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Exhibit 99.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of February
23, 1999, is entered into by and between CAMDEN PROPERTY TRUST, a Texas real
estate investment trust (the "COMPANY" or the "REIT"), and Belcrest Realty
Corporation, a Delaware corporation ("BELCREST") and Belair Real Estate
Corporation, a Delaware corporation ("BELAIR"; and together with Belcrest, the
"CONTRIBUTORS").
RECITALS
WHEREAS, in connection with the offering of 4,000,000 8.5% Series B
Cumulative Redeemable Preferred Units (the "OP UNITS") of Camden Operating,
L.P., a Delaware limited partnership ( the "OPERATING PARTNERSHIP"),
Contributors contributed to the Operating Partnership $100,000,000 in return for
the OP Units on terms and conditions set forth in the Contribution Agreement,
dated as of the date hereof, by and among Belair, Belcrest, the Company and
Operating Partnership (the "CONTRIBUTION AGREEMENT");
WHEREAS, the Contributors will receive the OP Units in exchange for cash
contributed to the Operating Partnership;
WHEREAS, pursuant to the Third Amended and Restated Agreement of Limited
Partnership of the Operating Partnership (as amended by that certain First
Amendment to Third Amended and Restated Agreement of Limited Partnership, dated
as of the date hereof, the "AGREEMENT OF LIMITED PARTNERSHIP"), the OP Units
owned by the Contributors or their successors and assigns will be redeemable for
cash or exchangeable for shares of the Company's 8.5% Series B Cumulative
Redeemable Preferred Shares of Beneficial Interest (the "PREFERRED SHARES") upon
the terms and subject to the conditions contained therein; and
WHEREAS, in order to induce the Contributors to enter into the Contribution
Agreement, the Company and the Operating Partnership have agreed to enter into
this Agreement and to provide registration rights set forth herein to the
Contributors and any subsequent holder or holders of the OP Units.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"AFFILIATE" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"AGREEMENT" shall have the meaning set forth in the preamble.
"AGREEMENT OF LIMITED PARTNERSHIP" shall have the meaning set forth
therefor in the Recitals.
"BELAIR" shall have the meaning set forth in the preamble.
"BELCREST" shall have the meaning set forth in the preamble.
"CLOSING DATE" shall mean the date of closing of the Company's sale of
Series B Preferred Units to the Contributors.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors or other parties who succeed to the Company's
obligations hereunder.
"CONTRIBUTION AGREEMENT" shall have the meaning set forth in the preamble.
"CONTRIBUTORs" shall have the meaning sets forth in the preamble and shall
include their successors and permitted assigns.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and any successor statute thereto, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the relevant time.
"HOLDER" shall mean (i) any Contributor or (ii) any Person holding
Registrable Securities as a result of a transfer or assignment of Registrable
Securities to that Person other than pursuant to an effective Registration
Statement or Rule 144 under the Securities Act, in each case where securities
sold in such transaction may be resold in a public distribution without
subsequent registration under the Securities Act (provided that (a) such
transfer or assignment occurred pursuant and in accordance with Section 16.9 of
the Agreement of Limited Partnership, and (b) any such transferee assumes the
obligations under, and becomes a party to, this Agreement), and together the
entities described in clauses (i) and (ii) hereof shall be "HOLDERS".
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 7(C)
hereof.
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"INDEMNIFYING PARTY" shall have the meaning set forth in SECTION 7(C)
hereof.
"OP UNITS" shall have the meaning set forth therefor in the Recitals.
"OPERATING PARTNERSHIP" shall have the meaning set forth therefor in the
Recitals.
"PERSON" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or government or agency or political subdivision
thereof.
"PIGGYBACK REGISTRATION" shall have the meaning set forth in SECTION 2(C)
hereof.
"PREFERRED SHARES" shall have the meaning set forth therefor in the
Recitals.
"PRIMARY REGISTRATION" shall have the meaning set forth in SECTION 2(C)
hereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by a
Registration Statement, and by all other amendments and supplements to such
Prospectus, including post-effective amendments, and in each case including all
material incorporated by reference therein.
"REGISTERING HOLDERS" shall have the meaning set forth in SECTION 2(B)
hereof.
"REGISTRABLE SECURITIES" shall mean (i) the shares of Preferred Shares
issued by the Company to the Holders of the Series B Preferred Units in exchange
for the Series B Preferred Units and (ii) any securities issued or issuable with
respect to the Preferred Shares issued in exchange for the Series B Preferred
Units by way of a stock split or stock dividend or in connection with a
combination of shares recapitalization, merger, consolidation or other
reorganization; PROVIDED, HOWEVER, that the securities listed above shall cease
to be Registrable Securities to the extent that (i) a Registration Statement
with respect to such securities shall have been declared effective under the
Securities Act and remains effective as provided herein, (ii) all such
securities are eligible for resale pursuant to Rule 144(k) and are held by a
Holder who is not an affiliate of the Company, within the meaning of Rule 144(a)
(a "RULE 144 AFFILIATE"), (iii) such securities are held by a Holder who is a
Rule 144 Affiliate and all such securities held by such Holder are eligible for
resale in accordance with Rule 144(e)(1), or (iv) such securities have been
disposed of pursuant to such Registration Statement.
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"REGISTRATION EXPENSES" shall mean any and all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation: (i) all SEC, stock exchange or National Association of Securities
Dealers, Inc. ("NASD") registration, listing and filing fees, (ii) all
reasonable fees and expenses incurred in connection with compliance with federal
or state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwiters and one counsel (reasonably
acceptable to Company) to the Holders in connection with state or federal
securities law compliance and blue sky qualification of any of the Registrable
Securities and the preparation of a "blue sky" memorandum and compliance with
the rules of the NASD), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, duplicating, printing, delivering and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements,
certificates and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and expenses incurred in connection with the
listing of any of the Registrable Securities on any securities exchange or The
NASDAQ National Market pursuant to SECTION 4(K) hereof, (v) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company (including, without limitation, the expenses of any
annual or special audit and comfort letters required by the Underwriters), but
excluding underwriting discounts and commission and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder; (vi)
Securities Act liability insurance, if the Company so desires; and (vii) fees
and expenses of other Persons reasonably necessary in connection with the
registration, including any experts, transfer agent or registrar, retained by
the Company.
"REGISTRATION REQUEST" shall have the meaning set forth in SECTION 2(B)
hereof.
"REGISTRATION STATEMENT" shall mean a Registration Statement of the Company
which covers all of the Registrable Securities on an appropriate form under the
Securities Act, or any similar rule that may be adopted by the SEC, 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 material incorporated by reference
therein.
"REIT" shall have the meaning set forth in the preamble.
"SEC" shall mean the Securities and Exchange Commission or any successor
federal agency.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and any
successor statute thereto, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the relevant time.
"SERIES B PREFERRED UNITS" shall have the meaning therefor set forth in the
preamble hereof.
"UNDERWRITER" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
"UNDERWRITTEN OFFERING" shall mean a sale of securities of the Company to
an underwriter or underwriters for reoffering to the public.
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2. REGISTRATION UNDER THE SECURITIES ACT.
(A) FILING OF SHELF REGISTRATION STATEMENT. The Company shall file, on or
before the date which is the tenth (10th) anniversary of the Closing Date or
such earlier date (i) as all Series B Preferred Units shall be exchanged for
Preferred Shares or (ii) as all Preferred Shares shall be distributed pursuant
to Section 16.5.A of the Agreement of Limited Partnership, a "shelf"
Registration Statement providing for the sale of all of the Registrable
Securities of the Holder. The Company shall use all commercially reasonable
efforts to have such shelf Registration Statement declared effective by the SEC
as soon as practicable thereafter. The Company agrees to use all commercially
reasonable efforts to keep the shelf Registration Statement continuously
effective for a period of two (2) years following the date the Registration
Statement is declared effective, or such shorter period which will terminate
when all of the Registrable Securities covered by the shelf Registration
Statement have been sold pursuant to the shelf Registration Statement. The
Company further agrees, if necessary, to supplement or amend the shelf
Registration Statement, if 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 registration. The shelf registration provided
for in this SECTION 2(A) may be an Underwritten Offering.
(B) DEMAND REGISTRATION. (i) At any time during which a "shelf"
Registration Statement is not effective with respect to the Registrable
Securities, upon receipt of a written request (a "REGISTRATION Request"), which
shall include a description of such Holders' proposed method of distribution
(which method may also include an Underwritten Offering by a nationally
recognized Underwriter selected by the Company and reasonably acceptable to the
Registering Holders) from Holders holding Registrable Securities having an
aggregate expected offering price of at least $20,000,000 (or, if the expected
offering price of all remaining Registrable Securities should be less than
$20,000,000, such lesser amount), the Company shall (i) promptly give notice of
the Registration Request to all non-requesting Holders and (ii) prepare and file
with the SEC, within sixty (60) days after receipt of such Registration Request,
a Registration Statement for the sale of all Registrable Securities held by the
requesting Holders and any other Holder who makes a written request of the
Company to have her or his Registrable Securities included in such Registration
Statement, which such written request must be received by the Company within ten
(10) days after such Holder receives the Registration Request (all of such
Holders, collectively, the "REGISTERING HOLDERS"). Upon receipt of such written
request, the Company shall use all commercially reasonable efforts to cause such
Registration Statement to be declared effective within one hundred twenty (120)
days after receipt of a Registration Request. The Company shall keep such
Registration Statement continuously effective until the earlier of either: (i)
the date on which all Registrable Securities have been sold pursuant to such
Registration Statement or Rule 144 or (ii) one (1) year from the effective date
of the Registration Statement.
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(ii) The Company shall not be required to effect more than three (3)
registrations pursuant to this SECTION 2(B); PROVIDED, HOWEVER, Company shall
effect one additional registration in accordance with the provisions of SECTION
2(B)(I) hereof if requested to do so by a Holder who receives Registrable
Securities pursuant to Section 16.5.A. of the Agreement of Limited Partnership
(without regard to the dollar limitation set forth therein).
(iii) If any of the Registrable Securities registered pursuant to a
Registration Statement filed under this SECTION 2(B) are to be sold in an
Underwritten Offering, and the lead managing Underwriter advises the Holders in
writing that in its opinion the total number or dollar amount of Registrable
Securities proposed to be sold in such offering is such as to materially and
adversely affect the success of such offering, then the Company will include in
such registration, first, the Registrable Securities of the Holders and, second,
any securities to be sold for the account of the Company and for the account of
other security holders of the Company who have contractual rights to participate
in such registration (the "OTHER HOLDERS") electing to include (but not being
entitled to demand inclusion of) securities in such registration (it being
understood that such lead managing Underwriter shall have the right to eliminate
entirely the participation in such registration of the Company and such Other
Holders).
(iv) The Company shall be entitled to postpone, for a reasonable period of
time not in excess of ninety (90) days, the filing of a Registration Statement
of the Company determines, in the good faith exercise of its reasonable business
judgement, that such registration and offering could materially adversely affect
the BONA fide financing plans of the Company or would require the disclosure of
information, the premature disclosure of which could materially adversely affect
the Company or any transaction under consideration by the Company; PROVIDED,
HOWEVER, that the Company shall not be entitled to such postponement more than
once in any 360-day period.
(C) PIGGYBACK REGISTRATION RIGHTS. (i) If the Company proposes to file a
Registration Statement in respect to any of its equity securities (a "PRIMARY
REGISTRATION") (other than a Registration Statement (a) on Form S-4 or Form S-8
or any successor forms thereto, (b) filed solely in connection with an offering
made solely to employees of the Company, (c)filed solely in connection with a
merger, exchange offer or similar transaction or (d) in connection with the
acquisition of assets or businesses by the Company or its subsidiaries) and a
Registration Statement is not otherwise effective with respect to the Preferred
Shares issuable upon exchange of the Series B Preferred Units, then the Company
shall promptly give written notice of such proposed filing to the Holders of
Registrable Securities and such notice shall offer such Holders the opportunity
to register such number of shares of Registrable Securities as each such Holder
may request (a "PIGGYBACK REGISTRATION"). The Company shall use all commercially
reasonable efforts to include or to cause the managing Underwriter or
Underwriters of a proposed Underwritten Offering to permit the Registrable
Securities requested to be included in a Piggyback Registration to be included
on the same terms and conditions as any similar securities of the Company
included therein.
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(ii) Any Holder requesting inclusion of Registrable Securities pursuant to
this SECTION 2(C) may, prior to the effective date of the Registration Statement
relating to such registration, revoke such request by delivering written notice
of such revocation to the Company and the managing Underwriter, if any, at least
two (2) business days prior to the effective date of the registration; PROVIDED,
HOWEVER, that if the Company, in consultation with its financial and legal
advisors, determines that such revocation would materially delay the
registration or otherwise require a recirculation of the Prospectus contained in
the Registration Statement, then such Holder shall have no such right to revoke
its request. If the withdrawal of any Registrable Securities would allow, within
the marketing limitations set forth above, the inclusion in the underwriting of
a greater number of shares of Registrable Securities, then, to the extent
practicable and without delaying the underwriting, the Company shall offer to
the Holders an opportunity to include additional shares of Registrable
Securities, which additional Registrable Securities shall be included in such
registration pro rata among the holders of Registrable Securities requesting
such registration and the holders of such other securities on the basis of the
number of securities requested for inclusion in such registration by each such
holder. Any Registrable Securities excluded or withdrawn from such underwriting
shall also be withdrawn from registration and shall not be transferred in a
public distribution prior to ninety (90) days after the effective date of the
Registration Statement relating thereto, or such shorter period of time as the
managing Underwriter may require.
(iii) The Company shall have the right to terminate or withdraw any
registration initiated by it under this SECTION 2(C) prior to the effectiveness
of such registration whether or not any Holder has elected to include securities
in such registration.
(iv) The Company shall cause the lead managing Underwriter of a proposed
Underwritten Offering to permit Holders of Registrable Securities requested to
be included in the registration for such offering to include all such
Registrable Securities on the same terms and conditions as any other securities
of the Company included therein. Notwithstanding the foregoing, in any of the
securities registered pursuant to the Piggyback Registration are to be sold in a
firm commitment Underwritten Offering and the lead managing Underwriter advises
the Holders in writing that in its opinion the total number or dollar amount of
Registrable Securities proposed to be sold in such offering is such as to
materially and adversely affect the success of such offering, then the Company
will include in such registration, first, the securities that the Company
proposes to sell and, second, the Registrable Securities of the Holders and the
securities to be sold for the account of Other Holders, PRO RATA among such
holders, taken together, on the basis of the number of securities requested to
be included by all such holders participating in such offering (it being
understood that such lead managing Underwriter shall have the right to eliminate
entirely the participation in such registration of all such holders).
(D) EXPENSES. The Company shall pay all Registration Expenses in connection
with any registration undertaken pursuant to SECTIONS 2(A), 2(B) and 2(C)
hereof. The Holder shall pay all brokerage and sales commissions, fees and
disbursements of the Holder's counsel (other than as expressly otherwise
provided herein), underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Registration Statement.
3. HOLD-BACK AGREEMENT.
Each Holder of Registrable Securities shall agree not to effect any public
sale or distribution of securities of the Company of the same or similar class
or classes of the securities included in the Registration Statement or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 or Rule 144A under the Securities Act,
during such periods as reasonably requested by the Underwriter in an
underwritten public offering by the Company; PROVIDED that no Holder shall be so
obligated under this SECTION 3 in the event that any such period requested by
the Underwriter is longer than ninety (90) days and or occurs more than once in
any twelve (12) month period.
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4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to a
Registration Statement pursuant to SECTIONS 2(A), 2(B) and 2(C) hereof, the
Company shall use all commercially reasonable efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities Act
to permit the sale of such Registrable Securities by the Holder in accordance
with its intended method or methods of distribution, and the Company shall:
(A) prepare and file with the SEC, as specified in SECTION 2 hereof, a
Registration Statement, 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 SEC to be filed therewith, and use all
commercially reasonable efforts to cause such Registration Statement to become
effective and remain effective in accordance with SECTION 2 hereof;
(B) subject to SECTION 4(J) hereof, prepare and file with the SEC such
amendments and post-effective amendments to each such Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period; cause each such Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
or any similar rule that may be adopted under the Securities Act; and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling
Holder thereof;
(C) furnish to the Holder of Registrable Securities without charge, as many
copies of each Prospectus, including each or summary prospectus preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities; the Company consents to the use
of any such Prospectus, including each preliminary Prospectus, by the Holder of
Registrable Securities, if any, in connection with the offering and sale of the
Registrable Securities covered by any such Prospectus;
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(D) use all commercially reasonable efforts to register or qualify, or
obtain exemption from registration or qualification for, all Registrable
Securities by the time the applicable Registration Statement is declared
effective by the SEC under all applicable state securities or "blue sky" laws of
such jurisdictions as the Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing, keep each such
registration or qualification or exemption effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
Holder 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 (i) 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 4(D), (ii)
subject itself to taxation in any such jurisdiction, or (iii) submit to the
general service of process in any such jurisdiction;
(E) notify the Holder of Registrable Securities promptly and, if requested
by such Holder, confirm such advice in writing (i) when a Registration Statement
has become effective and when any post-effective amendments and supplements
thereto become effective, (ii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
and (iii) of the happening of any event during the period a Registration
Statement is effective as a result of which such Registration Statement or the
related Prospectus contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (iv) of the Company's receipt of any
notification of the suspension of the qualification of any Registrable
Securities covered by a Registration Statement for sale in any jurisdiction; in
the event the Company shall give notice as to the occurrence of any event
described SECTIONS 4(E)(II), 4(E)(III) or 4(E)(IV) hereof, the Company shall
extend the period during which such Registration Statement shall be maintained
effective by the number of days during the period from and including the date of
the giving of such notice to the date the Company delivers notice that
disposition may be made;
(F) furnish to the Holder of Registrable Securities copies of any request
by the SEC or any state securities authority of amendments of supplements to a
Registration Statement and Prospectus or for additional information;
(G) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(H) provide to the Holders, at no cost to such Holders, a copy of the
Registration Statement and any amendment thereto with respect to Registrable
Securities, each Prospectus contained in such Registration Statement or
post-effective amendment and any amendment or supplement thereto and such other
documents as such Holders may reasonably request in order to facilitate the
disposition of their Registrable Securities covered by such Registration
Statement; the Company consents to the use of each such Prospectus and any
supplement thereto by such Holders in connection with the offering and sale of
their Registrable Securities covered by such Registration Statement or any
amendment thereto;
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(I) upon the occurrence of any event contemplated by SECTION 4(E)(III)
hereof, immediately notify all Holders of the Registrable Securities affected by
such event of such event and prepare and provide to such Holders a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference and file any required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will 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, in the light of the circumstances under which
they were made, not misleading;
(J) make available for inspection by representatives of the Holder of the
Registrable Securities and any Underwriters participating in any disposition
pursuant to a Registration Statement and any special counsel or accountant
retained by such Holders or Underwriters, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
respective officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
special counsel or accountant in connection with a Registration Statement;
PROVIDED, HOWEVER, that such records, documents or information which the Company
determines, in good faith, to be confidential and notifies such representatives,
Underwriters ' special counsel or accountants are confidential shall not be
disclosed by the representatives, underwriters special counsel or accountants
unless (i) the disclosure of such records, documents or information is necessary
to avoid or correct a misstatement or omission in a Registration Statement, (ii)
the release of such records, documents or information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, or (iii) such
records, documents or information have been generally made available to the
public;
(K) use all commercially reasonable efforts (including, without limitation,
seeking to cure any deficiencies (within the Company's control) cited by such
exchange or market in the Company's listing application) to list all Registrable
Securities on The New York Stock Exchange (unless the Company qualifies and
chooses to list all Registrable Securities on the American Stock Exchange or The
NASDAQ National Market, in which event the Company shall use its best efforts to
list all Registrable Securities on the American Stock Exchange or The NASDAQ
National Market);
(L) provide a CUSIP number for all Registrable Securities, not later than
the effective date of the Registration Statement;
(M) use all commercially reasonable efforts to comply with the Securities
Act and the Exchange Act in connection with the offer and sale of the
Registrable Securities to be sold pursuant to a Registration Statement, and,
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering at least twelve (12) months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
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(N) provide and cause to be maintained a transfer agent for all Registrable
Securities covered by such Registration Statement from and after a date not
later than the effective date of such Registration Statement;
(O) cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing their Registrable Securities to be sold
pursuant to a Registration Statement and not bearing any Securities Act legend;
and enable certificates for such Registrable Securities be issued for such
numbers of shares and registered in such names as such Holders may reasonably
request at least two (2) business days prior to any sale of their Registrable
Securities;
(P) enter into customary agreements (including an underwriting agreement or
securities sales agreement, if any, in customary form) containing such
representations and warranties to the Holders of such Registrable Securities and
the Underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings as may be
reasonably requested by them and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities; and
(Q) furnish to each registering Holder of Registrable Securities and to
each Underwriter, if any, a signed counterpart, addressed to such registering
Holder of Registrable Securities or Underwriter, of (i) an opinion or opinions
of counsel to the Company and (ii) a comfort letter or comfort letters from the
Company's independent public accountants (to the extent permitted by the
standards of the American Institute of Certified Public Accountants), each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the Holders of a majority of
the Registrable Securities included in such offering or the managing Underwriter
or Underwriters therefor reasonably request.
The Company may require the Holder of Registrable Securities to furnish to
the Company such information regarding the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing.
The Holders agree that, upon receipt of any notice from the Company of the
happening of any event of the kind described in SECTION 4(E)(III) hereof, such
Holder will immediately discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holders' receipt of the copies
of the supplemented or amended Prospectus, if so directed by the Company, such
Holders will deliver to the Company (at the expense of the Company) all copies
in its possession, other than permanent file copies then in such Holders'
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
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5. BLACK-OUT PERIOD.
(A) Following the effectiveness of a Registration Statement (and the
filings with any state securities commissions), the Company may direct the
Holder to suspend sales of the Registrable Securities for such times as the
Company reasonably may determine is necessary and advisable, including the
following events: (i) an underwritten primary offering by the Company where the
Company is advised by the underwriters for such offering that sale of
Registrable Shares under the Registration Statement would have a material
adverse effect on the primary offering, or (ii) pending negotiations relating
to, or consummation of, a transaction or the occurrence of an event (x) that
would require additional disclosure of material information by the Company in
the Registration Statement (or such filings), (y) as to which the Company has a
bona fide business purpose for preserving confidentiality or (z) which renders
the Company unable to comply with SEC requirements, in each case under
circumstances that would make it impractical or inadvisable to cause the
Registration Statement (or such filings) to become effective or to promptly
amend or supplement the Registration Statement on a post-effective basis, as
applicable.
(B) In the case of an event which causes the Company to suspend the
effectiveness of a Registration Statement (a "SUSPENSION EVENT"), the Company
may give notice (a "SUSPENSION NOTICE") to the Holder to suspend sales of the
Registrable Shares so that the Company may correct or update the Registration
Statement (or such filings); PROVIDED, HOWEVER, that such suspension shall
continue only for so long as the Suspension Event or its effect is continuing.
The Holder agrees that it will not effect any sales of the Registrable Shares
pursuant to such Registration Statement (or such filings) at any time after it
has received a Suspension Notice from the Company. If so directed by the
Company, Holder will deliver to the Company all copies of the Prospectus
covering the Registrable Shares held by them at the time of receipt of the
Suspension Notice. The Holder may recommence effecting sales of the Registrable
Shares pursuant to the Registration Statement (or such filings) following
further notice to such effect (an "END OF SUSPENSION NOTICE") from the Company,
which End of Suspension Notice shall be given by the Company promptly following
the conclusion of any Suspension Event and the effectiveness of any required
amendment or supplement to be the Registration Statement.
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(C) Notwithstanding the provisions of SECTIONS 5(A) and 5(B) to the
contrary: (i) no Holder shall be subject to the provisions of SECTIONS 5(A) and
5(B) hereof for a period of time in excess of ninety (90) days; and (ii) no
Suspension Notice may be given more than once in any twelve (12) month period.
Moreover, notwithstanding SECTIONS 2(A), 2(B) and 2(C) hereof, if the Company
shall give a Suspension Notice pursuant to this SECTION 5, the Company agrees it
shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from the date of the giving of the Suspension Notice to and including the
date when the Holders shall have received the End of Suspension Notice and
copies of the supplemented or amended Prospectus necessary to resume sales.
6. RULE 144 AND RULE 144A.
For so long as the Company is subject to the reporting requirements of
Section 13 or 15 of the Exchange Act, the Company covenants that it will timely
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Securities, make
publicly available other information so long as necessary to permit sales
pursuant to Rule 144 under the Securities Act. The Company also covenants that
it will provide the information required pursuant to Rule 144A(d)(4) under the
Securities Act upon the request of any Holder of Registrable Securities and it
will take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time, to enable such
Holder to sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, (b)
Rules 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rule or regulation hereafter adopted by the SEC. 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.
7. INDEMNIFICATION.
(A) The Company will indemnify each Registering Holder, each such Holder's
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses,
damages, liabilities and expenses (including reasonable legal expenses), arising
out of or based on any untrue statement (or alleged untrue statement) of a
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material fact contained in any Registration Statement or prospectus relating to
such Holders' Registrable Securities, or any amendment or supplement thereto, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that the Company will not indemnify and will not
be liable to any Registered Holder in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on (i) any
untrue statement or omission or alleged untrue statement or omission, made in
conformity with and in reliance upon information furnished in writing to the
Company by such Holder or by an underwriter for inclusion therein or (ii) such
Holder's failure to deliver an amended or supplemental Prospectus provided by
the Company, if such claim, loss, damage, liability or expense would not have
arisen had such delivery occurred.
(B) Each Registering Holder will indemnify the Company, each of its trust
managers and each of its officers (including each trust manager and officer who
signs the Registration Statement), each underwriter, if any, of the Company's
securities covered by such Registration Statement, and each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages, liabilities and expenses
(including reasonable legal fees and expenses) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such Registration Statement or prospectus, or any amendment or supplement
thereto, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such Registration Statement or prospectus, in reliance upon
and in conformity with information furnished in writing to the Company by such
Holder for inclusion therein.
(C) Each party entitled to indemnification under this SECTION 7 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought. However,
the failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which it may have to the Indemnified Party
pursuant to the provisions of this SECTION 7, except to the extent of the actual
damages suffered by such delay in notification. The Indemnifying Party shall
assume the defense of such action. including the employment of counsel, which
shall be chosen by the Indemnifying Party and shall be reasonably satisfactory
to the Indemnified Party, and payment of expenses in connection with such
defense. The Indemnified Party shall have the right to employ its own counsel in
any such case, but the legal fees and expenses of such counsel shall be at the
expense of the Indemnified Party unless (i) the employment of such counsel shall
have been authorized in writing by the Indemnifying Party, (ii) the Indemnifying
Party shall not have assumed the defense of such action within a reasonable
period of time, or (iii) the Indemnified Party shall have been reasonably
72
advised by its counsel that there may be defenses available to it or them which
are different from or additional to those available to Indemnifying Party (in
which case the Indemnifying Party shall not have the right to direct the defense
of such action on behalf of the Indemnified Party), in any of which events such
fees and expenses shall be borne by the Indemnifying Party. No Indemnifying
Party in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to the entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to each such Indemnified Party of a release
from all liability in respect to such claim or litigation.
(D) If the indemnification provided for in this SECTION 7 is unavailable to
a party that would have been an Indemnified Party under this SECTION 7, then
each party that would have been an Indemnifying Party hereunder shall, in lieu
of indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such claims, losses, damages,
liabilities and expenses in such proportion as is appropriate to reflect tile
relative fault of the Indemnifying Party on the one hand and such Indemnified
Party on the other in connection with the statement or omission which resulted
in such claims, losses, damages, liabilities and expenses, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
related to information supplied by the Indemnifying Party or the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Registering Holder agree that it would not be just and equitable if
contribution pursuant to this SECTION 7 were determined by pro rata allocation
or by any other method of allocation that fails to take account of the equitable
considerations referred to above in this SECTION 7(D). For purposes of this
SECTION 7(D), each person, if any, who controls the Holder within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as
the Holder and each trust manager of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall have the
same rights to contribution as the Company.
(E) 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.
(F) In no event shall any Registering Holder be liable for any claims,
losses, damages, liabilities or expenses pursuant to this SECTION 7 in excess of
the net proceeds to such Holder for the sale of such Holder's Registrable
Securities pursuant to a Registration.
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8. MISCELLANEOUS.
(A) NO INCONSISTENT AGREEMENT. The Company has not entered into nor will
the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holder of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holder do not in any way conflict with and are not
inconsistent with the rights granted to the holder of the Company's other issued
and outstanding securities under any such agreements.
(B) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
provisions of this sentence, 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 Holders holding at least 51% of
the then outstanding Registrable Securities.
(C) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to the Contributors, at the address or telecopier number set forth below its
signature hereon, and thereafter at such other address or telecopier number,
notice of which is given in accordance with the provisions of this SECTION 8(C),
(ii) if to an assignee or transferee of the Contributors, to such address or
telecopier number such assignee or transferee shall have provided to the
Company, and (iii) if to the Company, at Three Greenway Plaza, Suite 1300,
Houston, Texas 77046, Attention: Richard J. Campo, telecopier number (713)
354-2599, and thereafter at such other address or telecopier number, notice of
which is given in accordance with the provisions of this SECTION 8(C), with a
copy to Locke Liddell & Sapp LLP, 2001 Ross Avenue, Suite 3000, Dallas, Texas
75201-8001, Attention Bryan L. Goolsby, telecopier number (214) 849-5599. All
such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five (5) business days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to an air courier guaranteeing overnight delivery.
(D) SUCCESSORS. The rights and obligations of any Holder hereunder may be
assigned to any other Holder. This Agreement shall inure to the benefit of and
be binding upon the permitted successors and assigns of the Company and the
Holder.
(E) 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.
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(F) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(G) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT
TO THE CONFLICTS OF LAW PROVISIONS THEREOF. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(H) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(I) SPECIFIC PERFORMANCE. 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 complete specific performance of the obligations of any other party under
this Agreement to accordance with the terms and conditions of this Agreement in
any court of the United States or any State thereof having jurisdiction.
(J) 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 the subject
matter hereof.
(K) ATTORNEYS' FEES. If the Company or any Holder brings an action to
enforce its rights under this Agreement, the prevailing party in the action
shall be entitled to recover its costs and expenses, including without
limitation, reasonable attorneys' fees, incurred in connection with such action,
including any appeal of such action.
(L) AUTHORITY; BINDING EFFECT. Each party hereto represents and warrants
that it has the fall legal right, power and authority to execute this Agreement,
that this Agreement has been duly authorized, executed and delivered on behalf
of such party and constitutes a valid and binding agreement of such party
enforceable in accordance with its terms.
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(M) ADDITIONAL SHARES. The parties agree that any Registration Statement
may register shares that are not Registrable Securities but are equity
securities of the Company held by others, or to be issued to others, provided
the same shall not limit or affect the Company's obligations to Holders with
respect to Registrable Securities hereunder.
(N) LIMITATION OF LIABILITY OF SHAREHOLDERS AND OFFICERS OF THE COMPANY.
ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE COMPANY WHICH MAY ARISE AT ANY
TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR LIABILITY WHICH MAY BE INCURRED
BY IT PURSUANT TO ANY OTHER INSTRUMENT, TRANSACTION OR UNDERTAKING CONTEMPLATED
HEREBY SHALL BE SATISFIED, IF AT ALL, OUT OF THE COMPANY'S ASSETS ONLY. NO SUCH
OBLIGATION OR LIABILITY SHALL BE PERSONALLY BINDING UPON, NOR SHALL RESORT FOR
THE ENFORCEMENT THEREOF BE HAD TO, THE PROPERTY OF ANY OF ITS SHAREHOLDERS
(SOLELY AS A RESULT OF THEIR STATUS AS SHAREHOLDERS), TRUST MANAGERS, OFFICERS,
EMPLOYEES OR AGENTS, REGARDLESS OR WHETHER SUCH OBLIGATIONS OR LIABILITY IS IN
THE NATURE OF CONTRACT, TORT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THIS
SECTION 8(n) SHALL NOT IN ANY WAY AFFECT OR LIMIT ANY OBLIGATION OR LIABILITY OF
ANY HOLDER UNDER THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CAMDEN PROPERTY TRUST
By: /S/ RICHARD J. CAMPO
---------------------------------------------------
Name: Richard J. Campo
Title: Chairman and Chief Executive Officer
BELCREST REALTY CORPORATION
By: /S/ THOMAS E. FAUST, JR.
---------------------------------------------------
Name: Thomas E. Faust, Jr.
Title: Executive Vice President
Address: c/o Eaton Vance Management
24 Federal Street
Boston, Massachusetts 02110
Attention: Alan Dynner
Telecopier: (617) 338-8054
BELAIR REAL ESTATE CORPORATION
By: /S/ THOMAS E. FAUST, JR.
---------------------------------------------------
Name: Thomas E. Faust, Jr.
Title: Executive Vice President
Address: c/o Eaton Vance Management
24 Federal Street
Boston, Massachusetts 02110
Attention: Alan Dynner
Telecopier: (617) 338-8054