Exhibit
99.1
PROFITS
INTEREST UNIT
GRANT
NOTICE
American
Campus Communities, Inc. (the "
Company
"), pursuant to its 2004 Incentive
Award Plan (the "
Plan
"), hereby grants to Holder the number of Profits
Interest Units (or "
PIUs
") set forth below. The PIUs are
subject to all of the terms and conditions as set forth herein and in the Plan,
all of which are incorporated herein in their entirety. Capitalized
terms not otherwise defined herein shall have the same meaning as set forth
in
the Plan. In the event of a conflict or inconsistency between the
terms and provisions of the Plan and the provisions of this Grant Notice, the
Plan shall govern and control.
Holder:
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Date
of Grant:
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Number
of PIUs:
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Vesting
Schedule:
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The
PIUs shall be vested on the date of grant.
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Registration
Rights Agreement:
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Holder
shall be entitled to certain registration rights, with terms substantially
similar to those set forth on Exhibit A hereto, with respect to the
Shares
of Stock received by Holder upon a conversion of the PIUs into Units
and
the subsequent exchange of Units for Shares in accordance with the
terms
of the Partnership Agreement (the "
Partnership Agreement
") of
American Campus Communities Operating Partnership, LP (the
"
Partnership
").
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Additional
Terms:
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As
a
condition of the grant of PIUs hereunder, if Holder has not previously
executed a copy of the Partnership Agreement, Holder shall be required
to
execute a copy of the Partnership Agreement and to be bound by the
terms
and conditions contained therein.
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Distributions
on the PIUs shall be paid currently to Holder in accordance with
the terms
of the Partnership Agreement.
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So
long as Holder holds any PIUs, Holder shall disclose to the Partnership
such information as may reasonably be requested with respect to ownership
of the PIUs as the Partnership may deem reasonably necessary to ascertain
and establish compliance with the provisions of the Code applicable
to the
Partnership.
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This
Grant Notice does not confer upon Holder any right to continue as
an
employee or service provider of the Company or its
Affiliates.
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This
Grant Notice shall be construed and interpreted in accordance with
the
laws of the State of Texas, without regard to the principles of conflicts
of law thereof.
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THE
UNDERSIGNED HOLDER ACKNOWLEDGES RECEIPT OF THIS GRANT NOTICE AND THE PLAN,
AND,
AS AN EXPRESS CONDITION TO THE GRANT OF PROFITS INTEREST UNITS HEREUNDER,
AGREES
TO BE BOUND BY THE TERMS THIS GRANT NOTICE AND THE
PLAN.
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AMERICAN
CAMPUS COMMUNITIES, INC.
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HOLDER
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EXHIBIT
A
REGISTRATION
RIGHTS
ARTICLE
1
DEFINITIONS
The
following terms and phrases shall, for purposes of this Agreement, have the
meanings set forth below:
"
Blackout
Termination Right
" shall have the meaning set forth in Section
5.3(b).
"
Business
Day
" means any day on which the New York Stock Exchange is open for
trading.
"
Common
Stock
" means the common stock, par value $.01 per share, of the
Company.
"
Company
"
means American Campus Communities, Inc., a Maryland corporation.
"
Company
Offering
" shall have the meaning set forth in Section 3.1(b).
"
Effective
Date
" shall mean the date of grant as set forth in the accompanying Grant
Award.
"
Eligible
Securities
" means all or any portion of the shares of Common Stock that may
be acquired by the Investors upon their exchange of limited partner interests
in
the Operating Partnership for shares of Common Stock pursuant to the Operating
Partnership Agreement.
As
to any
proposed offer or sale of Eligible Securities, such securities shall cease
to be
Eligible Securities with respect to such proposed offer or sale when (i) a
registration statement with respect to the sale of such securities shall
have
become effective under the Securities Act and such securities shall have
been
disposed of in accordance with such registration statement, (ii) such
securities are permitted to be distributed pursuant to Rule 144(k) (or any
successor provision to such Rule) under the Securities Act to be confirmed
in a
written opinion of counsel to the Company addressed to the Investors, or
(iii) such securities shall have been otherwise transferred pursuant to an
applicable exemption under the Securities Act, new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company and such securities shall be freely transferable
to the
public without registration under the Securities Act.
"
Information
Blackout
" shall have the meaning set forth in Section 5.3(a).
"
Investors
"
means the PIU Holders (as defined in the Operating Partnership
Agreement).
"
Mandatory
Registration
" shall have the meaning set forth in Section 2.1.
"
Operating
Partnership
" means American Campus Communities Operating Partnership LP, a
Maryland limited partnership.
"
Operating
Partnership Agreement
" means the Amended and Restated Agreement of Limited
Partnership of the Operating Partnership dated August 17, 2004.
"
Other
Investors
" shall have the meaning set forth in Section 3.2.
"
Other
Securities
" shall have the meaning set forth in Section 4.1.
"
Person
"
means an individual, a partnership (general or limited), corporation, joint
venture, business trust, cooperative, association or other form of business
organization, whether or not regarded as a legal entity under applicable
law, a
trust (inter vivos or testamentary), an estate of a deceased, insane or
incompetent person, a quasi-governmental entity, a government or any agency,
authority, political subdivision or other instrumentality thereof, or any
other
entity.
"
Permitted
Transferee
" means any Person that received any Eligible Securities from an
Investor pursuant to, and in accordance with, the Operating Partnership
Agreement.
"
Registration
Expenses
" means all of the expenses incident to the Company's performance of
or compliance with the registration requirements set forth herein, including,
without limitation, the following: (i) the fees, disbursements and expenses
of
the Company's counsel(s) (United States and foreign), accountants and experts
in
connection with the registration of Eligible Securities to be disposed
of under
the Securities Act; (ii) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus
or
final prospectus, any other offering document and amendments and supplements
thereto and the mailing and delivering of copies thereof to the underwriters
and
dealers; (iii) the cost of printing or producing any agreement(s) among
underwriters, underwriting agreement(s) and blue sky or legal investment
memoranda, any selling agreements and any other documents in connection
with the
offering, sale or delivery of Eligible Securities to be disposed of; (iv)
all
expenses in connection with the qualification of Eligible Securities to
be
disposed of for offering and sale under state securities laws, including
the
fees and disbursements of counsel for the underwriters in connection with
such
qualification and in connection with any blue sky and legal investment
surveys;
(v) the filing fees incident to securing any required review by the NASD,
Inc.
of the terms of the sale of Eligible Securities to be disposed of; and
(vi) fees
and expenses incurred in connection with the listing of Eligible Securities
on
each securities exchange on which securities of the same class are then
listed;
provided, however, that Registration Expenses with respect to any registration
pursuant hereto shall not include underwriting discounts or commissions
attributable to Eligible Securities, SEC or blue sky registration fees
attributable to Eligible Securities or transfer taxes applicable to Eligible
Securities.
"
Sales
Blackout Period
" shall have the meaning set forth in Section
5.3(a).
"
SEC
"
means the Securities and Exchange Commission.
"
Securities
Act
" shall mean the Securities Act of 1933, as amended, and the rules
and
regulations of the SEC thereunder, all as the same shall be in effect at
the
relevant time.
"
Selling
Investors
" shall mean the Investor or Investors who participate in an
offering pursuant to Section 2, 3 or 4.
ARTICLE
2
MANDATORY
REGISTRATION
2.1
Registration
. On
or prior to the 11-month anniversary of the Effective Date, or as soon as
commercially reasonable thereafter, the Company shall prepare and file a
registration statement under Rule 415 of the Securities Act which shall cover
the resale of all Eligible Securities (the "
Mandatory
Registration
"). The Company may elect to include in such
registration additional Common Shares issued or to be issued by the
Company. The Investors' rights to request registration under Sections
2 and 3 below shall terminate upon the date the Company files a registration
statement under this Section 2.1 unless the Company is unable to obtain the
effectiveness of such registration statement.
2.2
Selection
of Underwriters
. If any of the Eligible Securities covered by a
Mandatory Registration are to be sold in an underwritten offering, the Company
shall have the right to select the investment banker or investment bankers
and
manager or managers that will underwrite the offering;
provided
,
however
, that such investment bankers and managers must be reasonably
acceptable to the Selling Investors.
2.3
Duration
of Mandatory Registration
. The Company agrees to use its
reasonable efforts to keep the registration statement relating to the Mandatory
Registration continuously effective for a period expiring on the earlier
of
(i) the date on which all of the Eligible Securities covered by such
registration statement have been sold pursuant thereto and (ii) the date on
which (A) all Eligible Securities held by Investors who are not affiliates
of the Company, in the opinion of counsel for the Company, are eligible for
sale
pursuant to Rule 144(k) under the Securities Act and (B) all Eligible
Securities held by each Investor who is an affiliate of the Company, in the
opinion of counsel for the Company, are eligible for sale pursuant to Rule
144
under the Securities Act and could be sold in one transaction in accordance
with
the volume limitations contained in Rule 144(e)(1)(i) under the Securities
Act.
2.4 The
Company shall be responsible for the payment of all Registration Expenses
in
connection with any registration pursuant to this Article 2.
ARTICLE
3
DEMAND
REGISTRATION RIGHTS
3.1
Notice
and Registration
. Upon written notice from an Investor or
Investors owning Eligible Securities requesting that the Company effect the
registration under the Securities Act of all or part of the Eligible Securities
held by such Investors, which notice shall specify the intended method or
methods of disposition of such Eligible Securities, the Company will use
its
reasonable efforts to effect the registration, under the Securities Act,
of such
Eligible Securities for disposition in accordance with the intended method
or
methods of disposition stated in such request,
provided
that:
(a) if
the Company shall have previously effected a registration with respect to
Eligible Securities pursuant to Article 4 hereof, the Company shall not be
required to effect a registration pursuant to this Article 3 until the later
of
(i) the date six months from the effective date of the most recent such
previous registration or (ii) the date agreed to by and between the Company
and the underwriters in connection with such previous registration;
(b) if,
upon receipt of a registration request pursuant to this Article 3, the Company
is advised in writing (with a copy to the Selling Investors (as defined below))
by an independent investment banking firm selected by the Company to act
as lead
underwriter in connection with a public offering of securities by the Company
that, in such firm's opinion, a registration at the time and on the terms
requested would materially adversely affect such public offering of securities
by the Company (other than an offering in connection with employee benefit
and
similar plans) (a "
Company Offering
") that had been contemplated by the
Company prior to the notice by the Investors who initially requested
registration, the Company shall not be required to effect a registration
pursuant to this Article 3 until the earliest of (i) three months after the
completion of such Company Offering or (ii) promptly after abandonment of
such Company Offering;
provided
,
however
, notwithstanding the
foregoing, Company shall not be required to effect a registration pursuant
to
this Article 3 until the termination of any "black out" period required by
the
underwriters to be applicable to the Selling Investors in connection with
such
Company Offering and agreed to in writing by the Selling Investors;
(c) if,
while a registration request is pending pursuant to Article 3, the Company
determines in the good faith judgment of the Board of Directors of the Company,
with the advice of counsel, that the filing of a registration statement or
the
declaration of effectiveness would require the disclosure of non-public material
information the disclosure of which would have a material adverse effect
on the
Company or would otherwise adversely affect a material financing, acquisition,
disposition, merger or other comparable transaction, the Company shall deliver
a
certificate to such effect signed by its President or the Chief Financial
Officer to the Selling Investors and the Company shall not be required to
effect
a registration pursuant to this Article 3 until the later of (i) the date
upon which such material information is disclosed to the public or ceases
to be
material or (ii) 60 days after the Company makes such good faith
determination; and
(d) the
Company shall not be required to effect more than one registration pursuant
to
this Article 3 in any 12-month period. No registration of Eligible Securities
under this Article 3 shall relieve the Company of its obligation (if any)
to
effect registrations of Eligible Securities pursuant to Article 4.
3.2
Other
Investor Shares
. Upon receipt of the written notice from
Investors requesting registration under Section 3.1, the Company shall give
written notice to each of the other Investors (the "
Other
Investors
"). Within five (5) Business Days after receipt of such
notice by any Other Investor, such Other Investor may request in writing
that
Eligible Securities be included in such registration and, subject to Section
3.1
hereof, the Company shall include in such registration the Eligible Securities
of any such Other Investor requested to be so included. Each such
request by such Other Investor shall specify the number of shares of Eligible
Securities proposed to be sold and the intended method of distribution
thereof.
3.3
Registration
Expenses
. With respect to any registration of Eligible Securities
requested pursuant to this Article 3 in an amount in excess of $500,000 and
any
registration arising from an exercise of a Blackout Termination Right (as
defined below), the Company shall pay all Registration Expenses; otherwise,
the
Selling Investors shall pay all Registration Expenses.
ARTICLE
4
PIGGY-BACK
REGISTRATION
4.1
Notice
and Registration
. If the Company proposes to register any shares of Common
Stock or other securities issued by it having terms substantially similar
to
Eligible Securities ("
Other Securities
") for public sale under the
Securities Act (whether proposed to be offered for sale by the Company or
by any
other Person) on a form and in a manner which would permit registration of
Eligible Securities for sale to the public under the Securities Act, it will
give prompt written notice to Investors of its intention to do so, which
notice
the Investors shall keep confidential, and upon the written request of Investors
delivered to the Company within five (5) Business Days after the giving of
any
such notice (which request shall specify the number of Eligible Securities
intended to be disposed of by Investors and the intended method of disposition
thereof) the Company will use its reasonable efforts to effect, in connection
with the registration of the Other Securities, the registration under the
Securities Act of all Eligible Securities which the Company has been so
requested to register by the Selling Investors, to the extent required to
permit
the disposition (in accordance with the intended method or methods thereof
as
aforesaid) of Eligible Securities so to be registered, provided
that:
(a) if,
at any time after giving such written notice of its intention to register
any
Other Securities and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for
any
reason not to register the Other Securities, the Company may, at its election,
give written notice of such determination to Investors and thereupon the
Company
shall be relieved of its obligation to register such Eligible Securities
in
connection with the registration of such Other Securities (but not from its
obligation to pay Registration Expenses to the extent incurred in connection
therewith as provided in Section 4.2), without prejudice, however, to the
rights
(if any) of Investors immediately to request that such registration be effected
as a registration under Article 3;
(b) the
Company will not be required to effect any registration pursuant to this
Article
4 if the Company shall have been advised in writing (with a copy to the Selling
Investors) by an independent investment banking firm selected by the Company
to
act as lead underwriter in connection with the public offering of securities
by
the Company that, in such firm's opinion, such registration at that time
would
materially and adversely affect the Company's own scheduled offering, provided,
however, that if an offering of some but not all of the shares requested
to be
registered by the Investors would not materially and adversely affect the
Company's offering, as determined by such lead underwriter, the aggregate
number
of shares requested to be included in such offering by the Selling Investors
shall be reduced accordingly and on a pro rata basis according to the total
number of shares of Common Stock owned by such Investors on the day the Company
first delivered its notice to the other Investors of its proposed offering;
and
(c) the
Company shall not be required to effect any registration of Eligible Securities
under this Article 4 incidental to the registration of any of its securities
in
connection with mergers, acquisitions, exchange offers, subscription offers,
dividend reinvestment plans or stock options or other employee benefit
plans.
No
registration of Eligible Securities effected under this Article 4 shall relieve
the Company of its obligation (if any) to effect registrations of Eligible
Securities pursuant to Article 5.
4.2
Registration
Expenses
. The Company (as between the Company and the Selling
Investors) shall be responsible for the payment of all Registration Expenses
in
connection with any registration pursuant to this Article 4.
ARTICLE
5
REGISTRATION
PROCEDURES
5.1
Registration
and Qualification
. If and whenever the Company is required to use
its reasonable efforts to effect the registration of any Eligible Securities
under the Securities Act as provided in Articles 2, 3 or 4, the Company will
as
promptly as is practicable:
(a) prepare,
file and use its reasonable efforts to cause to become effective a registration
statement under the Securities Act regarding the Eligible Securities to be
offered;
(b) prepare
and file with the SEC 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 and to comply with the provisions
of
the Securities Act with respect to the disposition of all Eligible Securities
until the earlier of such time as all of such Eligible Securities have been
disposed of in accordance with the intended methods of disposition by the
Selling Investors set forth in such registration statement or the expiration
of
twelve months after such Registration Statement becomes effective;
(c) furnish
to the Selling Investors and to any underwriter of such Eligible Securities
such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus, and
such
other documents as the Selling Investors or such underwriter may reasonably
request;
(d) use
its reasonable efforts to register or qualify all Eligible Securities covered
by
such registration statement under such other securities or blue sky laws
of such
jurisdictions as the Selling Investors or any underwriter of such Eligible
Securities shall reasonably request, and do any and all other acts and things
which may be reasonably requested by the Selling Investors or any underwriter
to
consummate the disposition in such jurisdictions of the Eligible Securities
covered by such registration statement, except the Company shall not for
any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, or to subject
itself to taxation in any jurisdiction where it is not then subject to taxation,
or to consent to general service of process in any jurisdiction where it
is not
then subject to service of process;
(e) use
its reasonable efforts to list the Eligible Securities on each national
securities exchange on which the Common Stock is then listed, if the listing
of
such securities is then permitted under the rules of such exchange;
and
(f) promptly
notify the Selling Investors at any time when a prospectus relating to a
registration pursuant to Articles 2, 3 or 4 hereof 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, as then in effect, includes
an 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,
in
the light of the circumstances under which they were made, not misleading,
and
at the request of the Selling Investors prepare and furnish to the Selling
Investors as many copies of a supplement to or an amendment of such prospectus
as the Selling Investors reasonably request so that, as thereafter delivered
to
the purchasers of such Eligible Securities, such prospectus shall not include
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading.
The
Company may require the Selling Investors to furnish the Company such
information regarding the Selling Investors and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the SEC in connection with any
registration, and each Selling Investor shall promptly notify the Company
of the
distribution of such securities.
5.2
Underwriting
.
(a) If
requested by the underwriters for any underwritten offering of Eligible
Securities pursuant to a registration requested hereunder, the Company will
enter into and perform its obligations under an underwriting agreement with
such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution
to
the effect. The holders of Eligible Securities on whose behalf
Eligible Securities are to be distributed by such underwriters shall, if
requested by such underwriters, be parties to any such underwriting agreement.
Notwithstanding the foregoing, any Selling Investor may elect, in writing
prior
to the effective date of the registration statement filed in connection with
such registration, not to register such Eligible Securities in connection
with
such registration.
(b) In
the event that any registration pursuant to Article 4 hereof shall involve,
in
whole or in part, an underwritten offering, the Company may require Eligible
Securities requested to be registered pursuant to Article 4 to be included
in
such underwriting on the same terms and conditions as shall be applicable
to the
Other Securities being sold through underwriters under such registration.
In
such case, the holders of Eligible Securities on whose behalf Eligible
Securities are to be distributed by such underwriters shall be parties to
any
such underwriting agreement. Such agreement shall contain such representations
and warranties by the Selling Investors and such other terms and provisions
as
are customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution
to
the effect and to the extent provided in Article 7.
5.3
Blackout
Periods
.
(a) At
any time when a registration statement filed pursuant to Article 3 relating
to
Eligible Securities is effective, upon written notice from the Company to
Investors that the Company determines in the good faith judgment of the Board
of
Directors of the Company, with the advice of counsel, that Selling Investors'
sale of Eligible Securities pursuant to the registration statement would
require
disclosure of non-public material information the disclosure of which would
have
a material adverse effect on the Company (an "
Information Blackout
"), the
Selling Investors shall suspend sales of Eligible Securities pursuant to
such
registration statement until the later of:
(X) (A) the
date upon which such material information is disclosed to the public or ceases
to be material or (B) 60 days after the Company makes such good faith
determination, and
(Y) such
time as the Company notifies the Selling Investors that sales pursuant to
such
registration statement may be resumed (the number of days from such suspension
of sales by the Selling Investors until the day when such sales may be resumed
hereunder is hereinafter called a "
Sales Blackout Period
").
(b) Any
delivery by the Company of notice of an Information Blackout during the 90
days
immediately following effectiveness of any registration statement effected
pursuant to Article 3 hereof shall give the Investors the right, by written
notice to the Company within 10 Business Days after the end of such blackout
period, to cancel such registration and obtain one additional registration
right
during such calendar year (a "
Blackout Termination Right
") under Section
3.1(d).
(c) If
there is an Information Blackout and the Investors do not exercise their
cancellation right, if any, pursuant to (b) above, or, if such cancellation
right is not available, the time period set forth in Section 3.1(b) shall
be
extended for a number of days equal to the number of days in the Sales Blackout
Period.
5.4
Qualification
for Rule 144 Sales
. The Company will take all actions reasonably
necessary to comply with the filing requirements described in Rule 144(c)(1)
so
as to enable the Investors to sell Eligible Securities without registration
under the Securities Act and, upon the written request of any Investor, the
Company will deliver to such Investor a written statement as to whether it
has
complied with such filing requirements.
ARTICLE
6
PREPARATION;
REASONABLE INVESTIGATION
6.1
Preparation:
Reasonable Investigation
. In connection with the preparation and
filing of each registration statement registering Eligible Securities under
the
Securities Act, the Company will give the Selling Investors and the
underwriters, if any, and their respective counsel and accountants, drafts
of
such registration statement for their review and comment prior to filing
and
such reasonable and customary access to its books and records and such
opportunities to discuss the business of the Company with its officers and
the
independent public accountants who have certified its financial statements
as
shall be necessary, in the opinion of the Selling Investors and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act, subject in all cases to mutually
acceptable confidentiality arrangements.
ARTICLE
7
INDEMNIFICATION
AND CONTRIBUTION
7.1
Indemnification
and Contribution
.
(a) In
the event of any registration of any Eligible Securities hereunder, the Company
will enter into customary indemnification arrangements to indemnify and hold
harmless each Investor who exercises his registration rights hereunder and,
to
the extent applicable, its directors and officers, its partners, its trustees
and each Person who controls any of such Persons, each Person who participates
as an underwriter in the offering or sale of such securities, and each Person,
if any, who controls such underwriter within the meaning of the Securities
Act
against any losses, claims, damages, liabilities and expenses, joint or several,
to which such Person may be subject under the Securities Act or otherwise
insofar as such losses, claims, damages, liabilities or expenses (or actions
or
proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in
any registration statement under which such securities were registered under
the
Securities Act, any preliminary prospectus or final prospectus included therein,
or any amendment or supplement thereto, or any document incorporated by
reference therein, or (ii) 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, and the Company will promptly reimburse
each
such Person for any legal or any other expenses reasonably incurred by such
Person in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding, provided that (i) the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expenses
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus or final prospectus, amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such
Selling Investors or such underwriter expressly for use in the registration
statement and (ii) the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding
in
respect thereof) or expenses arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, amendment or
supplement, if such person did not receive a copy of the final prospectus (or
prospectus as supplemented) from the underwriters at or prior to the
confirmation of the sale of such Eligible Securities in any case where such
delivery is required by the Securities Act and such statement was corrected
therein. Such indemnity shall remain in full force and effect regardless of
any
investigation made by or on behalf of Investors or any such Person and shall
survive the transfer of such securities by the Investors. The Company also
shall
agree to provide provision for contribution as shall be reasonably requested
by
the Investors or any underwriters in circumstances where such indemnity is
held
unenforceable.
(b) The
Selling Investors, by virtue of exercising their registration rights hereunder,
agree and undertake to enter into customary indemnification arrangements
to
severally and not jointly indemnify and hold harmless (in the same manner
and to
the same extent as set forth in clause (a) of this Article 7) the Company,
each
director of the Company, each officer of the Company who shall sign such
registration statement, each Person who participates as an underwriter in
the
offering or sale of such securities, each Person, if any, who controls the
Company or any such underwriter within the meaning of the Securities Act,
with
respect to any statement in or omission from such registration statement,
any
preliminary prospectus or final prospectus included therein, or any amendment
or
supplement thereto, but only to the extent that such statement or omission
was
made in reliance upon and in conformity with written information furnished
by
such Selling Investors to the Company expressly for use in the registration
statement and only to the extent of the amount of net proceeds received from
the
sale of such securities by the Selling Investors. Such indemnity shall remain
in
full force and effect regardless of any investigation made by or on behalf
of
the Company or any such director, officer or controlling Person and shall
survive the transfer of the registered securities by the Selling Investors
and
the expiration of this Agreement. The Selling Investors also shall agree
to
provide provision for contribution as shall be reasonably requested by the
Company or any underwriters in circumstances where such indemnity is held
unenforceable.
(c) Indemnification
and contribution similar to that specified in the preceding subdivisions
of this
Article 7 (with appropriate modifications) shall be given by the Company
and the
Selling Investors with respect to any required registration or other
qualification of such Eligible Securities under any federal or state law
or
regulation of governmental authority other than the Securities Act.
ARTICLE
8
BENEFITS
OF REGISTRATION RIGHTS
8.1
Benefits
of Registration Rights
. Subject to the limitations of Sections
3.1 and 4.1, Investors and any Permitted Transferees of Eligible Securities
may
severally or jointly exercise the registration rights hereunder in such manner
and in such proportion as they shall agree among
themselves.