exv10w6



 






EXHIBIT 10.6





REGISTRATION RIGHTS AGREEMENT




          THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of May 2, 2002 by and between
Trizec Properties, Inc., a Delaware corporation (the “Company”), Trizec Canada Inc., a
company incorporated under the Canada Business Corporations Act (“TCI”), and Emerald Blue
Kft, a company existing under the laws of Hungary (“Trizec Hungary”).



          Pursuant to the Arrangement Agreement (as defined herein), the Company has agreed to provide
the registration rights set forth in this Agreement for the benefit of all Holders (as defined
herein).



          In consideration of the foregoing, the parties hereto agree as follows:



          Section 1. Definitions.



          As used in this Agreement, the following terms shall have the following meanings:



          “Affiliate” means, with respect to any specified person, an “affiliate,” as defined in
Rule 144, of such person.



          “Arrangement Agreement” means the agreement entered into by and among the Company,
TCI, TrizecHahn Corporation and 4007069 Canada Inc., dated as of March 8, 2002, governing the terms
of a plan of arrangement involving such corporations and the shareholders of TrizecHahn
Corporation.



          “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not
a day on which banking institutions in The City of New York are authorized or obligated by law or
executive order to close.



          “Class F Conversion Event” means any circumstance or event that, pursuant to the terms
of the Company’s certificate of incorporation, entitles a Holder to convert one or more shares of
the Company’s Class F convertible preferred stock into one or more shares of Common Stock.



          “Class F Conversion Stock” means the Common Stock and any securities into or for which
the Common Stock has been converted or exchanged, and any security issued with respect thereto upon
any stock dividend, split or similar event that may be disposed of by a Holder thereof in
connection with a Class F Conversion Event.



          “Common Stock” means the common stock of the Company, par value $0.01 per share, held
by a Holder.



          “Deferral Notice” has the meaning specified in Section 5(i) hereof.



 









 





          “Deferral Period” has the meaning specified in Section 5(i) hereof.



          “Demand Stock” means the Common Stock and any securities into or for which the Common
Stock has been converted or exchanged, and any security issued with respect thereto upon any stock
dividend, split or similar event that may be disposed of by a Holder for any reason.



          “Effectiveness Period” means (i) for the purpose of a Shelf Registration Statement
filed pursuant to Section 2 hereof, the period beginning on the date that the Initial Shelf
Registration Statement is declared effective and ending on the earliest of (A) the date on which
TCI shareholders may no longer elect to have their TCI shares redeemed, (B) the date on which all
TCI Redemption Stock has been disposed of, and (C) the date on which all Holders of TCI Redemption
Stock may, pursuant to Rule 144(k) under the Securities Act, sell such stock without regard to
paragraphs (c), (e), (f) and (h) of such rule; (ii) for the purpose of a Resale Registration
Statement filed pursuant to Section 3 hereof, the period beginning on the date that the applicable
Resale Registration Statement is declared effective and ending on the date that any sale of
Registrable Securities under such Resale Registration Statement occurs; and (iii) for the purpose
of a Resale Shelf Registration Statement filed pursuant to Section 4 hereof, the period beginning
on the date that the Initial Resale Shelf Registration Statement is declared effective and ending
on the later of the date that (A) the date on which no Holder owns shares of Class F convertible
preferred stock that, pursuant to the terms of the Company’s certificate of incorporation, may be
converted into Common Stock, and (B) the date on which all Holders of Demand Stock may, pursuant to
Rule 144(k) under the Securities Act, sell such stock without regard to paragraphs (c), (e), (f)
and (h) of such rule.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.



          “Form S-3” means Form S-3 under the Securities Act.



          “Form S-11” means Form S-11 under the Securities Act.



          “Holder” means TCI, any of its direct subsidiaries or any of its indirect
subsidiaries, for so long as any of the foregoing holds Registrable Securities.



          “Initial Resale Shelf Registration Statement” has the meaning specified in Section
4(a) hereof.



          “Initial Shelf Registration Statement” has the meaning specified in Section 2(a)
hereof.



          “Material Event” has the meaning specified in Section 5(i) hereof.



          “Notice Holder” means with respect to any Registration Statement on any date, any
Holder that has delivered a Registration Notice relating to such Registration Statement or is
otherwise included as a selling stockholder in such Registration Statement.



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          “person” shall mean a corporation, association, partnership, organization, business,
individual, government or political subdivision thereof or governmental agency.



          “Plan of Arrangement” means the plan of arrangement that is included as Appendix I to
the Arrangement Agreement.



          “Pledge Registration Rights Agreement” has the meaning specified in Section 11(a)
hereof.



          “Prospectus” means the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any amendment or prospectus supplement,
including post-effective amendments, and all materials incorporated by reference or explicitly
deemed to be incorporated by reference in such Prospectus.



          “Registrable Securities” means the TCI Redemption Stock, Class F Conversion Stock and
Demand Stock.



          “Registration Expenses” has the meaning specified in Section 7 hereof.



          “Registration Notice” means with respect to a Registration Statement, a written notice
delivered by a Holder to the Company that requests the Company to include such Holder as a selling
stockholder in the Prospectus relating to such Registration Statement and that contains
substantially the information required by Section 6(b) hereof.



          “Registration Statement” means any registration statement of the Company that covers
any of the Registrable Securities pursuant to the provisions of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such registration statement.



          “Resale Registration Statement” has the meaning specified in Section 3(a) hereof.



          “Resale Shelf Registration Statement” has the meaning specified in Section 4(a)
hereof.



          “Restricted Securities” has the meaning assigned to that term in Rule 144.



          “Rule 144” means Rule 144 under the Securities Act, as such rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.



          “Rule 144A” means Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.



          “SEC” means the U.S. Securities and Exchange Commission and any successor agency.



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          “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.



          “Shelf Registration Statement” has the meaning specified in Section 2(a) hereof.



          “Subsequent Shelf Registration Statement” has the meaning specified in Section 2(b)
hereof.



          “Subsequent Resale Registration Statement” has the meaning specified in Section 3(b)
hereof.



          “Subsequent Resale Shelf Registration Statement” has the meaning specified in Section
4(b) hereof.



          “TCI Redemption” means a redemption of any of the subordinate voting shares or
multiple voting shares of TCI made at the option of the holder of such shares.



          “TCI Redemption Stock” means the Common Stock and any securities into or for which the
Common Stock has been converted or exchanged, and any security issued with respect thereto upon any
stock dividend, split or similar event that may be disposed of by a Holder thereof in connection
with a TCI Redemption.



          Section 2. Shelf Registration Rights for TCI Redemption Stock.



          (a) The Company shall prepare and file or cause to be prepared and filed with the SEC a
Registration Statement for an offering to be made from time to time on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration Statement”) by
the Holders of all TCI Redemption Stock (the “Initial Shelf Registration Statement”). The
Initial Shelf Registration Statement shall be on Form S-11 or another appropriate form permitting
registration pursuant to the Securities Act of such TCI Redemption Stock for resale by the Holders
thereof in accordance with the methods of distribution elected by such Holders and set forth in the
Initial Shelf Registration Statement. The Company shall use reasonable efforts to cause the
Initial Shelf Registration Statement to be declared effective under the Securities Act as promptly
as is practicable, but in any event prior to the effective date of the Plan of Arrangement, and to
keep the Initial Shelf Registration Statement (or any Subsequent Shelf Registration Statement)
continuously effective under the Securities Act until the expiration of the Effectiveness Period;
provided, however, that no Holder shall be entitled to have the TCI Redemption
Stock held by it covered by a Shelf Registration Statement unless such Holder shall have provided a
Registration Notice in accordance with Section 2(d) hereof and is in compliance with Section 5
hereof. None of the Company’s security holders (other than Holders of TCI Redemption Stock) shall
have the right to include any of the Company’s securities in a Shelf Registration Statement.



          (b) If the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness Period (other than
because all securities registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be TCI Redemption Stock), the Company shall use reasonable efforts to obtain
the prompt withdrawal of any order suspending the effectiveness



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thereof, and in any event shall within thirty (30) days of such cessation of effectiveness
amend the Shelf Registration Statement in a manner reasonably expected to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing constitute TCI Redemption Stock
(a “Subsequent Shelf Registration Statement”). If a Subsequent Shelf Registration
Statement is filed, the Company shall use reasonable efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is practicable after such filing (or, if
filed during a Deferral Period, after the expiration of such Deferral Period) and to keep such
Subsequent Shelf Registration Statement continuously effective until the end of the applicable
Effectiveness Period.




          (c) The Company shall supplement and 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, if required by the Securities Act or, to the extent to which the
Company does not reasonably object, as reasonably requested by the Holders of TCI Redemption Stock
covered by such Shelf Registration Statement.



          (d) If any Holder wishes to sell TCI Redemption Stock pursuant to a Shelf Registration
Statement and related Prospectus under this Section 2, it shall (x) deliver a Registration Notice
to the Company at least one (1) Business Day prior to any intended distribution of TCI Redemption
Stock under such Shelf Registration Statement, and (y) sell any such TCI Redemption Stock only in
accordance with this Section 2(d) and Section 5(i) hereof. From and after the date the Initial
Shelf Registration Statement is declared effective, the Company shall, (i)(A) as promptly as is
practicable after the date a Registration Notice is delivered, but in any event within one (1)
Business Day after such date, prepare and, if required by applicable federal securities law, file
with the SEC a supplement to the related Prospectus or, if required by applicable federal
securities law, file a post-effective amendment to the Shelf Registration Statement or an amendment
to any document incorporated therein by reference or file any other document required by the SEC so
that the Holder delivering such Registration Notice is named as a selling security holder in the
Shelf Registration Statement or the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of TCI Redemption Stock in accordance with applicable law
(other than laws not generally applicable to all Holders wishing to sell TCI Redemption Stock
pursuant to the Shelf Registration Statement and related Prospectus), and (B) if the Company shall
file a post-effective amendment to the Shelf Registration Statement, use reasonable efforts to
cause such post-effective amendment to be declared effective under the Securities Act as promptly
as is practicable; (ii) provide such Holder copies of any documents filed pursuant to Section
2(d)(i) hereof; and (iii) notify such Holder as promptly as is reasonably practicable after the
effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section
2(d)(i) hereof; provided that if such Registration Notice is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Registration Notice and shall take
the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period
in accordance with Section 5(i), provided further that if under applicable law the
Company has more than one option as to the type or manner of making any such filing, as set forth
in an opinion of a nationally recognized counsel experienced in such matters delivered by the
Holder to the Company, it will make the required filing or filings in the manner or of a type that
is reasonably expected to result in the earliest availability of the Prospectus for effecting
resales of



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TCI Redemption Stock. Notwithstanding anything contained herein to the contrary, the Company
shall be under no obligation to name any Holder of TCI Redemption Stock that is not a Notice Holder
as a selling security holder in any Registration Statement or related Prospectus; provided,
however, that any Holder of TCI Redemption Stock that becomes a Notice Holder pursuant to
the provisions of this Section 2(d) (whether or not such Holder was a Notice Holder at the time the
Registration Statement was initially declared effective) shall be named as a selling security
holder in the Registration Statement or related Prospectus subject to and in accordance with the
requirements of this Section 2(d).




          Section 3. Non-Shelf Registration Rights for Class F Conversion Stock and Demand
Stock.



          (a) Until such time as an Initial Resale Shelf Registration Statement has been filed with and
declared effective by the SEC in accordance with Section 4 hereof, the Company shall prepare and
file or cause to be prepared and filed with the SEC one or more Registration Statements registering
the resale by Holders thereof of all Class F Conversion Stock or Demand Stock (each a “Resale
Registration Statement”) promptly upon, and in any event no later than ten (10) days after,
receipt by the Company of a Registration Notice delivered by a Holder of Class F Conversion Stock
or Demand Stock in accordance with Section 3(d) hereof; provided that, if upon the
Company’s receipt of any such Registration Notice from any such Holder of Class F Conversion Stock
or Demand Stock, the Company has previously filed or caused to be filed with the SEC a Resale
Registration Statement pursuant to the prior receipt of one or more Registration Notices, and at
such time (i) such Resale Registration Statement has not yet been declared effective by the SEC,
then the Company shall file a pre-effective amendment to such Resale Registration Statement in
order to name such Holder as a selling security holder therein, or (ii) such Resale Registration
Statement has been declared effective by the SEC but no Registrable Securities registered
thereunder have been sold pursuant thereto, then the Company shall file a post-effective amendment
to such Resale Registration Statement in order to name such Holder as a selling security holder
therein, but only upon the prior written consent of TCI, which will not be unreasonably withheld.
A Resale Registration Statement shall be on Form S-11 or another appropriate form permitting
registration pursuant to the Securities Act of such Class F Conversion Stock or Demand Stock for
resale by the Holders thereof in accordance with the methods of distribution elected by such
Holders and set forth in the Resale Registration Statement. The Company shall use reasonable
efforts to cause each Resale Registration Statement to be declared effective under the Securities
Act as promptly as is practicable but in any event by the date that is sixty (60) days following
the initial filing of such Resale Registration Statement, and to keep the Resale Registration
Statement continuously effective under the Securities Act until the expiration of the Effectiveness
Period; provided, however, that no Holder shall be entitled to have the Class F
Conversion Stock or Demand Stock held by it covered by a Resale Registration Statement unless such
Holder shall have provided a Registration Notice in accordance with Section 3(d) hereof and is in
compliance with Section 5 hereof. None of the Company’s security holders (other than Holders of
Class F Conversion Stock or Demand Stock) shall have the right to include any of the Company’s
securities in a Resale Registration Statement.



          (b) If a Resale Registration Statement or any Subsequent Resale Registration Statement ceases
to be effective for any reason at any time during the applicable Effectiveness



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Period (other than because all securities registered thereunder shall have been resold
pursuant thereto or shall have otherwise ceased to be Class F Conversion Stock or Demand Stock),
the Company shall use reasonable efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of
effectiveness amend such Resale Registration Statement in a manner reasonably expected to obtain
the withdrawal of the order suspending the effectiveness thereof, or file an additional Resale
Registration Statement covering all of the securities that as of the date of such filing constitute
Class F Conversion Stock or Demand Stock (a “Subsequent Resale Registration Statement”).
If a Subsequent Resale Registration Statement is filed, the Company shall use reasonable efforts to
cause the Subsequent Resale Registration Statement to become effective as promptly as is
practicable after such filing (or, if filed during a Deferral Period, after the expiration of such
Deferral Period) and to keep such Subsequent Resale Registration Statement effective until the end
of the applicable Effectiveness Period.




          (c) The Company shall supplement and amend a Resale Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used by the Company for such
Resale Registration Statement, if required by the Securities Act or, to the extent to which the
Company does not reasonably object, as reasonably requested by the Holders of Class F Conversion
Stock or Demand Stock covered by such Resale Registration Statement.



          (d) If any Holder wishes to sell Class F Conversion Stock or Demand Stock pursuant to a Resale
Registration Statement and related Prospectus under this Section 3, it shall (x) deliver to the
Company a Registration Notice, and (y) sell any such Class F Conversion Stock or Demand Stock only
in accordance with this Section 3(d) and Section 5(i) hereof. Upon receipt of a Registration
Notice from a Holder in accordance with the foregoing sentence, the Company shall (i) name such
Holder as a selling security holder in a Resale Registration Statement filed with the SEC in
accordance with Section 3(a) hereof; (ii) provide such Holder copies of such Resale Registration
Statement (and any amendments thereto) promptly after filing thereof; and (iii) notify such Holder
as promptly as is reasonably practicable after the effectiveness under the Securities Act of such
Resale Registration Statement. Notwithstanding anything contained herein to the contrary, the
Company shall be under no obligation to name any Holder of Class F Conversion Stock or Demand Stock
that is not a Notice Holder as a selling security holder in any Registration Statement or related
Prospectus; provided, however, that any Holder of Class F Conversion Stock or
Demand Stock that becomes a Notice Holder pursuant to the provisions of this Section 3(d) (whether
or not such Holder was a Notice Holder at the time the Registration Statement was initially
declared effective) shall be named as a selling security holder in the Registration Statement or
related Prospectus subject to and in accordance with the requirements of this Section 3(d).



          Section 4. Shelf Registration Rights for Class F Conversion Stock and Demand Stock.



          (a) Promptly after, and in any event no later than thirty (30) days after, (x) the Company
meets the “Registrant Requirement” of Form S-3 and (y) a proposed resale of Class F Conversion
Stock or Demand Stock by the Holders thereof would meet the “Transaction Requirement” of Form S-3,
the Company shall prepare and file or cause to be prepared and filed



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with the SEC a Registration Statement on Form S-3 registering the resale, from time to time on
a delayed basis pursuant to Rule 415 under the Securities Act (a “Resale Shelf Registration
Statement”), of Class F Conversion Stock and Demand Stock by the Holders thereof (the
“Initial Resale Shelf Registration Statement”). The Company shall use reasonable efforts
to cause the Initial Resale Shelf Registration Statement to be declared effective under the
Securities Act as promptly as is practicable but in any event by the date that is sixty (60) days
following the initial filing thereof with the SEC, and to keep the Initial Resale Shelf
Registration Statement (or any Subsequent Resale Shelf Registration Statement) continuously
effective under the Securities Act until the expiration of the Effectiveness Period;
provided, however, that no Holder shall be entitled to have the Class F Conversion
Stock or Demand Stock held by it covered by such Resale Shelf Registration Statement unless such
Holder shall have provided a Registration Notice in accordance with Section 4(d) hereof and is in
compliance with Section 5 hereof. None of the Company’s security holders (other than Holders of
Class F Conversion Stock or Demand Stock) shall have the right to include any of the Company’s
securities in the Resale Shelf Registration Statement.




          (b) If the Initial Resale Shelf Registration Statement or any Subsequent Resale Shelf
Registration Statement ceases to be effective for any reason at any time during the Effectiveness
Period (other than because all securities registered thereunder shall have been resold pursuant
thereto or shall have otherwise ceased to be Class F Conversion Stock or Demand Stock), the Company
shall use reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such cessation of
effectiveness amend the Resale Shelf Registration Statement in a manner reasonably expected to
obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional
Resale Shelf Registration Statement covering Class F Conversion Stock or Demand Stock (a
“Subsequent Resale Shelf Registration Statement”). If a Subsequent Resale Shelf
Registration Statement is filed, the Company shall use reasonable efforts to cause the Subsequent
Resale Shelf Registration Statement to become effective as promptly as is practicable after such
filing (or, if filed during a Deferral Period, after the expiration of such Deferral Period) and to
keep such Subsequent Resale Shelf Registration Statement continuously effective until the end of
the applicable Effectiveness Period.



          (c) The Company shall supplement and amend the Resale Shelf Registration Statement if required
by the rules, regulations or instructions applicable to Form S-3, if required by the Securities Act
or, to the extent to which the Company does not reasonably object, as reasonably requested by the
Holders of Class F Conversion Stock or Demand Stock covered by such Resale Shelf Registration
Statement.



          (d) If any Holder wishes to sell Class F Conversion Stock or Demand Stock pursuant to a Resale
Shelf Registration Statement and related Prospectus under this Section 4, it shall (x) deliver a
Registration Notice to the Company at least two (2) Business Days prior to any intended
distribution of Class F Conversion Stock or Demand Stock under such Resale Shelf Registration
Statement, and (y) sell any such Class F Conversion Stock or Demand Stock only in accordance with
this Section 4(d) and Section 5(i) hereof. From and after the date the Initial Resale Shelf
Registration Statement is declared effective, the Company shall, (i)(A) as promptly as is
practicable after the date a Registration Notice is delivered, but in any event within two (2)
Business Days after such date, prepare and, if required by applicable federal securities law, file



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with the SEC a supplement to the related Prospectus or, if required by applicable federal
securities law, file a post-effective amendment to the Resale Shelf Registration Statement or an
amendment to any document incorporated therein by reference or file any other document required by
the SEC so that the Holder delivering such Registration Notice is named as a selling security
holder in the Resale Shelf Registration Statement or the related Prospectus in such a manner as to
permit such Holder to deliver such Prospectus to purchasers of Class F Conversion Stock or Demand
Stock in accordance with applicable law (other than laws not generally applicable to all Holders
wishing to sell Class F Conversion Stock or Demand Stock pursuant to the Resale Shelf Registration
Statement and related Prospectus), and (B) if the Company shall file a post-effective amendment to
the Resale Shelf Registration Statement, use reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly as is practicable; (ii)
provide such Holder copies of any documents filed pursuant to Section 4(d)(i) hereof; and (iii)
notify such Holder as promptly as is reasonably practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section 4(d)(i) hereof;
provided that if such Resale Registration Notice is delivered during a Deferral Period, the
Company shall so inform the Holder delivering such Registration Notice and shall take the actions
set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance
with Section 5(i) hereof; provided further that if under applicable law the Company
has more than one option as to the type or manner of making any such filing, as set forth in an
opinion of a nationally recognized counsel experienced in such matters delivered by the Holder to
the Company, it will make the required filing or filings in the manner or of a type that is
reasonably expected to result in the earliest availability of the Prospectus for effecting resales
of Class F Conversion Stock or Demand Stock. Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to name any Holder of Class F Conversion Stock
or Demand Stock that is not a Notice Holder as a selling security holder in any Registration
Statement or related Prospectus; provided, however, that any Holder of Conversion
Stock or Demand Stock that becomes a Notice Holder pursuant to the provisions of this Section 4(d)
(whether or not such Holder was a Notice Holder at the time the Registration Statement was
initially declared effective) shall be named as a selling security holder in the Registration
Statement or related Prospectus subject to and in accordance with the requirements of this Section
4(d).




          Section 5. Registration Procedures.



          In connection with the registration obligations of the Company under Sections 2, 3 and 4
hereof, the Company shall:



          (a) Before filing any Registration Statement or Prospectus or any amendments or supplements
(other than supplements solely for the purpose of naming one or more Notice Holders as selling
stockholders) thereto with the SEC, furnish to TCI copies of all such documents proposed to be
filed and use reasonable efforts to reflect in each such document when so filed with the SEC such
comments as TCI reasonably shall propose within three (3) Business Days of the delivery of such
copies to TCI.



          (b) Prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable Effectiveness Period; cause the related



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Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
and use reasonable efforts to comply with the provisions of the Securities Act applicable to it
with respect to the disposition of all securities covered by such Registration Statement during the
Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement as so amended or such Prospectus as so supplemented.




          (c) As promptly as practicable, give notice to TCI and the Notice Holders (i) when any
Prospectus, Prospectus supplement, Registration Statement or post-effective amendment to a
Registration Statement has been filed with the SEC and, with respect to a Registration Statement or
any post-effective amendment, when the same has been declared effective (provided,
however, that the Company shall not be required by this clause (i) to notify TCI or any
Notice Holder of the filing of a Prospectus supplement solely for the purpose of naming one or more
Notice Holders as selling stockholders), (ii) of any request, following the effectiveness of the
Resale Registration Statement under the Securities Act, by the SEC or any other federal or state
governmental authority for amendments or supplements to any Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the effectiveness of any Registration
Statement or the initiation or threatening of any proceedings for that purpose, (iv) of the receipt
by the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the occurrence of (but not the
nature of or details concerning) a Material Event (provided, however, that no notice by the Company
shall be required pursuant to this clause (v) in the event that the Company either promptly files a
Prospectus supplement to update the Prospectus or a Form 8-K or other appropriate Exchange Act
report that is incorporated by reference into the Registration Statement, which, in either case,
contains the requisite information with respect to such Material Event that results in such
Registration Statement no longer containing any untrue statement of material fact or omitting to
state a material fact necessary to make the statements contained therein not misleading) and (vi)
of the determination by the Company that a post-effective amendment to a Registration Statement
will be filed with the SEC, which notice may, at the discretion of the Company (or as required
pursuant to Section 5(i)), state that it constitutes a Deferral Notice, in which event the
provisions of Section 5(i) shall apply.



          (d) Use reasonable efforts to obtain the withdrawal of any order suspending the effectiveness
of a Registration Statement or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case at the earliest possible moment or, if any such order
or suspension is made effective during any Deferral Period, at the earliest possible moment after
the expiration of such Deferral Period.



          (e) If reasonably requested by TCI or any Notice Holder, promptly as reasonably practicable
incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such
information as TCI or such Notice Holder shall, on the basis of a written opinion of nationally
recognized counsel experienced in such matters, determine to be required to be included therein by
applicable federal securities law and make any required filings



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of such Prospectus supplement or such post-effective amendment; provided, that the
Company shall not be required to take any actions under this Section 5(e) that are not, in the
reasonable opinion of counsel for the Company, in compliance with applicable law.




          (f) As promptly as reasonably practicable furnish to TCI and each Notice Holder, upon their
request and without charge, at least one (1) conformed copy of the Registration Statement and any
amendment thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits (unless requested
in writing to the Company by TCI or such Notice Holder, as the case may be).



          (g) During the Effectiveness Period, deliver to each Notice Holder and to each underwriter of
an underwritten offering of the Registrable Securities, if applicable, in connection with any sale
of Registrable Securities pursuant to a Registration Statement, without charge, as many copies of
the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such Notice Holder or such underwriter may
reasonably request; and the Company hereby consents (except during such periods that a Deferral
Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder and by each underwriter of an underwritten offering of the
Registrable Securities, if applicable, in connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto in the manner set
forth therein.



          (h) Prior to any public offering of the Registrable Securities pursuant to a Registration
Statement, use reasonable efforts to register or qualify or cooperate with the Notice Holders in
connection with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any Notice Holder reasonably requests in
writing (which request may be included in the Registration Notice), it being agreed that no such
registration or qualification will be made unless so requested; prior to any public offering of the
Registrable Securities pursuant to the Registration Statement, use reasonable efforts to keep each
such registration or qualification (or exemption therefrom) effective during the Effectiveness
Period in connection with such Notice Holder’s offer and sale of Registrable Securities pursuant to
such registration or qualification (or exemption therefrom) and do any and all other acts or things
necessary to enable the disposition in such jurisdictions of such Registrable Securities in the
manner set forth in the relevant Registration Statement and the related Prospectus;
provided that the Company will not be required to (i) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify
but for this Agreement or (ii) take any action that would subject it to general service of process
in suits or to taxation in any such jurisdiction where it is not then so subject.



          (i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of a
Registration Statement or the initiation of proceedings with respect to a Registration Statement
under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a “Material Event”) as a result of which any Registration Statement shall
contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or any



11









 





Prospectus shall contain any untrue statement of a material fact or omit 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 (including, in any such case, as a result
of the non-availability of financial statements), or (C) the occurrence or existence of any pending
corporate development that, in the discretion of the Company acting reasonably, makes it necessary
to suspend the availability of a Registration Statement and the related Prospectus, including, in
the case of a proposed disposition of Demand Stock by a Holder, the Company’s preparation to make,
or the Company’s making of, an underwritten offering of any of the Company’s securities if the lead
managing underwriter in such offering has informed the Company in writing that in such
underwriter’s view the disposition of such Demand Stock would adversely affect the success of such
offering by the Company, including the price at which such securities offered by the Company can be
sold, (i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable
prepare and file a post-effective amendment to such Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Registration Statement and Prospectus so
that such Registration Statement does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading, and such Prospectus does not contain any untrue statement of a material
fact or omit 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,
as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and,
in the case of a post-effective amendment to a Registration Statement, subject to the next
sentence, use all reasonable efforts to cause it to be declared effective as promptly as is
reasonably practicable, and (ii) give notice to the Notice Holders that the availability of a
Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the
Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended
Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that
the Prospectus may be used, and has received copies of any additional or supplemental filings that
are incorporated or deemed incorporated by reference in such Prospectus. The Company will use
reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of
clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as,
in the reasonable judgment of the Company, public disclosure of such Material Event would not be
prejudicial to the interests of the Company or, if necessary to avoid unreasonable burden or
expense, as soon as reasonably practicable thereafter and (z) in the case of clause (C) above, as
soon as, in the discretion of the Company acting reasonably, such suspension is no longer
necessary. The period during which the availability of any Registration Statement and any
Prospectus is suspended (the “Deferral Period”) shall not exceed forty-five (45) days in
any three (3) month period and ninety (90) days in any twelve (12) month period.




          (j) If reasonably requested in writing in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, (i) make reasonably available for inspection
during normal business hours by any representative for the Notice Holders of such Registrable
Securities and any broker-dealers, attorneys and accountants retained by such Notice Holders, and
any representatives of underwriters participating in an underwritten offering of any Registrable
Securities, if applicable, all relevant financial and other records, pertinent corporate



12









 





documents and properties of the Company and its subsidiaries, (ii) cause the appropriate
executive officers, directors and designated employees of the Company and its subsidiaries to make
reasonably available for inspection during normal business hours all relevant information
reasonably requested by such representative for the Notice Holders or any such broker-dealers,
attorneys or accountants, or any such representatives of underwriters, if applicable, in connection
with such disposition and (iii) provide such representative for the Notice Holders or any such
broker-dealers, attorneys or accountants, or any such representatives of underwriters, if
applicable, with reasonable opportunities to discuss the business of the Company and its Affiliates
with the Company’s officers and with the independent certified public accountants who have audited
the Company’s most recent annual financial statements, in each case as is customary for similar
“due diligence” examinations; provided, however, that such persons shall first
agree in writing with the Company that any information that is reasonably and in good faith
designated by the Company in writing as confidential at the time of delivery of such information
shall be kept confidential by such persons and shall be used solely for the purposes of exercising
rights under this Agreement, unless (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Registration Statement or the use
of any Prospectus referred to in this Agreement), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a source other than the
Company and such source is not (to the knowledge of such person) bound by a confidentiality
agreement; and provided further that the foregoing inspection and information
gathering shall, to the greatest extent reasonably possible, be coordinated on behalf of all the
Notice Holders, underwriters, if any, and the other parties entitled thereto by the underwriters’
counsel, in the case of an underwritten offering of Registrable Securities, or by the counsel for
the Notice Holders referred to in Section 7 hereof, including the designation of a common
broker-dealer, attorney and accountant acceptable to all such Notice Holders to act as their
representative.




          (k) Comply with all applicable rules and regulations of the SEC and make generally available
to its stockholders earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any twelve-month period (or 90 days
after the end of any twelve-month period if such period is a fiscal year) commencing on the first
day of the first fiscal quarter of the Company commencing after the effective date of a
Registration Statement, which statements shall cover said twelve-month periods.



          (l) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold pursuant to a Registration Statement, and
cause such Registrable Securities to be in such denominations and registered in such names as such
Notice Holder may request in writing at least two Business Days prior to any sale of such
Registrable Securities.



          (m) Provide a CUSIP number for all Registrable Securities covered by each Registration
Statement not later than the effective date of such Registration Statement and



13









 





provide the transfer agent for the Securities with printed certificates for the Registrable
Securities.




          (n) Make a reasonable effort to provide such information as is required for any filings
required to be made with the National Association of Securities Dealers, Inc.



          (o) Enter into such customary agreements (including underwriting agreements) and take all
other customary and appropriate actions (including those reasonably requested by Holders of the
Registrable Securities being sold) in order to expedite or facilitate disposition of such
Registrable Securities and in such connection:




     (i) make such representations and warranties to the underwriters in an underwritten
offering of any Registrable Securities, 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 the managing underwriter, if any;




     (ii) obtain opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any) addressed to the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or underwritten offerings
and such other matters as may be reasonably requested by the managing underwriter, if any;




     (iii) obtain “cold comfort” letters and updates thereof from the Company’s independent
certified public accountants addressed to the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in “cold comfort”
letters to underwriters in connection with similar underwritten offerings;




     (iv) if an underwriting agreement is entered into in the case of an underwritten
offering, cause the same to set forth indemnification provisions and procedures with respect
to the underwriters and all other parties to be indemnified pursuant to Section 9 hereof
substantially equivalent to the indemnification provisions and procedures set forth in
Section 9 hereof; and




     (v) deliver such documents and certificates as may be reasonably requested and as are
customarily delivered in similar offerings.



The above customary and appropriate actions set forth in this clause (o) shall be taken at each
closing under any underwriting or similar agreement as and to the extent reasonably required
thereunder.




          Section 6. Holder’s Obligations.



          Each Holder agrees that:



          (a) upon providing a Registration Notice that contains substantially the information required
by clause (b) of this Section 6, such Holder shall become a Notice Holder



14









 





within the meaning of this Agreement and shall have the rights and obligations applicable to
Holders and/or Notice Holders under this Agreement;




          (b) it shall be not be entitled to sell any Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto unless such Holder has furnished the Company
with a Registration Notice, within the time prescribed by this Agreement, relating to such
Registration Statement and containing (i)(A) if such Holder is not included as a selling
stockholder in the Prospectus relating to such Registration Statement, all information regarding
such Holder and the distribution of such Registrable Securities that is required to be disclosed in
such Prospectus, or (B) if such Holder is included as a selling stockholder in the Prospectus
relating to such Registration Statement, (x) any information regarding such Holder and the
distribution of such Registrable Securities that is required to be disclosed in such Prospectus in
order to make the information previously furnished to the Company regarding such Holder and the
distribution of such Registrable Securities contained in such Prospectus not misleading, or (y) a
certification from such Holder that no such information is required to be disclosed, (ii) in the
case of a Registration Notice relating to the registration of Class F Conversion Stock,
certification of the occurrence of a Class F Conversion Event, (iii) any other information
regarding such Holder and the distribution of such Registrable Securities as may be required to be
disclosed in such Registration Statement or the related Prospectus under applicable law or pursuant
to SEC comments or requests, and (iv) any information reasonably required by the Company to comply
with applicable law or regulation, based on the advice of counsel;



          (c) following the termination of the applicable Effectiveness Period, it will notify the
Company within ten (10) Business Days of request of the amount of Registrable Securities sold
pursuant to the Registration Statement;



          (d) if any of the Registrable Securities are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage the offering will
be selected by TCI and shall be reasonably acceptable to the Company; and



          (e) no Holder may participate in any underwritten offering hereunder unless such Holder (i)
agrees to sell such Holder’s Registrable Securities on the basis provided in any applicable
underwriting agreement and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, agreements and other documents required under the terms of such underwriting
agreement.



          Section 7. Registration Expenses.



          The Company shall bear all fees and expenses incurred in connection with the performance by
the Company of its obligations under Sections 2 through 5 hereof whether or not any of the
Registration Statements are declared effective. Such fees and expenses shall include, without
limitation, (i) all registration and filing fees (including, without limitation, fees and expenses
(x) with respect to filings required to be made with the National Association of Securities
Dealers, Inc. and the New York Stock Exchange and (y) of compliance with federal and state
securities or Blue Sky laws to the extent such filings or compliance are required



15









 





pursuant to this Agreement (including, without limitation, reasonable fees and disbursements
of the counsel specified in the next sentence in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the Holders of a majority of the
Registrable Securities being sold pursuant to a Registration Statement may designate)), (ii)
printing expenses (including, without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company), (iii) all expenses
(including, without limitation, reasonable fees and disbursements of counsel specified in the next
sentence) relating to the preparation, duplication, printing and distribution of any Registration
Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreement and
other documents relating to the performance of and compliance with this Agreement, (iv) fees and
disbursements of counsel for the Company in connection with a Registration Statement, and (v)
reasonable fees and disbursements of the registrar and transfer agent for the Common Stock. In
addition, the Company shall bear or reimburse the Notice Holders and underwriters, if any, for the
reasonable fees and disbursements of one firm of legal counsel for the Holders and such
underwriters, which shall be a nationally recognized law firm experienced in securities law matters
designated by the Company. In addition, the Company shall pay the internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities exchange on which
similar securities of the Company are then listed and the fees and expenses of any person,
including special experts, retained by the Company.




          Section 8. Representations and Warranties.



          The Company represents and warrants to, and agrees with, the Holders from time to time of
Registrable Securities that:



          (a) Each Registration Statement covering Registrable Securities and each Prospectus contained
therein or furnished pursuant to Section 5(f) and (g) hereof and any further amendments or
supplements to any such Registration Statement or Prospectus, when it becomes effective with the
SEC, as the case may be, and, in the case of an underwritten offering of Registrable Securities, at
the time of the closing under the underwriting agreement relating thereto, will conform in all
material respects to the applicable requirements of the Securities Act and will not contain 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 not misleading; and at all times subsequent to the time
and date a Registration is declared effective when a Prospectus would be required to be delivered
under the Securities Act, other than during a Deferral Period in accordance with Section 5(i)
hereof or from (i) such time as a notice has been given to the Holders pursuant to Section 5(c)(v)
hereof until (ii) such time as the Company furnishes an amended or supplemented Prospectus pursuant
to Section 5(g) hereof or such time as the Company provides notice that offers and sales pursuant
to a Registration Statement may continue, each such registration statement, and each Prospectus
(including any summary Prospectus) contained therein or furnished pursuant to Section 5 hereof, as
then amended or supplemented, will conform in all material respects to the applicable requirements
of the Securities Act; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in



16









 





writing to the Company (including a Registration Notice) by or on behalf of a Holder expressly
for use therein.




          (b) Any documents incorporated by reference in any Prospectus referred to in Section 8(a)
hereof, when they become or became effective or are or were filed with the SEC, as the case may be,
will conform or conformed in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company (including a Registration Notice) by a Holder expressly for use therein.



          (c) The execution, delivery and performance by the Company of this Agreement, and compliance
by the Company with the terms hereof and the consummation of the transactions contemplated hereby,
will not conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance which is material to the Company and its Subsidiaries, taken as a whole, upon any
property or assets of the Company or any of its Subsidiaries pursuant to, any agreement or
instrument which is material to the Company and its Subsidiaries, taken as a whole, to which the
Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound or to which any of the property or assets of the Company or any of its Subsidiaries is
subject, nor will such actions result in any violation of the provisions of the charter or by-laws
of the Company or any of its Subsidiaries or any statute or any judgment, order, decree, rule or
regulation which is material to the Company and its Subsidiaries, taken as a whole, of any court or
arbitrator or governmental agency or body having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties or assets; and no consent, approval,
authorization or order of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the Company of this Agreement and
compliance by the Company with the terms hereof and the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals, authorizations, filings,
registrations or qualifications (i) which shall have been obtained or made prior to the Issue Date
and (ii) as may be required to be obtained or made under the Securities Act and applicable state
securities laws.



          (d) This Agreement has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting enforcement of creditor’s
rights generally, or by general principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing) regardless of whether enforcement is
considered in a proceeding in equity or at law.



17









 





          Section 9. Indemnification; Contribution.



          (a) The Company agrees to indemnify and hold harmless TCI, any other Holder and each person,
if any, who controls TCI or any other Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:




     (i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were
made, not misleading or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or any Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;




     (ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that any such settlement is effected with the
prior written consent of the Company; and




     (iii) subject to Section 9(c) below, against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;



provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of TCI or such other Holder expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus or any Prospectus
(or any amendment or supplement thereto); provided further that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an
offer or sale of Registrable Securities occurring during a Deferral Period, if the indemnified
party is a Notice Holder that received a Deferral Notice, or (2) if the Holder fails to deliver at
or prior to written confirmation of sale, the most recent Prospectus, as amended or supplemented,
and such Prospectus, as amended or supplemented, would have corrected such untrue statement or
omission or alleged untrue statement or omission of a material fact.




          This indemnity agreement will be in addition to any liability that the Company may otherwise
have.



18









 





          (b) In connection with any Registration Statement in which a Holder is participating in
furnishing information relating to such Holder to the Company in writing expressly for use in such
Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements
thereto, TCI agrees to indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
and all loss, liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished to the Company by or
on behalf of any Holder expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).



          (c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 9 (whether or not the
indemnified parties are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified
party.



          (d) If the indemnification provided for in this Section 9 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified party on the other hand
in connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.



19









 





          The relative fault of the Company on the one hand and TCI on the other hand shall be
determined by reference to, among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or by or on behalf of the Holders and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.



          The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 9(d) were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this Section 9(d). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred by an indemnified
party and referred to above in this Section 9(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.



          Notwithstanding the provisions of this Section 9, TCI shall not be required to indemnify or
contribute any amount in excess of the amount by which the total price at which the Registrable
Securities sold by any Holders and distributed to the public were offered to the public exceeds the
amount of any damages that TCI has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.



          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.



          For purposes of this Section 9(d), each person, if any, who controls any Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Holder, and each director 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 or Section 20 of Exchange Act shall have the
same rights to contribution as the Company.



          Section 10. Information Requirements.



          The Company covenants that, if at any time before the end of the Effectiveness Period the
Company is not subject to the reporting requirements of the Exchange Act, it will cooperate with
any Holder and take such further reasonable action as any Holder may reasonably request in writing
(including, without limitation, making such reasonable representations as any such Holder may
reasonably request), all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of any Holder, the
Company shall deliver to such Holder a written statement as to whether it has complied with such
filing requirements, unless such a statement has been included in the Company’s most recent report
required to be filed and filed pursuant to Section 13 or



20









 





Section 15(d) of Exchange Act. Notwithstanding the foregoing, nothing in this Section 10
shall be deemed to require the Company to register any of its securities (other than the Common
Stock) under any section of the Exchange Act.




          Section 11. Miscellaneous.



          (a) No Conflicting Agreements. The Company is not, as of the date hereof, a party to,
nor shall it, on or after the date of this Agreement, enter into, any agreement with respect to its
securities that conflicts with the rights granted to the Holders in this Agreement. The Company
represents and warrants that the rights granted to the Holders hereunder do not in any way conflict
with the rights granted to the holders of the Company’s securities under any other agreements. The
parties hereto agree that a Registration Rights Agreement to be entered into by the Company, Trizec
Hungary and the Royal Bank of Canada in connection with a pledge of the Company’s common stock by
Trizec Hungary to secure a credit facility (the “Pledge Registration Rights Agreement”)
shall not conflict with this Agreement for the purposes of this Section 11(a). For greater
certainty and without limiting the foregoing, this Agreement shall be interpreted to allow the
Company to fulfill all of its obligations under the Pledge Registration Rights Agreement. The
Company agrees to cooperate with TCI to fully satisfy the obligations imposed by the Pledge
Registration Rights Agreement.



          (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, unless the Company has obtained the
written consent of Holders of a majority of the then outstanding Common Stock constituting
Registrable Securities. Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the rights of the Holders
whose securities are being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration Statement;
provided, that the provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence. Each Holder of
Registrable Securities outstanding at the time of any such amendment, modification, supplement,
waiver or consent or thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 11(b), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.



          (c) Notices. Any and all notices to be given to the Company shall be made in writing
by hand-delivery, first-class mail, any courier guaranteeing overnight delivery, or facsimile
transmission, addressed to Trizec Properties, Inc., 1114 Avenue of the Americas, 31st
Floor, New York, NY 10036, Attn: General Counsel, Facsimile No.: (212) 382-9359, or such other
address of which the Company notifies TCI.



          Any and all notices to be given to TCI shall be made in writing by hand-delivery, first-class
mail, any courier guaranteeing overnight delivery, or facsimile transmission, addressed to Trizec
Canada Inc., BCE Place, Wellington Tower, Suite 3900, 181 Bay Street, Toronto, ON



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M5J 2T3, Canada, Attn: Chief Financial Officer, Facsimile No.: (416) 364-5491, or such other
address of which TCI notifies the Company.




          All such notices shall be deemed to have been duly given: at the time of delivery, if
delivered by hand; five Business Days after being deposited in the mail, postage prepaid, if
delivered by first-class mail; on the next Business Day if timely delivered to a courier
guaranteeing overnight delivery; and if by facsimile transmission, at the time such facsimile
transmission is sent, provided that if the facsimile transmission is sent after the close of a
Business Day or on a day that is not a Business Day, the notice shall be deemed to have been duly
given on the next Business Day.



          (d) Third-Party Beneficiaries. All Notice Holders from time to time are intended
third-party beneficiaries of this Agreement and this Agreement may be enforced by such persons.



          (e) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties and shall inure to the benefit of
and be binding upon each Holder of any Registrable Securities.



          (f) 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
original and all of which taken together shall constitute one and the same agreement.



          (g) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



          (h) Governing Law. This agreement shall be governed by and construed in accordance
with the law of the State of New York, without regard to conflicts of laws principles thereof.



          (i) Severability. If any term, provision, covenant or restriction of this Agreement
is held to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it being intended
that all of the rights and privileges of the parties shall be enforceable to the fullest extent
permitted by law.



          (j) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and is 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 and the
registration rights granted by the Company with respect to the Registrable Securities. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with respect to the subject
matter hereof. This Agreement supersedes all prior agreements and undertakings among the parties
with respect to the subject matter hereof.



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          (k) Termination. This Agreement and the rights and obligations of the parties
hereunder shall continue to be effective: (i) with respect to Holders of Class F Conversion Stock,
for so long as any Holder owns shares of Class F convertible preferred stock that, pursuant to the
terms of the Company’s certificate of incorporation, may be converted into Common Stock; (ii) with
respect to Holders of Demand Stock, until all Holders of such stock may, pursuant to Rule 144(k)
under the Securities Act, sell such stock without regard to paragraphs (c), (e), (f) and (h) of
such rule; and (iii) with respect to Holders of TCI Redemption Stock, until the earliest of (A) the
date on which TCI shareholders may no longer elect to have their TCI shares redeemed, (B) the date
on which all TCI Redemption Stock has been disposed of, and (C) the date on which all Holders of
TCI Redemption Stock may, pursuant to Rule 144(k) under the Securities Act, sell such stock without
regard to paragraphs (c), (e), (f) and (h) of such rule. In the event that no Holders have any
rights under Sections 2, 3 or 4 hereof by operation of clauses (i) through (iii) of this Subsection
11(j), this Agreement shall terminate except for any liabilities or obligations under Sections 5, 6
or 8 hereof, each of which shall remain in effect in accordance with its terms.



[Remainder of this page intentionally left blank.]




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          IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of
the date first written above.



	 	 	 	 	 	 	 
	 	 	TRIZEC PROPERTIES, INC.
	 
	 	 	 	 	 	 
	

	 	By:
	 	 	 	/s/ Robin Campbell
	 	 	 	 	 
	

	 	 	 	Name:
	 	Robin Campbell
	

	 	 	 	Title:
	 	Vice President
	 
	 	 	 	 	 	 
	 	 	TRIZEC CANADA INC.
	 
	 	 	 	 	 	 
	

	 	By:
	 	 	 	/s/ Robert Wickham
	 	 	 	 	 
	

	 	 	 	Name:
	 	Robert Wickham
	

	 	 	 	Title:
	 	Chief Financial Officer and
	

	 	 	 	 	 	and Secretary
	 
	 	 	 	 	 	 
	 	 	EMERALD BLUE KFT
	 
	 	 	 	 	 	 
	

	 	By:
	 	 	 	/s/ Derek O’Reilly
	 	 	 	 	 
	

	 	 	 	Name:
	 	Derek O’Reilly
	

	 	 	 	Title:
	 	Managing Director







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