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EXHIBIT 10.28
COMMON OP UNITS
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-Up Agreement (the "Agreement") is
entered into as of April 30, 1996 among Sun Communities, Inc., a Maryland
corporation (the "Company") and the parties set forth in the signature pages
hereto (severally a "New Investor" and jointly the "New Investors").
RECITALS
A. Sun Communities Operating Limited Partnership, a Michigan
limited partnership (the "Partnership"), Sun GP L.L.C., a Michigan limited
liability company ("SGP"), the entities listed on the attached Annex A (the
"Project Partnerships"), certain other entities and the New Investors have
entered into certain Contribution Agreements pursuant to which the Company has
agreed to issue certain common limited partnership interests in the Partnership
("Common OP Units") to the New Investors.
B. The Second Amended and Restated Limited Partnership Agreement
dated April 30, 1996 of the Partnership (the "Partnership Agreement") provides
that the Company, in its capacity as general partner of the Partnership, will,
subject to certain limitations, exchange one share of the Company's common
stock ("Common Stock") for one (1) Common OP Unit.
C. The Company, Lehman Brothers, Inc., and certain other holders
of Common Stock and Common OP Units (the "Original Investors") previously
entered into a Registration Rights and Lock-Up Agreement dated as of December
15, 1993 (the "Original Registration Rights Agreement") pursuant to which the
Company granted certain rights to the Original Investors.
D. The Company and certain holders of Common OP Units (the "MLVA
Investors") previously entered into a Registration Rights and Lock-Up Agreement
dated as of April 7, 1994 (the "MLVA Registration Rights Agreement") pursuant
to which the Company granted certain rights to the MLVA Investors.
E. The Company and certain holders of Common OP Units (the "Scio
Investors") previously entered into a Registration Rights and Lock-Up Agreement
dated as of March 30, 1995 (the "Scio Registration Rights Agreement") pursuant
to which the Company granted certain rights to the Scio Investors.
F. The Company and a certain holder of Common OP Units (the
"Smokler Investor") previously entered into a Registration Rights and Lock-Up
Agreement dated as of May 1, 1995 (the "Smokler Registration Rights Agreement")
pursuant to which the Company granted certain rights to the Smokler Investor.
G. The Company and certain holders of limited partnership
interests in the Partnership known as "Preferred OP Units" (the "Preferred OP
Units") have entered into a Registration Rights and Lock-Up Agreement dated as
of April 30, 1996 (the "Preferred OP Units Registration Rights Agreement")
pursuant to which the Company granted certain rights to such holders (the
"Preferred OP Units Holders").
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NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the
following definitions:
"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly, controls, is controlled by or under common control with
such Person.
"Existing Investors" means the Preferred OP Units Holders, the Smokler
Investor, the Scio Investors, the MLVA Investors and the Original Investors.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or a government or any
department or agency thereof.
"Registrable Securities" means (i) the Common Stock issued or issuable
upon exchange of the Common OP Units, [(ii) the Common Stock issued or issuable
upon exchange of Common OP Units issued or issuable upon the conversion of the
Preferred OP Units,] (iii) the Common Stock issued or issuable upon exercise of
stock options, (iv) the Common Stock issued prior to or contemporaneously with
the Company's initial public offering of Common Stock, and (v) any Common Stock
issued or issuable with respect to the Common Stock referred to in clauses (i)
through (iv), inclusive, above by way of stock dividend, stock split or in
connection with a combination of stock, recapitalization, merger, consolidation
or other reorganization. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when they have been sold to
the public pursuant to an offering registered under the Securities Act or sold
to the public in compliance with Rule 144 under the Securities Act (or any
similar rule then in force). For purposes of this Agreement, (i) Registrable
Securities shall include those Registrable Securities held by Existing
Investors, New Investors, and their respective successors and assigns, and (ii)
a Person will be deemed to be a holder of Registrable Securities whenever such
Person has the right to acquire directly or indirectly such Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected.
"Registration Rights Agreements" means this Agreement, the Smokler
Registration Rights Agreement, the Scio Registration Rights Agreement, the MLVA
Registration Rights Agreement, and the Original Registration Rights Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Water Oak" means Water Oak Ltd., a Florida limited partnership.
"Water Oak Registration" means the registration rights granted to Water
Oak pursuant to Section 1 (b) of the Original Registration Rights Agreement.
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2. DEMAND REGISTRATIONS.
(a) From May 1, 1998 until April 30, 2003, subject to the terms and
conditions set forth herein, each of the New Investors may request registration
under the Securities Act of all or part of his Registrable Securities (each, a
"Demand Registration"). Any request (a "Registration Request") for a Demand
Registration shall specify (i) the number of Registrable Securities requested
to be registered (but not less than 20,000 shares of Common Stock), and (ii)
whether or not such Demand Registration should be filed pursuant to Rule 415 of
Regulation C promulgated under the Securities Act (or any successor rule) (a
"Shelf Registration"); provided, however, that the Company may elect, at its
option, to file for a Shelf Registration. Within ten days after the date of
sending of such request, the Company will give written notice of such requested
registration to all other holders of Registrable Securities, if any, and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the date of sending of the Company's notice.
(b) The holders of Registrable Securities will be entitled to
request six (6) Demand Registrations, each of which may be an underwritten
registration or a Shelf Registration to remain effective for up to six months;
provided, however, that none of the New Investors shall be entitled to request
an additional Demand Registration as long as the Company maintains an effective
Shelf Registration covering all Registrable Securities held by the New
Investors or their respective transferees until April 30, 2003 and otherwise
complies with the terms of this Agreement. Demand Registrations requested
under the Original Registration Rights Agreement, the MLVA Registration Rights
Agreement, the Scio Registration Rights Agreement and the Smokler Registration
Rights Agreement shall be included in the definition of Demand Registrations
for purposes of determining the number of Demand Registrations permitted under
this Section 2(b) as long as any of the New Investors has the right to include
his Registrable Securities in such registrations.
(c) The Company will pay all "Registration Expenses" (as defined in
Section 8 of this Agreement) in connection with the Demand Registrations.
(d) A registration will not count as one of the Demand
Registrations unless the holders of Registrable Securities are able to register
and in fact sell at least 75% of the Registrable Securities requested to be
included in such registration.
(e) Until April 30, 2003, the Company will not include in any
Demand Registration any securities which are not Registrable Securities without
the prior written consent of the holders of a majority of the shares of
Registrable Securities included in such registration. If a Demand Registration
or a Water Oak Registration is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities requested
to be included in such offering, exceeds the number of Registrable Securities
and other securities, if any, which can be sold in an orderly manner in such
offering within a price range acceptable to Water Oak or the holders of a
majority of the Registrable Securities initially requesting registration, as
the case may be, the Company will (i) in the case of a Demand Registration,
include in such registration prior to the inclusion of any securities which are
not Registrable Securities the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold in an orderly
manner within the price range of such offering, pro rata among the respective
holders thereof on the basis of the amount of Registrable
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Securities owned by each such holder and (ii) in the case of a Water Oak
Registration, the Company will include in such registration first, the number
of Water Oak Shares requested to be included and second, the number of
Registrable Securities which in the written opinion of such underwriters can be
sold in an orderly manner within the price range of such offering, pro rata
among the respective holders thereof on the basis of the amount of Registrable
Securities owned by each such holder.
(f) In the case of an underwritten offering, the holders of a
majority of the then outstanding shares of Registrable Securities or, in the
case of a Water Oak Registration, Water Oak, will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
Company's approval which will not be unreasonably withheld.
3. ADDITIONAL SHELF REGISTRATIONS.
(a) In addition to his rights set forth in Section 2, each of the
New Investors may request in writing that the Company register all or part of
his Registrable Securities pursuant to an additional Shelf Registration (an
"Additional Shelf Registration") at any time from May 1, 1998 (the "Shelf
Request Date") through April 30, 2003, provided that the Company shall not be
required to effect more than one Additional Shelf Registration in any calendar
year pursuant to the Registration Rights Agreements. Any request for an
Additional Shelf Registration shall specify the number of Registrable
Securities to be registered (but not less than the lesser of 10,000 shares of
Common Stock or all of such requesting New Investor's Registrable Securities).
Within ten days after the sending of such request, the Company will give
written notice of such requested Additional Shelf Registration to all other
holders of Registrable Securities, if any, and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the date
of sending of the Company's notice.
(b) Additional Shelf Registrations shall not count as Demand
Registrations; provided, however, that none of the New Investors shall be
entitled to request an Additional Shelf Registration as long as the Company
maintains an effective Shelf Registration covering all Registrable Securities
held by any of the New Investors or their respective transferees until April
30, 2003 and otherwise complies with the terms of this Agreement.
(c) The Company will pay all Registration Expenses in connection
with the Additional Shelf Registrations.
4. ADDITIONAL SHELF REGISTRATIONS AT NEW INVESTOR'S COST.
(a) In addition to his rights set forth in Sections 2 and 3, each
of the New Investors may request in writing that the Company register all or
part of his Registrable Securities pursuant to an additional Shelf Registration
(an "Investor-Paid Shelf Registration") at any time after the fifth anniversary
of the Shelf Request Date, provided that the Company shall not be required to
effect more than one Investor-Paid Shelf Registration in any calendar year
pursuant to this Agreement. Any request for an Investor-Paid Shelf
Registration shall specify the number of Registrable Securities to be
registered (but not less than the lesser of 100,000 shares of Common Stock or
all of the New Investor's Registrable Securities).
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(b) Investor-Paid Shelf Registrations shall not count as Demand
Registrations; provided, however, that none of the New Investors shall be
entitled to request an Investor-Paid Shelf Registration during any calendar
year as long as the Company maintains an effective Shelf Registration covering
all Registrable Securities held by any of the New Investors or their respective
transferees until the end of such calendar year.
(c) Each of the New Investors and any transferees of the New
Investors participating in the Investor-Paid Shelf Registration will pay all
Registration Expenses in connection with such Investor-Paid Shelf Registration
in proportion to the amount of Registrable Securities held by each New Investor
or transferee of a New Investor participating in the Investor-Paid Shelf
Registration.
(d) Notwithstanding anything to the contrary, the Company shall not
be required to register any Registrable Securities pursuant to an Investor-Paid
Shelf Registration if the Company delivers an opinion letter from its counsel
stating that all of the Registrable Securities requested to be registered may
be sold to the public in compliance with Rule 144 under the Securities Act (or
any similar rule then in force).
5. PIGGYBACK REGISTRATIONS.
(a) Until that date that is five (5) years after the date of this
Agreement, if the Company proposes to register any of its securities under the
Securities Act (other than pursuant to (i) a Demand Registration or an
Additional Shelf Registration pursuant to the Registration Rights Agreements,
(ii) a registration on Form S-4 or any successor form, (iii) an offering of
securities in connection with an employee benefit, stock dividend, stock
ownership or dividend reinvestment plan), and the registration form to be used
may be used for the registration of Registrable Securities (a "Piggyback
Registration"), the Company will give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration (each a
"Piggyback Notice") and, subject to Sections 5(c) and 5(d) below, the Company
will include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within 15
days after the date of sending of the Company's notice (the "Included
Registrable Securities"); provided, however, that, at the Company's option, the
Company may file a separate registration statement for, and with respect to,
Included Registrable Securities in satisfaction of the Company's obligation
hereunder; provided, further, that the price per share under and terms of the
separate registration statement shall be no less favorable than the price per
share and terms of the Piggyback Registration.
(b) The Company will pay all Registration Expenses in connection
with the Piggyback Registrations.
(c) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in an
orderly manner within a price range acceptable to the Company, the Company will
include in such registration (i) first, the securities the Company proposes to
sell and (ii) second, the Registrable Securities requested to be included in
such Registration and any other securities requested to 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 shares owned by each such holder.
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(d) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities other than the
holders of Registrable Securities, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
initially requesting such registration, the Company will include in such
registration first, all of the securities requested to be included therein by
the holders initially requesting such registration and second, the Registrable
Securities requested to be included in such registration pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by each such holder.
(e) In the case of an underwritten Piggyback Registration, the
Company will have the right to select the investment banker(s) and manager(s)
to administer the offering.
6. HOLDBACK AGREEMENTS. The Company agrees (a) not to effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
90-day period beginning on the effective date of any underwritten Demand
Registration (except pursuant to (i) registrations on Form S-8 or any successor
form, (ii) registrations on Form S-4 or any successor form, and (iii)
registrations of securities in connection with the Company's dividend
reinvestment plan on form(s) applicable to such securities), unless the
underwriters managing the registered public offering otherwise agree, and (b)
to use its reasonable efforts to obtain agreements from its officers, directors
and affiliated stockholders (including, without limitation, each holder of more
than 5% of the outstanding Common Stock), to agree not to effect any public
sale or distribution (including sales pursuant to Rule 144) of any such
securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
7. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective and, in
the case of an Additional Shelf Registration, remain effective for a period of
ninety days (provided that before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company will furnish to the
counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed to
be filed, which documents will be subject to the review of such counsel);
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period required by the intended method
of disposition or to describe the terms of any offering made from an effective
Shelf Registration, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
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statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
as any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller (provided that the Company will 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 7(d), (ii) subject itself
to taxation in any such jurisdiction, (iii) consent to general service of
process in any such jurisdiction, or (iv) qualify such Registrable Securities
in a given jurisdiction where expressions of investment interest are not
sufficient in such jurisdiction to reasonably justify the expense of
qualification in the jurisdiction or where such qualification would require the
Company to register as a broker or dealer in such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any material fact necessary to make the statements
therein not misleading, and, at the request of any such seller, the Company
will prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and to be qualified for trading on each system on which similar
securities issued by the Company are from time to time qualified;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement and
thereafter maintain such a transfer agent and registrar;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the shares of Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(i) make available for inspection by any underwriter participating
in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors,
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employees and independent accountants to supply all information reasonably
requested by any such underwriter, attorney, accountant or agent in connection
with such registration statement:
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11 (a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in
its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) make available appropriate management personnel for
participation in the preparation and drafting of such registration or
comparable statement, for due diligence meetings;
(m) provided the registration statement covers a number of shares
of Common Stock at least equal to 15% of the then issued and outstanding shares
of Common Stock, make available appropriate management personnel for
participation in "road show" meetings;
(n) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the company will use its reasonable best efforts to promptly
obtain the withdrawal of such order; and
(o) use reasonable efforts to obtain a cold comfort letter from the
Company's independent public accountants addressed to the selling holders of
Registrable Securities in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request.
Each of the New Investors agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 7(e) or
(n) hereof, each of the New Investors will forthwith discontinue disposition of
shares of Common Stock pursuant to a Demand Registration or a Piggyback
Registration or an Investor-Paid Shelf Registration until receipt of the copies
of an appropriate supplement or amendment to the prospectus under Section 7(e)
hereof or until the withdrawal of such order under Section 7(n) hereof. If any
such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if, in its sole
and exclusive judgment, such holder is or might be deemed to be a controlling
person of the Company, such holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to such
holder and presented to the Company in writing, to the effect that the holding
by such holder of such securities is not to be construed as a recommendation by
such holder of the investment quality of the Company's securities covered
thereby and that such
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holding does not imply that such holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such holder by name or otherwise is not required by the Securities Act or
any similar Federal statute then in force, the deletion of the reference to
such holder; provided that with respect to this clause (ii) such holder shall
furnish to the Company an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Company.
8. REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this agreement, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding underwriting
discounts and commissions which shall be paid pro rata by the selling
stockholders out of the proceeds of the offering) and other Persons retained by
the Company (all such expenses being herein called "Registration Expenses"),
will be borne by the Company except with respect to Water Oak Registrations and
Investor-Paid Shelf Registrations. The Company will pay all Registration
Expenses in connection with the Water Oak Registrations requested in every
other year commencing on December 8, 1994, and Water Oak will pay all
Registration Expenses applicable to Registrable Securities held by Water Oak in
connection with the Water Oak Registrations requested in the alternate years.
9. RESTRICTIONS ON TRANSFER OF STOCKHOLDER SHARES.
(a) Without the prior written consent of the Company, each of the
New Investors agrees not to, directly or indirectly, offer, sell, contract to
sell or otherwise dispose of (or announce any offer, sale, contract of sale or
other disposition)("Transfer") any shares of Common Stock, or any securities
convertible into or exchangeable for shares of Common Stock, including, without
limitation, interests in the Partnership (all of such securities being
hereinafter referred to herein as "Restricted Securities"), until December 8,
1996.
(b) The restrictions contained in this Section 9 will not apply
with respect to any Transfer of the Restricted Securities to Milton M. Shiffman
or Gary A. Shiffman (or to a member of the Family Group of any of them) by any
New Investor or by any New Investor pursuant to applicable laws of descent and
distribution or among such New Investor's Family Group or Affiliates
(collectively referred to herein as "Permitted Transferees"); provided that the
restrictions contained in this Section 9 shall continue to be applicable to the
Restricted Securities after any such Transfer and provided further that the
transferees of such Restricted Securities prior to any Transfer shall have
agreed in writing to be bound by the provisions of this Agreement affecting the
Restricted Securities so transferred. "Family Group" means, with respect to
any New Investor, the New Investor's spouse and descendants (whether natural or
adopted) and any trust for the benefit of the New Investor and/or the New
Investor's spouse and/or descendants or any entity controlled (directly or
indirectly) by any such person.
(c) Subject to the foregoing restrictions, the Company and each of
the New Investors hereby agree that any subsequent holder of Registrable
Securities shall be entitled to all benefits hereunder as a holder of
Registrable Securities; provided, however, that, in any event, if the Company's
Charter prohibits the acquisition of the desired number of shares by such
holder, such number shall be reduced to the amount of shares of Registrable
Securities
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such holder may acquire and such holder's transferees shall also be entitled to
all benefits hereunder as a holder of Registrable Securities.
10. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities, its officers, directors and
trustees and each Person who controls (within the meaning of the Securities
Act) such holder against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished to the Company in writing by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls (within the meaning of the Securities Act) such underwriters to the
same extent as provided above with respect to the indemnification of the
holders of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to
the Company in writing such information as the Company reasonably requests for
use in connection with any such registration statement or prospectus and, to
the extent permitted by law, will indemnify the Company, its directors and
officers and each Person who controls (within the meaning of the Securities
Act) the Company against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information so furnished in writing
by such holder; provided that the obligation to indemnify will be individual to
each holder.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other such indemnified parties with respect to such
claim.
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(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the company's
indemnification is unavailable for any reason.
11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration
shall be required to make any representations or warranties to the Company or
the underwriters other than representations and warranties regarding such
holder and such holder's intended method of distribution.
12. LISTING REQUIREMENTS. The Company hereby agrees to cause all
Registrable Securities to be promptly listed on each securities exchange on
which similar securities issued by the Company are listed and to be qualified
for trading on each system on which similar securities issued by the Company
are from time to time qualified.
13. REPORTS AND INFORMATION. The Company hereby agrees to provide
to each of the New Investors copies of all documents distributed to the
Company's shareholders.
14. MISCELLANEOUS.
(a) The Company will not hereafter enter into any agreement with
respect to its securities which is inconsistent with or violates the rights
granted to the holders of Registrable Securities in this Agreement.
(b) The Company will not take any action, or permit any change to
occur, with respect to its securities which would materially and adversely
affect the ability of the holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this Agreement
or which would materially and adversely affect the marketability of such
Registrable Securities in any such registration (including, without limitation,
effecting a stock split or a combination of shares) provided that this
subsection (b) shall not apply to actions or changes with respect to the
Company's business, earnings or revenues where the effect of such actions or
changes on the Registrable Securities is merely incidental.
(c) Any Person having rights under any provision of this Agreement
will be entitled to enforce such rights specifically to recover damages caused
by reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any party may in its sole discretion apply to any court
of law or equity of competent jurisdiction (without posting any bond or other
security) for specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
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(d) Except as otherwise provided herein, the provisions of this
Agreement may be amended or waived only upon the prior written consent of the
Company and holders of a majority of the then outstanding shares of Registrable
Securities. However, the Company may unilaterally amend this Agreement to
provide (i) that other holders of Registrable Securities shall be added as
parties to this Agreement and included within the definition of "New Investor"
or (ii) that Registrable Securities held by any holder shall be included within
the definition of "Registrable Securities".
(e) Subject to Section 9 hereof, all covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express
assignment has been made but subject in any case to Section 9 hereof, the
provisions of this Agreement which are for the benefit of purchasers or holders
of Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities.
(f) Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(g) This Agreement may be executed in two or more counterparts, any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together will constitute one and the same Agreement.
(h) The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(i) The corporate laws of the State of Maryland will govern all
questions concerning the relative rights of the Company or its stockholders and
the laws of Michigan will govern all questions concerning the relative rights
of holders of Common OP Units or Preferred OP Units. All other questions
concerning the construction, validity and interpretation of this Agreement will
be governed by and construed in accordance with the domestic laws of the State
of Michigan, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Michigan or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Michigan. This Section 14(i) shall not be interpreted as granting
exclusive jurisdiction to the States of Michigan and Maryland.
(j) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable express courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to each of the New Investors at their respective
addresses as indicated on the records of the Company and to the Company at the
address indicated below:
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31700 Middlebelt Road
Suite 145
Farmington Hills, Michigan 48334
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first set forth above.
SUN COMMUNITIES, INC.,
a Maryland corporation
By: Gary A. Shiffman
--------------------------
Name: GARY A. SHIFFMAN
Its: PRESIDENT
[Signatures continued on attached signature pages]
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ANNEX A
PROJECT PARTNERSHIPS
1. Aspen-Allendale Project Limited Partnership
2. Aspen-Presidential Project Limited Partnership
3. Aspen-Alpine Project Limited Partnership
4. Bedford Hills Mobile Village
5. Aspen-Brentwood Project Limited Partnership
6. Aspen-Byron Project Limited Partnership
7. Aspen-Country Project Limited Partnership
8. Aspen-Cutler Associates Limited Partnership
9. Aspen-Grand Project Limited Partnership
10. Aspen-Kings Court Limited Partnership
11. Aspen-Town & Country Associates II Limited Partnership
12. Aspen-Paradise Park II Limited Partnership
13. Aspen-Arbor Terrace, LP
14. Aspen-Bonita Lake Resort Limited Partnership
15. Aspen-Breezy Project Limited Partnership
16. Aspen-Indian Project Limited Partnership
17. Aspen-Siesta Bay Limited Partnership
18. Aspen-Silver Star II Limited Partnership
19. Aspen-Ft. Collins Limited Partnership