1
EXHIBIT 10.2
FORM OF SUBSCRIPTION AGREEMENT
This Subscription Agreement, dated as of January 2, 1996 (the
"Agreement"), is entered into by and between Manufactured Home Communities,
Inc., a corporation organized under the laws of the State of Maryland (the
"Corporation"), and ___________ (the "Subscriber").
The Subscriber desiring to subscribe for and acquire shares of the
common stock, $.01 par value per share, of the Corporation (the "Common Stock"),
and the Corporation, desiring to issue such shares of Common Stock to the
Subscriber agree as follows:
1. Subscription for and Issuance of Shares. For the consideration
stated in this Section 1, the Subscriber subscribes for and agrees
to acquire, and the Corporation accepts such subscription and agrees
to issue to the Subscriber, ___________shares of Common Stock (the
"Shares") at the closing price per share on January 2, 1996 (the
"Purchase Price") for a total subscription price equal to the number
of Shares multiplied by the Purchase Price (the "Subscription
Price"). Payment of the Subscription Price shall be made by
delivery by the Subscriber to the Corporation, of a note (the
"Note") which Note shall be secured by the pledge by Subscriber of
certificates representing the Shares purchased by such Subscriber
pursuant to the terms of a pledge agreement (the "Pledge
Agreement"). The Corporation shall acknowledge receipt from the
Subscriber of the Subscription Price tendered by the delivery of the
Note and the Pledge Agreement to the Corporation and, at such time,
the Subscriber shall acknowledge receipt of the certificate or
certificates evidencing the Shares issuable to the Subscriber,
registered in the name of the Subscriber.
2. Representations and Warranties of the Corporation. The Corporation
hereby represents and warrants to the Subscriber as follows:
(a) Organization. The Corporation is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Maryland, with full power to own its
properties and carry on its business as presently conducted
and to enter into and perform this Agreement.
(b) Authorization. All corporate action necessary to authorize
the Corporation to enter into this Agreement and to perform
the covenants and agreements has been duly and validly taken.
Neither the execution of this Agreement nor the performance by
the Corporation of its covenants and agreements hereunder
violates or will violate any provisions of the Articles of
Incorporation, as amended, or By-Laws of the Corporation or of
any agreement, document or instrument to which it is a party
or by which it is bound.
3. Subscriber's Representations, Warranties, Acknowledgements and
Covenants. The Subscriber acknowledges, represents and warrants to
the Corporation as follows:
2
(a) Subscriber's Suitability. The Subscriber (i) has been given an
opportunity to ask, and to the extent the Subscriber has considered
necessary, has asked questions of, and has received answers from,
representatives of the Corporation concerning the terms of this
investment and the affairs of the Corporation, and all such
questions have been answered to the full satisfaction of the
Subscriber; and (ii) has been given or afforded access to all
documents, records, books and additional information which the
Subscriber has requested regarding such matters. In making this
investment, the Subscriber is not relying on any oral information
furnished by or oral representation made by the Corporation or any
one acting on behalf of the Corporation.
(b) Subscriber's Awareness.
(i) The Subscriber understands that the offering and sale of the
Shares has not been registered under the Securities Act of
1933 Act, as amended (the "1933 Act"), or under certain state
securities laws in reliance upon exemptions therefrom for
nonpublic offerings. The Subscriber understands that the
Shares must be held indefinitely unless the sale thereof is
subsequently registered under the 1933 Act and under certain
state securities laws or an exemption or exemptions from such
registration is available and that except as provided herein,
neither the Corporation nor any other person is required to
register the Shares under the 1933 Act, or take any steps to
perfect any exemption therefrom for any resale of the Shares
pursuant to Rule 144 under the 1933 Act, or otherwise transfer
the Shares unless such Shares are registered under the 1933
Act and under any applicable state securities laws, or an
exemption or exemptions from such registration is available;
(ii) The Shares are being purchased by the Subscriber solely for
the Subscriber's own account for investment, and not with a
view to, or for resale in connection with, any distribution.
The Subscriber acknowledges that, with the exception of the
Corporation, no other person has a direct or indirect
beneficial interest in such Shares, and that no other person
has furnished, directly or indirectly, any part of the
Subscription Price. The Subscriber does not intend to dispose
of all or any part of such Shares and understands that such
Shares are being offered and sold pursuant to a specific
exemption under the provisions of the 1933 Act which exemption
depends, among other things, upon the investment intent of the
Subscriber; and
2
3
(iii) The Subscriber understands that no offering memorandum or
sales literature has been filed with or reviewed by certain
state securities administrators because of the representations
made by the Corporation as to the private and limited nature
of this offering. No federal or state agency has passed upon
the Shares or made any finding or determination as to the
merits of this investment.
(c) Authorization and Binding Obligation.
(i) The Subscriber has duly taken any and all action necessary to
authorize such Subscriber's execution and performance of this
Agreement in accordance with its terms;
(ii) This Agreement constitutes the valid and binding obligation of
the Subscriber, enforceable in accordance with its terms; and
(iii) Neither the execution nor the performance of this Agreement
violates or will violate the terms of any agreement, document
or instrument to which the Subscriber is a party or by which
the Subscriber may be bound.
4. Registration Rights. The Subscriber and Corporation agree that if
the Corporation proposes to register any of its securities under the
1933 Act and the form to be used may be used for the registration of
Shares, the Corporation will give prompt written notice ("Piggyback
Notice") to the Subscriber of its intention to effect such
registration and the Corporation will include in such registration,
at the Corporation's expense, the Shares with respect to which the
Corporation has received written requests for inclusion therein
within ten (10) days after the date of sending the Piggyback Notice.
Nothing herein shall affect the right of the Corporation to withdraw
such registration in its sole discretion or require the Corporation
to include the Shares in such registration if the Corporation deems,
in its sole discretion, that the inclusion of the Shares would
adversely interfere with such registration, adversely affect the
Corporation's securities in the public market or otherwise adversely
affect the Corporation.
If the Corporation determines that only a portion of the Shares may
be included without adversely affecting the Corporation, then the
Corporation will include in such registration (i) first, the
securities the Corporation proposes to register and (ii) any other
securities requested to be included in such registration pro-rata on
the basis of the number of shares requested for inclusion in such
registration by each such holder.
5. Notices. Any notices or other communications shall be in writing
and shall be given if sent by certified or registered mail, return
receipt requested, postage prepaid:
3
4
(a) if to the Corporation, to its then principal office;
(b) if to the Subscriber, to the Subscriber's then last known
principal residence address; or to such other persons or at
such other addresses as shall be furnished by any party by
like notice to the others, and such notice or communication
shall be deemed to have been given or made as of the date so
delivered or mailed.
6. REIT Election. The Subscriber acknowledges that the Corporation has
made an election to be treated as "REIT" within the meaning of
Section 856(c) of the Internal Revenue Code of 1986, as amended.
The Subscriber consents to such election and agrees that he shall
not, through any action or failure to act, cause the termination of
the Corporation's REIT election, unless there is a unanimous,
written resolution or consent of all stockholders of the Corporation
which requires them to so act or fail to act.
7. Binding Agreement. This Agreement shall bind and inure to the
benefit of the respective parties hereto, their successors and
assigns.
8. Headings. The headings and descriptive titles contained in this
Agreement are for convenience of reference only and do not modify,
limit or in any way define the interpretation or construction of the
provisions of this Agreement.
9. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Corporation and the Subscriber and
supersedes all prior agreement or understandings relating to the
subject matter hereof.
10. Governing Law. This Agreement is made in the State of Illinois and
shall be governed by, and construed in accordance with, the internal
laws of said State without reference to any principles of conflicts
of laws.
11. Amendments. This Agreement may not be altered or amended except by
a writing executed by any party against whom such alteration or
amendment is sought to be enforced.
12. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original, but both of which
together shall constitute one and the same instrument.
13. Severability. Should any one or more of the provisions of this
Agreement be determined to be illegal, invalid or unenforceable, all
of the other provisions of this Agreement shall be given effect
separately from such provision or provisions and shall not be
affected by any such determination.
4
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
MANUFACTURED HOME COMMUNITIES, INC.
By:________________________________
Name: ________________________
Title:________________________
SUBSCRIBER:
__________________________________