REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of September 3, 1999 by and between Taubman Centers, Inc., a Michigan
corporation (the "Company"), and Xxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx Fund, L.P., a
Delaware limited partnership ("Holder").
WHEREAS, Holder is receiving on the date hereof Series C Preferred Equity
(the "Equity") in The Taubman Realty Group Limited Partnership, a Delaware
limited partnership (the "Partnership");
WHEREAS, in connection therewith, the Company has agreed to grant to Holder
the Registration Rights (as defined in Section 1 hereof);
NOW, THEREFORE, the parties hereto, in consideration of the foregoing and
the mutual covenants and agreements hereinafter set forth, hereby agree as
follows:
SECTION 1. REGISTRATION RIGHTS
If Holder receives 9% Series C Cumulative Redeemable Preferred Stock of the
Company (the "Preferred Stock") upon exchange of the Equity (the "Exchange
Shares") pursuant to the terms of the Amended and Restated Agreement of Limited
Partnership of the Partnership, as the same has been and may be amended from
time to time (the "Partnership Agreement"), then unless such Exchange Shares are
issued to Holder pursuant to an Issuer Registration Statement as provided in
Section 2 below, Holder shall be entitled to offer for sale pursuant to a shelf
registration statement, the Exchange Shares, subject to the terms and conditions
set forth in Section 3 hereof (the "Registration Rights").
SECTION 2. ISSUER REGISTRATION STATEMENT
Anything contained herein to the contrary notwithstanding, in the event
that the Exchange Shares are issued by the Company to Holder pursuant to an
effective registration statement (an "Issuer Registration Statement") filed with
the Securities and Exchange Commission (the "Commission"), the Company shall be
deemed to have satisfied all of its registration obligations under this
Agreement.
SECTION 3. DEMAND REGISTRATION RIGHTS
3.1 (a) Registration Procedure. Unless such Exchange Shares are issued
pursuant to an Issuer Registration Statement as provided in Section 2 hereof,
then subject to Sections 3.1(c) and 3.2 hereof, if Holder desires to exercise
its Registration Rights with respect to the Exchange Shares, Holder shall
deliver to the Company a written notice (a "Registration Notice") informing the
Company of such exercise and specifying the number of shares to be offered by
such Holder (such shares to be offered being referred to herein as the
"Registrable Securities"). Such notice may be given at any time on or after the
date
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a notice of exchange is delivered by Holder to the Partnership pursuant to the
Partnership Agreement, but must be given at least fifteen (15) Business Days
prior to the anticipated consummation of the sale of Registrable Securities,
which consummation shall in any event be subject to an effective Shelf
Registration Statement (as hereinafter defined) or an effective New Registration
Statement (as hereinafter defined). As used in this Agreement, a "Business Day"
is any Monday, Tuesday, Wednesday, Thursday or Friday other than a day on which
banks and other financial institutions are authorized or required to be closed
for business in the State of New York or Michigan. Upon receipt of the
Registration Notice, the Company, if it has not already caused the Registrable
Securities to be included as part of an existing shelf registration statement
(prior to the filing of which the Company shall have given ten (10) Business
Days notice to Holder) and related prospectus that the Company than has on file
with the Commission (the "Shelf Registration Statement") (in which event the
Company shall be deemed to have satisfied its registration obligation under this
Section 3), will cause to be filed with the Commission as soon as reasonably
practicable after receiving the Registration Notice a new registration statement
and related prospectus (a "New Registration Statement") that complies as to form
in all material respects with applicable Commission rules providing for the sale
by Holder of the Registrable Securities, and agrees (subject to Section 3.2
hereof) to use its best efforts to cause such New Registration Statement to be
declared effective by the Commission as soon as practicable. (As used herein,
"Registration Statement" and "Prospectus" refer to the Shelf Registration
Statement and related prospectus (including any preliminary prospectus) or the
New Registration Statement and related prospectus (including any preliminary
prospectus), whichever is utilized by the Company to satisfy Holder's
Registration Rights pursuant to this Section 3, including in each case any
documents incorporated therein by reference.) Holder agrees to provide in a
timely manner information regarding the proposed distribution by Holder of the
Registrable Securities and such other information reasonably requested by the
Company in connection with the preparation of and for inclusion in the
Registration Statement. The Company agrees (subject to Section 3.2 hereof) to
use its best efforts to keep the Registration Statement effective (including the
preparation and filing of any amendments and supplements necessary for that
purpose) until the earlier of (i) the date on which Holder consummates the sale
of all of the Registrable Securities registered under the Registration
Statement, or (ii) the date on which all of the Registrable Securities are
eligible for sale pursuant to Rule 144(k) (or any successor provision) or in a
single transaction pursuant to Rule 144(e) (or any successor provision) under
the Securities Act of 1933, as amended (the "Act"), provided, that except with
respect to any Shelf Registration, such period need to extend beyond nine months
after the effective date of the Registration Statement; and provided further,
that with respect to any Shelf Registration, such period need not extend beyond
the time period provided in this Section 3.1(a), and which periods, in any
event, shall terminate when all the Exchange Shares covered by such Registration
Statement have been sold (but not before the expiration of the time period
provided in Section 4(3) of the Act and Rule 174 thereunder, if applicable). The
Company agrees to provide to Holder a reasonable number of copies of the final
Prospectus and any amendments or supplements thereto. Notwithstanding the
foregoing, the Company may at any time, in its sole discretion and prior to
receiving any Registration Notice from Holder, include all of Holder's Exchange
Shares or any portion thereof in any Shelf Registration Statement. In connection
with any Registration Statement utilized by the Company to satisfy Holder
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Registration Rights pursuant to this Section 3, Holder agrees that it will
respond within ten (10) Business Days to any request by the Company to provide
or verify information regarding Holder or Holder's Registrable Securities as may
be required to be included in such Registration Statement pursuant to the rules
and regulations of the Commission.
(b) Offers and Sales. All offers and sales by Holder under the Registration
Statement referred to in this Section 3 shall be completed within the period
during which the Registration Statement is required to remain effective pursuant
to Section 3.1(a) of this Section 3, and upon expiration of such period Holder
will not offer or sell any Registrable Securities under the Registration
Statement. If directed by the Company, Holder will return all undistributed
copies of the Prospectus in its possession upon the expiration of such period.
(c) Limitations on Registration Rights. Each exercise of a Registration
Right shall be with respect to a minimum of the lesser of (i) five hundred
thousand (500,000) Preferred Stock or (ii) the total number of Exchange Shares
held by Holder at such time plus the number of Exchange Shares that may be
issued upon exchange of the Equity by Holder. The right of Holder to deliver a
Registration Notice commences upon the first date Holder is permitted to
exchange the Equity pursuant to the Partnership Agreement and Holder's
acceptance of Partnership Agreement pursuant to that certain Private Placement
Purchase Agreement of even date herewith between Holder and the Partnership. The
right of Holder to deliver a Registration Notice shall expire on the date on
which all of the Exchange Shares held by Holder or issuable upon exchange of the
Equity held by Holder are eligible for sale pursuant to Rule 144(k) (or any
successor provision) under the Act. The Registration Rights granted pursuant to
this Section 3.1 may be exercised in connection with an underwritten public
offering provided that the Company shall have the right to select the
Underwriter or Underwriters in connection with such public offering, which shall
be subject to the reasonable approval of Holder.
3.2 Suspension of Offering. Upon any notice by the Company, either before
or after Holder has delivered a Registration Notice, that a negotiation or
consummation of a transaction by the Company or any of its subsidiaries is
pending or an event has occurred, which negotiation, consummation or event would
require additional disclosure by the Company in a Registration Statement of
material information which the Company has a bona fide business purpose for
keeping confidential and the nondisclosure of which in the Registration
Statement might cause the Registration Statement to fail to comply with
applicable disclosure requirements (a "Materiality Notice"), Holder agrees that
it will immediately discontinue offers and sales of the Registrable Securities
under the Registration Statement until Holder receives copies of a supplemental
or amended Prospectus that corrects the misstatement(s) or omission(s) referred
to above and receives notice that any post-effective amendment has become
effective; provided, that the Company may delay, suspend or withdraw the
Registration Statement for such reason for no more than sixty (60) days after
delivery of the Materiality Notice at any one time but may not do so more than
two times in any twelve month period. If so directed by the Company, Holder will
deliver to the Company all copies of the Prospectus covering the Registrable
Securities current at the time of receipt of any Materiality Notice.
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3.3 Qualification. The Company agrees to use its best efforts to register
or qualify the Registrable Securities by the time the applicable Registration
Statement is declared effective by the Commission under all applicable state
securities or "blue sky" laws of such jurisdictions as Holder shall reasonably
request in writing, to keep each such registration or qualification effective
during the period such Registration Statement is required to be kept effective
or during the period offers or sales are being made by Holder after delivery of
a Registration Notice to the Company, whichever is shorter, and to do any and
all other acts and things which may be reasonably necessary or advisable to
enable Holder to consummate the disposition in each such jurisdiction of the
Registrable Securities owned by Holder; provided, however, that the Company
shall not be required to (x) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this Section 3.3, (y) subject
itself to taxation in any such jurisdiction, or (z) submit to the general
service of process in any such jurisdiction.
3. 4 Whenever the Company is required to effect the registration of
Exchange Shares under the Securities Act pursuant to Section 3.1 of this
Agreement, subject to Section 3.2 hereof, the Company shall:
(a) prepare and file with the Commission (as soon as reasonably practical
after receiving the Registration Notice, and in any event within 60 days after
receipt of such Registration Notice) the requisite Registration Statement to
effect such registration, which Registration Statement shall comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the Commission to be filed
therewith, and the Company shall use its reasonable best efforts to cause such
Registration Statement to become effective; provided, however, that before
filing a Registration Statement or Prospectus or any amendments or supplements
thereto, or comparable statements under securities or blue sky laws of any
jurisdiction, the Company shall (i) provide Holder with an adequate and
appropriate opportunity to participate in the preparation of such Registration
Statement and each Prospectus included therein (and each amendment or supplement
thereto or comparable statement) to be filed with the Commission and (ii) not
file any such Registration Statement or Prospectus (or amendment or supplement
thereto or comparable statement) with the Commission to which Holder's counsel
or any underwriter designated by the Holder and approved by the Company, which
approval shall not be unreasonably withheld (the "Underwriter"), shall have
reasonably objected on the grounds that such filing does not comply in all
material respects with the requirements of the Act or of the rules or
regulations thereunder.
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the Prospectus used in connection therewith as
may be necessary (i) to keep such Registration Statement effective and (ii) to
comply with the provisions of the Act with respect to the disposition of the
Redemption Shares covered by such Registration Statement, in each case until
such time as all of such Redemption Shares have been disposed of in accordance
with the intended methods of disposition by the seller(s) thereof set forth in
such Registration Statement; provided, that except with respect to any Shelf
Registration, such period need not extend beyond nine months after the effective
date of the Registration Statement; and provided further, that with respect to
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any Shelf Registration, such period need not extend beyond the time period
provided in Section 3.1(a), and which periods, in any event, shall terminate
when all the Redemption Shares covered by such Registration Statement have been
sold (but not before the expiration of the time period referred to in Section
4(3) of the Act and Rule 174 thereunder, if applicable);
(c) furnish, without charge, to the Holder and each Underwriter, if any, of
the securities covered by such Registration Statement, such number of copies of
such Registration Statement, each amendment and supplement thereto (in each case
including all exhibits), and the Prospectus included in such Registration
Statement (including each preliminary Prospectus) in conformity with the
requirements of the Act, and other documents, as the Holder and such Underwriter
may reasonably request in order to facilitate the public sale or other
disposition of the Redemption Shares owned by the Holder;
(d) prior to any public offering of Redemption Shares, use its reasonable
best efforts to register or qualify the Redemption Shares covered by such
Registration Statement under such other securities or blue sky laws of such
jurisdictions as the Holder or the sole or lead managing Underwriter, if any,
may reasonably request to enable the Holder to consummate the disposition in
such jurisdictions of the Redemption Shares owned by the Holder and to continue
such registration or qualification in effect in each such jurisdiction for as
long as such Registration Statement remains in effect (including through new
filings or amendments or renewals), and do any and all other acts and things
which may be necessary or advisable to enable the Holder to consummate the
disposition in such jurisdictions of the Redemption Shares owned by it,
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section, (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) Promptly notify Holder and the sole or lead managing Underwriter, if
any: (i) when the Registration Statement, any pre-effective amendment, the
Prospectus or any prospectus supplement related thereto or post-effective
amendment to the Registration Statement has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any state securities or blue
sky authority for amendments or supplements to the Registration Statement or the
Prospectus related thereto or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration or the initiation or threat of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of qualification of any Exchange Shares for sale under the securities
or blue sky laws of any jurisdiction or the initiation of any proceeding for
such purpose, (v) of the existence of any fact of which the Company becomes
aware or the happening of any event which results in (A) the Registration
Statement containing an untrue statement of a material fact or omitting to state
a material fact required to be stated therein or necessary to make any
statements therein not misleading, or (B) the Prospectus included in such
Registration Statement containing an untrue statement of a material fact or
omitting to
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state a material fact required to be stated therein or necessary to make any
statements therein, in the light of the circumstances under which they were
made, not misleading, and (vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate or
that there exists circumstances not yet disclosed to the public which make
further sales under such Registration Statement inadvisable pending such
disclosure and post-effective amendment; and, if the notification relates to an
event described in any of the clauses (v) or (vi) of this Section, subject to
Section 3.2, the Company shall promptly prepare a supplement or post-effective
amendment to such Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document, so that
(1) such Registration Statement shall not contain any 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 not misleading, and (2) as thereafter
delivered to the purchasers of the Exchange Shares being sold thereunder, 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 the light of the circumstances under which they were made
not misleading (and shall furnish to Holder and each Underwriter, if any, a
reasonable number of copies of such Prospectus so supplemented or amended); and
if the notification relates to an event described in clauses (ii) through (iv)
of this Section, the Company shall use its reasonable best efforts to remedy
such matters;
(f) make reasonably available for inspection by Holder, any sole or lead
managing Underwriter participating in any disposition pursuant to such
Registration Statement, Holder's counsel and any attorney, accountant or other
agent retained by any such seller or any Underwriter material financial and
other relevant information concerning the business and operations of the Company
and the properties of the Company and any subsidiaries thereof as may be in
existence at such time as shall be necessary, in the reasonable opinion of such
Holder's and such Underwriters' respective counsel, to enable them to conduct a
reasonable investigation within the meaning of the Securities Act, and cause the
Company's and any subsidiaries' officers, directors and employees, and the
independent public accountants of the Company, to supply such information as may
be reasonably requested by any such parties in connection with such Registration
Statement;
(g) obtain an opinion from the Company's counsel and a "cold comfort"
letter from the Company's independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
Registration Statement in customary form and covering such matters as are
customarily covered by such opinions and "cold comfort" letters delivered to
Underwriters in underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the sole or lead managing Underwriter, if any, and to
Holder, and furnish to Holder participating in the offering and to each
Underwriter, if any, a copy of such opinion and letter addressed to Holder (in
the case of the opinion) and Underwriter (in the case of the opinion and the
"cold comfort" letter);
(h) in the case of an underwritten offering, make generally available to
its security-holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an
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earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(i) use its reasonable best efforts to cause all such Exchange Shares to be
listed (i) on the national securities exchange on which the Company's common
shares are then listed or (ii) if common shares of the Company are not at the
time listed on any national securities exchange (or if the listing of Exchange
Shares is not permitted under the rules of such national securities exchange on
which the Company's common shares are then listed), on another national
securities exchange;
(j) furnish to Holder and the sole or lead managing Underwriter, if any,
without charge, at least one manually signed copy of the Registration Statement
and any post-effective amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including those deemed to be incorporated by reference);
(k) if requested by the sole or lead managing Underwriter or Holder of
Exchange Shares, incorporate in a prospectus supplement or post-effective
amendment such information concerning Holder, the Underwriters or the intended
method of distribution as the sole or lead managing Underwriter or Holder
reasonably requests to be included therein and as is appropriate in the
reasonable judgment of the Company, including, without limitation, information
with respect to the number of Exchange Shares being sold to the Underwriters,
the purchase price being paid therefor by such Underwriters and with respect to
any other terms of the underwritten offering of the Exchange Shares to be sold
in such offering; and
(l) use its reasonable best efforts to take all other steps necessary to
expedite or facilitate the registration and disposition of the Exchange Shares
contemplated hereby, including obtaining necessary governmental approvals and
effecting required filings; entering into customary agreements (including
customary underwriting agreements, if the public offering is underwritten);
cooperating with Holder and any Underwriters in connection with any filings
required by the NASD; providing appropriate certificates not bearing restrictive
legends representing the Exchange Shares; and providing a CUSIP number and
maintaining a transfer agent and registrar for the Exchange Shares.
3.5 Indemnification by the Company. The Company agrees to indemnify and
hold harmless Holder and each person, if any, who controls Holder within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which the
Registrable Securities were registered under the Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated
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therein or necessary to make the statements therein not misleading or
arising out of or based upon 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 3.4 does
not apply with respect to any loss, liability, claim, damage or expense to the
extent arising out of (A) 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 Holder expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto), or (B) Holder's failure to deliver an amended
or supplemental Prospectus provided to the Holder by the Company if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
3.6 Indemnification by Holder. Holder (and each permitted assignee of
Holder, on a several basis) agrees to indemnify and hold harmless the Company,
and each of its directors and officers (including each director and officer of
the Company who signed a Registration Statement), and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which the
Registrable Securities were registered under the 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
or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto), including
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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 Holder; 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 3.5
shall only apply with respect to any loss, liability, claim, damage or expense
to the extent arising out of (A) 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 Holder expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto), or (B) Holder's failure to deliver an amended
or supplemental Prospectus provided to Holder by the Company if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred. Notwithstanding the provisions of this Section 3.6, Holder and any
permitted assignee shall not be required to indemnify the Company, its officers,
directors or control persons with respect to any amount in excess of the amount
of the total proceeds to Holder or such permitted assignee, as the case may be,
from sales of the Registrable Securities of Holder under the Registration
Statement.
3.7 Conduct of Indemnification Proceedings. An indemnified party hereunder
shall give reasonably prompt notice to the indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify the indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in Section 3.5 or 3.6 above, 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 Section 3.5 or 3.6 above. 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
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unreasonably withheld; provided, however, that the indemnifying party will not
settle any such action or proceeding without the written consent of the
indemnified party unless, as a condition to such settlement, the indemnifying
party secures the unconditional release of the indemnified party; and provided
further, that if the indemnified party reasonably determines that a conflict of
interest exists where it is advisable for the indemnified party to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it which are different from or in addition to those
available to the indemnifying party, then the indemnifying party shall not be
entitled to assume such defense and the indemnified party shall be entitled to
separate counsel at the indemnifying party's expense. If the indemnifying party
is not entitled to assume the defense of such action or proceeding as a result
of the second proviso to the preceding sentence, the indemnifying party's
counsel shall be entitled to conduct the indemnifying party's defense and
counsel for the indemnified party shall be entitled to conduct the defense of
the indemnified party, it being understood that both such counsel will cooperate
with each other to conduct the defense of such action or proceeding as
efficiently as possible. If the indemnifying party is not so entitled to assume
the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel for the
indemnified party. In such event, however, the indemnifying party will not be
liable for any settlement effected without the written consent of the
indemnifying party. If an indemnifying party is entitled to assume, and assumes,
the defense of such action or proceeding in accordance with this paragraph, the
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified party incurred thereafter in connection with such action or
proceeding.
3.8 Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Sections 3.5
and 3.6 above is for any reason held to be unenforceable by the indemnified
party although applicable in accordance with its terms, the Company and 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 Holder, (i) in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and Holder on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault of but also the relative
benefits to the Company on the one hand and Holder on the other, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits to the indemnifying party and indemnified party shall be
determined by reference to, among other things, the total proceeds received by
the indemnifying party and indemnified party in connection with the offering to
which such losses, claims, damages, liabilities or expenses relate. The relative
fault of the indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, the indemnifying party or the indemnified party, and
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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 3.8 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 3.8, Holder shall not be required
to contribute any amount in excess of the amount of the total proceeds to Holder
from sales of the Registrable Securities of Holder under the Registration
Statement.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 3.8, each person, if any, who
controls Holder within the meaning of Section 15 of the Act shall have the same
rights to contribution as Holder, and each director of the Company, each officer
of the Company who signed a Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act shall have the
same rights to contribution as the Company.
SECTION 4. EXPENSES
The Company shall pay all expenses incident to the performance by the
Company of the Company's registration obligations under Sections 2 and 3,
including (i) all stock exchange, Commission and state securities registration,
listing and filing fees, (ii) all expenses incurred in connection with the
preparation, printing and distributing of any Issuer Registration Statement or
Registration Statement and Prospectus, and (iii) fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company. Holder shall be responsible for the payment of any brokerage and sales
commissions, fees and disbursements of Holder's counsel, accountants and other
advisors, and any transfer taxes relating to the sale or disposition of the
Registrable Securities by Holder pursuant to Section 3 or otherwise.
SECTION 5. RULE 144 COMPLIANCE
The Company covenants that it will use its best efforts to timely file the
reports required to be filed by the Company under the Act and the Exchange Act
so as to enable Holder to sell Registrable Securities pursuant to Rule 144 under
the Act. In connection with any sale, transfer or other disposition by Holder of
any Registrable Securities pursuant to Rule 144 under the Act, the Company shall
cooperate with Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
Act legend, and enable certificates for such Registrable Securities to be for
such number of shares and registered in such names as Holder may reasonably
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request at least ten (10) Business Days prior to any sale of Registrable
Securities hereunder.
SECTION 6. MISCELLANEOUS
6.1 Integration; Amendment. This Agreement constitutes the entire agreement
between the parties hereto with respect to the matters set forth herein and
supersedes and renders of no force and effect all prior oral or written
agreements, commitments and understandings among the parties with respect to the
matters set forth herein. Except as otherwise expressly provided in this
Agreement, no amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by the Company
and Holder.
6.2 Waivers. No waiver by a party hereto shall be effective unless made in
a written instrument duly executed by the party against whom such waiver is
sought to be enforced, and only to the extent set forth in such instrument.
Neither the waiver by any of the parties hereto of a breach or a default under
any of the provisions of this Agreement, nor the failure of any of the parties,
on one or more occasions, to enforce any of the provisions of this Agreement or
to exercise any right or privilege hereunder shall thereafter be construed as a
waiver of any subsequent breach or default of a similar nature, or as a waiver
of any such provisions, rights or privileges hereunder.
6.3 Assignment; Successors and Assigns. This Agreement and the rights
granted hereunder may not be assigned by Holder without the written consent of
the Company, provided, however, that Holder may assign its rights and
obligations hereunder, following at least ten (10) days' prior written notice to
the Company, to the direct equity owners (e.g., partners or members) or
beneficiaries, if, such persons agree in writing to be bound by all of the
provisions hereof. This Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of all of the parties hereto.
6.4 Notices. All notices called for under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally or by
facsimile transmission and followed promptly by mail, or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the addresses set forth below their names in the signature page hereto, or to
any other address or addressee as any party entitled to receive notice under
this Agreement shall designate, from time to time, to others in the manner
provided in this Section 6.4 for the service of notices; provided, however, that
notice of a change of address shall be effective only upon receipt thereof. Any
notice delivered to the party hereto to whom it is addressed shall be deemed to
have been given and received on the day it was received; provided, however, that
if such day is not a Business Day then the notice shall be deemed to have been
given and received on the Business Day next following such day and if any party
rejects delivery of any notice attempted to be given hereunder, delivery shall
be deemed given on the date of such rejection. Any notice sent by facsimile
transmission shall be deemed to have been given and received on the Business Day
next following the transmission.
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6.5 Specific Performance. The Parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if either 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 (i)
compel specific performance of the obligations, covenants and agreements of the
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.
6.6 Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Michigan, but not
including the choice of law rules thereof.
6.7 Headings. Section and subsection headings contained in this Agreement
are inserted for convenience of reference only, shall not be deemed to be a part
of this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
6.8 Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the person or entity may require.
6.9 Execution in Counterparts. To facilitate execution, this Agreement may
be executed in as many counterparts as may be required. It shall not be
necessary that the signature of or on behalf of each party appears on each
counterpart, but it shall be sufficient that the signature of or on behalf of
each party appears on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of both of the
parties.
6.10 Severability. If fulfillment of any provision of this Agreement, at
the time such fulfillment shall be due, shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision contained in this
Agreement operates or would operate to invalidate this Agreement, in whole or in
part, then such clause or provision only shall be held ineffective, as though
not herein contained, and the remainder of this Agreement shall remain operative
and in full force and effect.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed on its behalf as of the date first herein above set forth.
TAUBMAN CENTERS, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Address: 000 Xxxx Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
XXXXXXX XXXXX 0000 XXXXXXXX XXXXX
FUND L.P.
By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title:
Address: c/o Goldman Sachs & Co.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx X. Xxxxxx
