in Section 3(a)(iii) hereof or the
initiation of any proceedings for that purpose, (D) if, between
the effective date of such Shelf Registration Statement and the
closing of any sale of Registrable Securities covered thereby,
the representations and warranties of the Company contained in
any purchase agreement, securities sales agreement or other
similar agreement cease to be true and correct in all material
respects, (E) of the happening of any event or the failure of
any event to occur or the discovery of any facts, during the
Effectiveness Period, which makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue in
any material respect or which causes such Shelf Registration
Statement or Prospectus to omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
and (F) of the reasonable determination of the Company that a
post-effective amendment to such Shelf Registration Statement
would be appropriate;
(v) take reasonable efforts to prevent the entry of any
stop order suspending the effectiveness of any Shelf
Registration Statement, or
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if entered, to obtain the withdrawal of any such stop order at
the earliest possible moment;
(vi) furnish to each Holder of Registrable Securities
included within the coverage of a Shelf Registration Statement,
without charge, a reasonable number of conformed copies of the
Shelf Registration Statement relating to such Shelf Registration
and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless
requested) as such Holder or managing underwriters, if any, may
reasonably request;
(vii) deliver to each selling Holding of Registrable
Securities and each managing underwriter participating in any
such disposition of Registrable Securities, if any, without
charge, as many copies of the applicable Prospectus (including
each preliminary Prospectus) as such Holder or managing
underwriter may reasonably request (it being understood that the
Company consents to the use of the Prospectus by each of the
selling Holders of Registrable Securities and the underwriter or
underwriters, if any, in connection with the offering and sale
of the Registrable Securities covered by the Prospectus), such
other documents incorporated by reference therein and any
exhibits thereto as such selling Holder or managing underwriter
may reasonably request in order to facilitate the disposition of
the Registrable Securities by such Holder or underwriter;
(viii) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and registered in such names
as the selling Holders or any underwriters may reasonably
request at least two Business Days prior to the closing of any
sale of Registrable Securities pursuant to the Shelf
Registration Statement relating thereto;
(ix) as soon as practicable after the resolution of any
matter or event specified in Sections 3(a)(iv)(B), 3(a)(iv)(C),
3(a)(iv)(E) (subject to the proviso contained in Section 2(b)
hereof) and 3(a)(iv)(F) hereof), prepare a supplement or
post-effective amendment to the applicable Shelf Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not include any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
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(x) a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Shelf
Registration Statement or a Prospectus after the initial filing
of such Shelf Registration Statement, provide a reasonable
number of copies of such document to the Holders and managing
underwriters, if any, and make such of the representatives of
the Company as shall be reasonably requested by the Holders of
Registrable Securities available for discussion of such
document;
(xi) if requested by the Holders of Registrable
Securities in connection with a firm commitment underwritten
offering of at least $1 million of Registrable Securities: (i)
(A) enter into such agreements (including underwriting
agreements) as are customary in underwritten offerings, (B) make
such representations and warranties in such agreements to the
underwriters (if any), with respect to the business of the
Company and its subsidiaries as then conducted and with respect
to the applicable Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings (all of the
representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such
underwriters included in each such agreement shall also be made
to and for the benefit of such Holders and any or all of the
conditions precedent to the obligations of such underwriters
under such agreements shall be conditions precedent to the
obligations of such Holders), and confirm the same if and when
requested and (C) include in such agreements such terms and
conditions as are generally prevailing in agreements of that
type, including, without limitation, indemnities no less
favorable to the recipient thereof than those provided in
Section 5 hereof; (ii) obtain opinions of counsel to the Company
and updates thereof (which may be in the form of a reliance
letter) in form and substance reasonably satisfactory to the
managing underwriters covering the matters customarily covered
in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such underwriters (it
being agreed that the matters to be covered by such opinion may
be subject to customary qualifications and exceptions); (iii)
obtain "cold comfort" accountants' letters and updates thereof
in form and substance reasonably satisfactory to the managing
underwriters from the independent certified public accountants
of the Company (and, if necessary, any other independent
certified public accountants of any business acquired by the
Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as
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reasonably requested by such underwriters in accordance with
Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures customary for such
agreements;
(xii) if requested by Holders of Registrable Securities
in connection with a firm underwritten commitment offering of at
least $1 million of Registrable Securities, make reasonably
available for inspection by any selling Holder of Registrable
Securities who certifies to the Company that it has a current
intention to sell Registrable Securities pursuant to the Shelf
Registration, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or
underwriter (collectively, the "Inspectors"), at the offices
where normally kept, during the Company's normal business hours,
all financial and other records, and pertinent organizational
and operational documents of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, trustees and employees
of the Company and its subsidiaries to supply all relevant
information in each case reasonably requested by any such
Inspector in connection with such Shelf Registration Statement,
records and information which the Company, in good faith,
determines to be confidential and any Records and information
which it notifies the Inspectors are confidential shall not be
disclosed to any Inspector except where (i) the disclosure of
such Records or information is necessary to avoid or correct a
material misstatement or omission in the applicable Shelf
Registration Statement, (ii) the release of such Records or
information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or is necessary in
connection with any action, suit or proceeding, or (iii) such
Records or information previously have been made generally
available to the public; each selling Holder of such Registrable
Securities will be required to agree in writing that Records and
information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis
for any market transactions in the securities of the Company
unless and until such is made generally available to the public
through no fault of an Inspector or a selling Holder; and each
selling Holder of such Registrable Securities will be required
to further agree in writing that it will, upon learning that
disclosure of such Records or information is sought in a court
of competent jurisdiction, or in connection with any action,
suit or proceeding, give notice to the Company and allow the
Company at its expense to undertake appropriate action to
prevent disclosure of the Records and information deemed
confidential;
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(xiii) comply with all applicable rules and regulations
of the Commission so long as any provision of this Agreement
shall be applicable and make generally available to its
securityholders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any twelve-month period (or 90
days after the end of any twelve-month period if such period is
a fiscal year) or, in each case, such shorter period as may be
required for the filing of reports containing quarterly and
annual financial statements pursuant to the rules and
regulations adopted under the Securities Act from time to time
(i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company after the
effective date of a Shelf Registration Statement, which
statements shall cover said twelve-month periods, provided that
the obligations under this Section 3(l) shall be satisfied by
the timely filing of quarterly and annual reports on Forms 10-Q
and 10-K under the Exchange Act;
(xiv) cooperate with each seller of Registrable
Securities covered by a Shelf Registration Statement and each
underwriter, if any, participating in the disposition of such
Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(xv) take all other steps necessary to effect the
registration of the Registrable Securities covered by a Shelf
Registration Statement contemplated hereby; and
(xvi) notwithstanding any other provision of this
Section 3, if the Company becomes ineligible to use the
registration form on which the Shelf Registration Statement is
filed and declared effective pursuant to Section 2(a), thereby
precluding any Holder from using the related Prospectus, the
Company shall use best efforts to prepare and file either a post
effective amendment to the Shelf Registration Statement to
convert such registration statement to, or a new Shelf
Registration Statement on, another registration form which the
Company is eligible to use within 30 days after the date that
the Company becomes ineligible, provided such other registration
form shall be available for the sale of the Registrable
Securities by the selling Holders thereof and such amended or
new Shelf Registration Statement shall remain subject in all
respects to the provisions of this Section 3.
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(b) Holders' Obligations.
(i) Each Holder agrees that, upon receipt of any notice
from the Company of the occurrence of any event specified in
Sections 3(a)(iv)(B), 3(a)(iv)(C), 3(a)(iv)(E), 3(a)(iv)(F)
hereof or any Delay Notice, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to
the Shelf Registration Statement at issue until such Holder's
receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(a)(viii) hereof or until it is advised
in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the
Company, such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession, other
than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
(ii) Each Holder agrees that the Company may require
each seller of Registrable Securities as to which any
registration is being effected to furnish to it such information
regarding such seller as may be required by the staff of the
Commission to be included in the applicable Shelf Registration
Statement, the Company may exclude from such registration the
Registrable Securities of any seller who fails to furnish such
information within 10 Business Days after receiving such
request, and the Company shall have no obligation to register
under the Securities Act the Registrable Securities of a seller
who so fails to furnish such information.
Section 4. Expenses of Registration. The Company shall bear and
pay all expenses incurred in connection with any registration, filing, or
qualification of Registrable Securities with respect to a Shelf Registration
Statement for each selling Holder, including all registration, exchange listing,
accounting, filing and NASD fees, all fees and expenses of complying with
securities or Blue Sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the reasonable fees and disbursements
of counsel for the Company, and of the Company's independent public accountants,
including the expenses of "comfort letters" required by or incident to such
performance and compliance and reasonable fees and disbursements of one firm of
counsel and one firm of accountants for ABP. Holders shall be responsible for
any underwriting discounts and commissions and taxes of any kind (including
without limitation, transfer taxes) relating to any disposition, sale or
transfer of Registrable Securities.
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Section 5. Indemnification; Contribution.
(a) Indemnification by the Company. If any Registrable
Securities are included in a Shelf Registration Statement under this Agreement:
(i) To the extent permitted by applicable law, the
Company shall indemnify and hold harmless each selling Holder,
each Person, if any, who controls such selling Holder within the
meaning of the Securities Act, and each officer, director,
trustee, partner, and employee of such selling Holder and such
controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint or several), including
attorneys' fees and disbursements and expenses of investigation,
incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of
the foregoing Persons may become subject under the Securities
Act, the Exchange Act or other federal or state laws, insofar as
such losses, claims, damages, liabilities and expenses arise out
of or are based upon any of the following statements, omissions
or violations (collectively, a "Violation"):
(A) Any untrue statement or alleged untrue
statement of a material fact contained in such
registration statement, including any preliminary
prospectus or final prospectus contained therein, or any
amendments or supplements thereto or any document
incorporated by reference therein;
(B) The omission or alleged omission to state
therein a material fact required to be stated therein,
or necessary to make the statements therein not
misleading; or
(C) Any violation or alleged violation by the
Company of the federal securities laws, any applicable
state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act
or any applicable state securities law;
provided, however, that the indemnification required by this Section 5(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or
expense to the extent that it arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by the indemnified party expressly for use
in connection with such registration; provided, further, that the indemnity
agreement contained in this Section 5(a) shall not apply to any underwriter to
the extent that any such loss is based on or arises out of an untrue statement
or alleged untrue statement of a
14
material fact, or an omission or alleged omission to state a material fact,
contained in or omitted from any preliminary prospectus if the final prospectus
shall correct such untrue statement or alleged untrue statement, or such
omission or alleged omission, and a copy of the final prospectus has not been
sent or given to such Person at or prior to the confirmation of sale to such
Person if such underwriter was under an obligation to deliver such final
prospectus and failed to do so. The Company shall also indemnify underwriters
participating in the distribution of the Registrable Securities, their officers,
directors, agents and employees and each Person who controls such Persons
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the selling Holders. This indemnity shall be in addition to
any liability the Company may otherwise have. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
such selling Holder or any indemnified party and shall survive the transfer of
such securities by such Holder.
(b) Indemnification by Holder. If any of a selling Holder's
Registrable Securities are included in a registration statement under this
Agreement, to the extent permitted by applicable law, such selling Holder shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who shall have signed the registration statement, each Person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, any other selling Holder, any controlling
Person of any such other selling Holder and each officer, director, partner, and
employee of such other selling Holder and such controlling Person, against any
and all losses, claims, damages, liabilities and expenses (joint and several),
including attorneys' fees and disbursements and expenses of investigation,
incurred by such party pursuant to any actual or threatened action, suit,
proceeding or investigation, or to which any of the foregoing Persons may
otherwise become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages, liabilities and
expenses arise out or are based upon any untrue statement of a material fact or
any omission of a material fact required to be stated in the Registration
Statement under which such Registrable Securities were registered under the
Securities Act (including any final, preliminary or summary Prospectus contained
therein or any amendment thereof or supplement thereto or any documents
incorporated by reference therein), or necessary to make the statements therein
(in the case of a Prospectus or preliminary Prospectus, in light or the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission had been contained in
any information furnished in writing by such selling Holder to the Company
expressly for use in connection with such registration; provided, however, that
(x) the indemnification required by this Section 5(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or expense if
settlement is effected without the consent of the relevant selling Holder of
Registrable Securities, which consent shall not be unreasonably withheld, and
(y) in no event shall the amount of any indemnity under this Section 5(b) exceed
the gross proceeds from the
15
applicable offering received by such selling Holder. In no event shall a Holder
be jointly liable with any other Holder as a result of its indemnification
obligations.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under this Section 5 of notice of the
commencement of any action, suit, proceeding, investigation or threat thereof
made in writing for which such indemnified party may make a claim under this
Section 5, such indemnified party shall deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties. The
failure to deliver written notice to the indemnifying party within a reasonable
time following the commencement of any such action, if not otherwise known by
the indemnifying party and if it materially prejudices or results in forfeiture
of substantial rights or defenses, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 5, to the extent of any
damage directly suffered by the indemnifying party as a result thereof, but
shall not relieve the indemnifying party of any liability that it may have to
any indemnified party otherwise than pursuant to this Section 5. Any fees and
expenses incurred by the indemnified party (including any fees and expenses
incurred in connection with investigating or preparing to defend such action or
proceeding) shall be paid to the indemnified party, as incurred, within thirty
(30) days of written notice thereof to the indemnifying party (regardless of
whether it is ultimately determined that an indemnified party is not entitled to
indemnification hereunder). Any such indemnified party shall have the right to
employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses, (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding, (iii) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party, and such indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or in addition to those available to the indemnifying party, or
(iv) in the reasonable judgment of the indemnified party, based upon advice of
its counsel, a conflict of interest may exist between such party and the
indemnifying party with respect to such claims (in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one additional firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a
16
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such action, claim or proceeding, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels). No indemnifying party shall be
liable to an indemnified party for any settlement of any action, proceeding or
claim without the written consent of the indemnifying party, which consent shall
not be unreasonably withheld.
(d) Contribution. If the indemnification required by this
Section 5 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to in this Section 5:
(i) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to,
among other things, whether any Violation has been committed by,
or relates to information supplied by, such indemnifying party
or indemnified parties, and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such Violation. The amount paid or payable by a party as
a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 5(a) and Section 5(b),
any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to in Section 5(d)(i). 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.
(e) Full Indemnification. If indemnification is available under
this Section 5, the indemnifying parties shall indemnify each indemnified party
to the full extent provided in this Section 5 without regard to the relative
fault of such indemnifying party or indemnified party or any other equitable
consideration referred to in Section 5(d)(i) hereof.
17
(f) Survival. The obligations of the Company and the selling
Holders of Registrable Securities under this Section 5 shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement under this agreement, and otherwise.
Section 6. Covenants of the Company. The Company hereby agrees
and covenants as follows:
(a) Exchange Act Filings. The Company shall file as and when
applicable, on a timely basis, all reports required to be filed by it under the
Exchange Act. If the Company is not required to file reports pursuant to the
Exchange Act, upon the request of any Holder of Registrable Securities, the
Company shall make publicly available the information specified in subparagraph
(c)(2) of Rule 144. The Company shall take such further action as may be
reasonably required from time to time and as may be within the reasonable
control of the Company, to enable the Holders to Transfer Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 or any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements and, if not, the specifics
thereof.
In connection with any sale, transfer or other disposition by a
Holder of any Registrable Securities pursuant to Rule 144, the Company shall
cooperate with such Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
Securities Act legend, and enable certificates for such Registrable Securities
to be for such number of shares and registered in such names as the Holder may
reasonably request at least two business days prior to any sale of Registrable
Securities.
(b) Merger, Consolidations and Sale of Assets. The Company shall
not, directly or indirectly, (x) enter into any merger, consolidation or
reorganization in which the Company shall not be the surviving corporation or
(y) Transfer or agree to Transfer all or substantially all the Company's assets,
unless prior to such merger, consolidation, reorganization or asset Transfer,
the surviving corporation or the transferee, respectively, shall have agreed in
writing to assume the obligations of the Company under this Agreement, and for
that purpose references hereunder to "Registrable Securities" shall be deemed to
include the securities which the Holders of Registrable Securities would be
entitled to receive in exchange for Registrable Securities pursuant to any such
merger, consolidation or reorganization.
18
Section 7. Miscellaneous.
(a) Amendments and Waivers.
(i) The provisions of this Agreement, including the
provisions of this Section 7(a), may not be amended, modified or
supplemented, and waivers or consents to departures from the
provisions hereof may not be given without the written consent
of the Company and the Holders of a majority of the outstanding
Registrable Securities, provided that no amendment, modification
or supplement or waiver or consent to a departure with respect
to Section 5 hereof shall be effective against any Holder unless
consented to in writing by such Holder. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon
each Holder, each future Holder of Registrable Securities, and
the Company.
(ii) Notice of any amendment, modification or supplement
to this Agreement adopted in accordance with this Section 7
shall be provided by the Company to the Holders at least thirty
(30) days prior to the effective date of such amendment,
modification or supplement.
(b) Notices. All notices or other communications under this
Agreement shall be sufficient if in writing and delivered by hand or sent,
postage prepaid by registered, certified or express mail, or by recognized
overnight air courier service and shall be deemed given when so delivered by
hand, or if mailed or sent by overnight courier service, on the third Business
Day after mailing (one Business Day in the case of express mail or overnight
courier service) to the parties at the following addresses:
(i) if to ABP, to:
Stichting Pensioenfonds ABP
c/o ABP Investments US, Inc.
Attention: Xxxxxx Xxxx
Managing Director/CIO
000 Xxxxx Xxxxxx 0xx xxxxx
Xxx Xxxx, XX 00000-0000
Tel. No.: 000-000-0000
Fax. No.: 000-000-0000
and with a copy to:
Stichting Pensioenfonds ABP
Attention: Xxxx Xxxxxxx
Chief Legal Counsel ABP Investments
Xxxx Xxxxxxxxxxx 00
00
0000 XX Xxxxxxx
Xxx Xxxxxxxxxxx
Tel. No.: x00 00 000 0000
Fax. No.: x00 00 000 0000
(ii) if to the Company, to:
Capital Trust, Inc.
000 Xxxx Xxxxxx,
00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
or at such other address as the addressee may have furnished in writing to the
sender as provided herein.
(c) Successors, Assigns and Transferees. This Agreement shall
inure to the benefit of and be binding upon the successors, assigns and
transferees of the Company and the Holders, including, without limitation and
without the need for an express assignment, subsequent Holders who have acquired
Registrable Securities by Transfer. If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities, such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof.
(d) 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.
(e) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
20
STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF.
(g) Specific Performance; Costs and Expenses. The parties hereto
acknowledge that there would be no adequate remedy at law if any party fails to
perform any of its obligations hereunder, and accordingly agree that each party,
in addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction. The parties agree that if any party or parties violates this
Agreement, in addition to the any other rights and remedies the non-violating
party may have (including monetary damages), the prevailing party or parties
shall be entitled to receive from the losing party or parties all costs and
expenses, including reasonable attorneys' fees, incurred or expended by the
prevailing party or parties to enforce its rights under the Agreement.
(h) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
21
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
CAPITAL TRUST, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
STICHTING PENSIOENFONDS ABP
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director/CIO of ABP
Investments US, Inc. acting as agent for
Stichting Pensionfonds ABP
STICHTING PENSIOENFONDS ABP
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director/CIO of ABP
Investments US, Inc. acting as agent for
Stichting Pensionfonds ABP
