EXHIBIT 10.4
PRICE ENTERPRISES, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of _______, 2001 (this
"AGREEMENT"), among Warburg, ▇▇▇▇▇▇ Equity Partners, L.P., a Delaware limited
partnership; Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners I, C.V., a Netherlands
limited partnership; Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners II, C.V., a
Netherlands limited partnership; and Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners
III, C.V., a Netherlands limited partnership (collectively, the "INVESTORS"),
and Price Enterprises, Inc., a Maryland corporation (the "COMPANY").
R E C I T A L S
WHEREAS, the Investors have, pursuant to the terms of that certain
Securities Purchase Agreement, dated as of March __, 2001, by and among the
Company and the Investors (the "PURCHASE AGREEMENT"), agreed to purchase shares
of 9% Series B Junior Convertible Redeemable Preferred Stock, par value $0.0001
per share, of the Company (the "SERIES B PREFERRED STOCK") and warrants to
purchase an aggregate of 2,500,000 shares of Common Stock of the Company, par
value $0.0001 per share ("COMMON STOCK"), at an exercise price of $8.25 per
share (the "WARRANTS"); and
WHEREAS, the shares of Series B Preferred Stock are convertible into shares
of Common Stock; and
WHEREAS, the Company has agreed, as a condition precedent to the Investors'
obligations under the Purchase Agreement, to grant the Investors certain
registration rights; and
WHEREAS, the Company and the Investors desire to define the registration
rights of the Investors on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective meanings
set forth below:
AFFILIATE: shall mean any Person or entity, directly or indirectly
controlling, controlled by or under common control with such Person or entity;
COMMISSION: shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act;
EXCHANGE ACT: shall mean the Securities Exchange Act of 1934, as amended;
HOLDER: shall mean any holder of Registrable Securities;
INITIATING HOLDER: shall mean the Investors;
PERMITTED TRANSFEREE: shall mean (a) an Affiliate or constituent partner of
a Holder (including limited partners, retired partners, and spouses, ancestors,
descendants and other members of such partners' immediate families, and trusts
for the benefit of any such party) or (b) any Person who acquires at least
[1,000,000] shares of Registrable Securities (as appropriately adjusted for
stock splits, combinations, recapitalizations and the like); PROVIDED, HOWEVER,
with respect to the Warrant and the shares of Common Stock issuable upon the
exercise of the Warrant, "PERMITTED TRANSFEREE" shall mean any Person;
PERSON: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
REGISTER, REGISTERED and REGISTRATION: shall mean a registration effected
by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
REGISTRABLE SECURITIES: shall mean (A) shares of Common Stock issuable upon
conversion of the Series B Preferred Stock, (B) shares of Common Stock issuable
upon exercise of the Warrant, (C) any additional shares of Common Stock acquired
by the Investors and (D) any capital stock of the Company issued as a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the Warrant, the shares of Series B Preferred Stock or Common Stock referred to
in clause (A), (B) or(C);
REGISTRATION EXPENSES: shall mean all expenses incurred by the Company in
compliance with Sections 2(a) and (b) hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, fees and expenses of one counsel for all the Holders in
an amount not to exceed $15,000, blue sky fees and expenses and the expense of
any special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company);
SECURITY, SECURITIES: shall have the meaning set forth in Section 2(1) of
the Securities Act;
SECURITIES ACT: shall mean the Securities Act of 1933, as amended; and
SELLING EXPENSES: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel for all the Holders in an amount not to exceed $15,000.
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SECTION 2. REGISTRATION RIGHTS
(a) REQUESTED REGISTRATION.
(i) REQUEST FOR REGISTRATION. If the Company shall receive from an
Initiating Holder, at any time a written request that the Company effect
any registration with respect to all or a part of the Registrable
Securities, the Company will:
(A) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(B) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the execution
of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws
and appropriate compliance with applicable regulations issued under
the Securities Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request
received by the Company within ten (10) business days after written
notice from the Company is given under Section 2(a)(i)(A) above;
provided that the Company shall not be obligated to effect, or take
any action to effect, any such registration pursuant to this Section
2(a):
(v) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of
process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities
Act or applicable rules or regulations thereunder;
(w) After the Company has effected two (2) such
registrations pursuant to this Section 2(a) and such
registrations have been declared or ordered effective and the
sales of such Registrable Securities shall have closed;
(x) If the Registrable Securities requested by all Holders
to be registered pursuant to such request do not have an
anticipated aggregate public offering price (before any
underwriting discounts and commissions) of not less than
$10,000,000;
(y) Within one hundred eighty (180) days of the effective
date of the most recent registration pursuant to this Section 2
in which securities held by the requesting Holder could have been
included for sale or distribution; or
(z) If the Company shall furnish to such Holders a
certificate, signed by the President or Chief Executive Officer
of the Company, stating that in the good faith judgment of the
Board of Directors it would be detrimental to the Company or its
stockholders for a Registration Statement to be filed in the near
future, then the Company's obligations under this Agreement shall
be deferred for a period not to exceed one hundred twenty (120)
days from the date of receipt of written request from the
Initiating Holders; PROVIDED, HOWEVER, that the Company may not
utilize this right more than once in any twelve (12) month
period.
The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 2(a)(ii) below, include other
securities of the Company
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which are held by Persons who, by virtue of agreements with the Company or
otherwise, are entitled to include their securities in any such registration
("OTHER STOCKHOLDERS").
(ii) UNDERWRITING. If any Initiating Holder intends to distribute the
Registrable Securities covered by their request by means of an
underwriting, it shall so advise the Company as a part of its request made
pursuant to Section 2(a).
If Other Stockholders request such inclusion, the Initiating Holders shall
offer to include the securities of such Other Stockholders in the underwriting
and may condition such offer on their acceptance of the further applicable
provisions of this Section 2. The Initiating Holders whose shares are to be
included in such registration and the Company shall (together with all Other
Stockholders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for such underwriting by the
Initiating Holders and reasonably acceptable to the Company. Notwithstanding any
other provision of this Section 2(a), if such representative advises the Holders
in writing that marketing factors require a limitation on the number of shares
to be underwritten, the securities of the Company held by Other Stockholders
shall be excluded from such registration to the extent so required by such
limitation. If, after the exclusion of such shares, further reductions are still
required, the number of shares included in the registration by each Initiating
Holder shall be reduced on a pro rata basis (based on the number of shares held
by such Initiating Holder), by such minimum number of shares as is necessary to
comply with such request. No Registrable Securities or any other securities
excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration. If any Other Stockholder who
has requested inclusion in such registration as provided above disapproves of
the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, the underwriter and the Initiating Holders. The
securities so withdrawn shall also be withdrawn from registration. If the
underwriter has not limited the number of Registrable Securities or other
securities to be underwritten, the Company and officers and directors of the
Company may include its or their securities for its or their own account, in
such registration if the representative so agrees and if the number of
Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.
(b) COMPANY REGISTRATION.
(i) INCLUSION IN REGISTRATION. If the Company shall determine to
register any of its equity securities either for its own account or for the
account of Other Stockholders, other than a registration relating solely to
employee benefit plans, or a registration relating solely to a Commission
Rule 145 transaction, or a registration on any registration form which does
not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
(A) promptly give to each of the Holders written notice thereof
(which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable
blue sky or other state securities laws); and
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(B) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a
written request or requests, made by the Holders within ten (10)
business days after receipt of the written notice from the Company
described in Section 2(b)(i)(A) above, except as set forth in Section
2(b)(ii) below. Such written request may specify all or a part of the
Holders' respective Registrable Securities.
(ii) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 2(b)(i)(A). In such event, the right of each of
the Holders to registration pursuant to this Section 2(b) shall be
conditioned upon such Holders' participation in such underwriting and the
inclusion of such Holders' Registrable Securities in the underwriting to
the extent provided herein; PROVIDED, HOWEVER, that the Investors shall not
be required to participate in such underwriting if the Investors notify the
Company that they are seeking registration of their shares solely to enable
a distribution of such shares to their partners or their Affiliates'
partners. The Holders whose shares are to be included in such registration
(other than the Investors, if the Investors elect not to participate in
such underwriting) shall (together with the Company and the Other
Stockholders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the representative of
the underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2(b), if such
representative determines that marketing factors require a limitation on
the number of shares to be underwritten, the representative may (subject to
the allocation priority set forth below) limit the number of Registrable
Securities to be included in the registration and underwriting to not less
than fifty percent (50%) of the shares included therein (based on the
number of shares). The Company shall immediately advise all holders of
securities of the Company requesting registration of such limitation, and
the number of shares of such securities that are entitled to be included in
the registration and underwriting shall be allocated in the following
manner: The securities of the Company held by officers, directors and Other
Stockholders of the Company (other than Registrable Securities and other
than securities held by holders who by contractual right demanded such
registration ("DEMANDING HOLDERS")) shall be excluded from such
registration and underwriting to the extent required by such limitation,
and, if a limitation on the number of shares is still required, the number
of shares that may be included in the registration and underwriting by each
of the Holders shall be reduced, on a pro rata basis (based on the number
of shares held by such Holder), by such minimum number of shares as is
necessary to comply with such limitation. If any of the Holders or any
officer, director or Other Stockholder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
(c) FORM S-3. The Investors shall hereby have the right to, from time to
time and in their sole discretion, request an unlimited number of registrations
on Form S-3 (such requests shall be in writing and shall state the number of
shares of Registrable Securities to be disposed of and the intended method of
disposition of shares by such Holders), subject only to the following:
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(i) The Company shall not be required to effect a registration
pursuant to this Section 2(c) unless the Holder or Holders requesting
registration propose to dispose of shares of Registrable Securities having
an aggregate price to the public (before deduction of underwriting
discounts and expenses of sale) of more than $5,000,000.
(ii) The Company shall not be required to effect a registration
pursuant to this Section 2(c) within one hundred eighty (180) days of the
effective date of the most recent registration pursuant to this Section 2
in which securities held by the requesting Holder could have been included
for sale or distribution.
(iii) The Company shall not be required to effect a registration
pursuant to this Section 2(c) if the Company shall furnish to such Holders
a certificate, signed by the President or Chief Executive Officer of the
Company, stating that in the good faith judgment of the Board of Directors
it would be detrimental to the Company or its stockholders for a
Registration Statement to be filed in the near future, then the Company's
obligations under this Agreement shall be deferred for a period not to
exceed one hundred twenty (120) days from the date of receipt of written
request from the Initiating Holders; PROVIDED, HOWEVER, that the Company
may not utilize this right more than once in any twelve (12) month period.
(iv) The Company shall not be obligated to effect any registration
pursuant to this Section 2(c) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act or applicable rules or regulations
thereunder.
The Company shall give written notice to all Holders of the receipt of a
request for registration pursuant to this Section 2(c) and shall provide a
reasonable opportunity for other Holders to participate in the registration,
provided that if the registration is for an underwritten offering, the terms of
Section 2(a)(ii) hereof shall apply to all participants in such offering.
Subject to the foregoing, the Company will use its best efforts to effect
promptly the registration of all shares of Registrable Securities on Form S-3 to
the extent requested by the Holder or Holders thereof for purposes of
disposition.
(d) EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Company, and all Selling Expenses shall be borne
by the Holders of the securities so registered pro rata on the basis of the
number of their shares so registered; PROVIDED, HOWEVER, that if, as a result of
the withdrawal of a request for registration by any of the Holders, as
applicable, the registration statement does not become effective, the Holders
and Other Stockholders requesting registration may elect to bear the
Registration Expenses (pro rata on the basis of the number of their shares so
included in the registration request, or on such other basis as such Holders and
Other Stockholders may agree), in which case such registration shall not be
counted as a registration pursuant to Section 2(a)(i) or Section 2(c).
(e) REGISTRATION PROCEDURES. In the case of each registration effected by
the Company pursuant to this Section 2, the Company will keep the Holders, as
applicable, advised in writing
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as to the initiation of each registration and as to the completion thereof. At
its expense, the Company will:
(i) keep such registration effective for a period of one hundred
twenty (120) days or until the Holders, as applicable, have completed the
distribution described in the registration statement relating thereto,
whichever first occurs; PROVIDED, HOWEVER, that (A) such 120-day period
shall be extended for a period of time equal to the period during which the
Holders, as applicable, refrain from selling any securities included in
such registration in accordance with provisions in Section 2(k) hereof; and
(B) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such
120-day period shall be extended until all such Registrable Securities are
sold, provided that Rule 415, or any successor rule under the Securities
Act, permits an offering on a continuous or delayed basis, and provided
further that applicable rules under the Securities Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (y) includes any prospectus required by
Section 10(a) of the Securities Act or (z) reflects facts or events
representing a material or fundamental change in the information set forth
in the registration statement, the incorporation by reference of
information required to be included in (y) and (z) above to be contained in
periodic reports filed pursuant to Section 12 or 15(d) of the Exchange Act
in the registration statement;
(ii) furnish such number of prospectuses and other documents incident
thereto as each of the Holders, as applicable, from time to time may
reasonably request;
(iii) notify each Holder of Registrable Securities covered by such
registration at any time when a prospectus relating thereto is required to
be delivered under the Securities Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (1) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters
in an underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders participating in such registration,
addressed to the underwriters, if any, and to the Holders participating in
such registration and (2) a letter, dated as of such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders
participating in such registration, addressed to the underwriters, if any,
and if permitted by applicable accounting standards, to the Holders
participating in such registration.
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(f) INDEMNIFICATION.
(i) The Company will indemnify each of the Holders, as applicable,
each of its officers, directors and partners, and each person controlling
each of the Holders, with respect to each registration which has been
effected pursuant to this Section 2, and each underwriter, if any, and each
person who controls any underwriter, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including
any related registration statement, notification or the like) incident to
any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or the
Exchange Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection
with any such registration, qualification or compliance, and will reimburse
each of the Holders, each of its officers, directors and partners, and each
person controlling each of the Holders, each such underwriter and each
person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending
any such claim, loss, damage, liability or action; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission based upon written information furnished to
the Company by the Holders or underwriter and stated to be specifically for
use therein.
(ii) Each of the Holders will, if Registrable Securities held by it
are included in the securities as to which such registration, qualification
or compliance is being effected, indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who
controls the Company or such underwriter, each Other Stockholder and each
of their officers, directors, and partners, and each person controlling
such Other Stockholder against all claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
such registration statement, prospectus, offering circular or other
document made by such Holder in writing, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements by such Holder therein not misleading, and
will reimburse the Company and such Other Stockholders, directors,
officers, partners, persons, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action, in each
case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by such Holder and stated to be specifically for use therein;
PROVIDED, HOWEVER, that the obligations of each of the Holders hereunder
shall be limited to an amount equal to the net proceeds to such Holder of
securities sold as contemplated herein.
(iii) Each party entitled to indemnification under this Section 2(f)
(the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim
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as to which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting therefrom,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case
the fees and expenses of counsel shall be at the expense of the
Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2 unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party,
in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
Each Indemnified Party shall furnish such information regarding itself or
the claim in question as an Indemnifying Party may reasonably request in
writing and as shall be reasonably required in connection with the defense
of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is held
by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense
referred to herein, then the Indemnifying Party, in lieu of indemnifying
such Indemnified Party hereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the statements or
omissions which resulted in such loss, liability, claim, damage or expense,
as well as any other relevant equitable considerations. The relative fault
of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue (or alleged untrue)
statement of a material fact or the omission (or alleged omission) to state
a material fact relates to information supplied by the Indemnifying Party
or by the Indemnified Party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
(v) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering
contemplated by this Agreement are in conflict with the foregoing
provisions, the provisions in such underwriting agreement shall be
controlling.
(vi) The foregoing indemnity agreement of the Company and Holders is
subject to the condition that, insofar as they relate to any loss, claim,
liability or damage made in a preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time
the registration statement in question becomes effective or the amended
prospectus filed with the Commission pursuant to Commission Rule 424(b)
(the "FINAL PROSPECTUS"), such indemnity or contribution agreement shall
not inure to the benefit of any underwriter or Holder if a copy of the
Final Prospectus was furnished to the underwriter and was
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not furnished to the person asserting the loss, liability, claim or damage
at or prior to the time such action is required by the Securities Act.
(g) INFORMATION BY THE HOLDERS.
(i) Each of the Holders holding securities included in any
registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to
in this Section 2.
(ii) In the event that, either immediately prior to or subsequent to
the effectiveness of any registration statement, any Holder shall
distribute Registrable Securities to its partners, such Holder shall so
advise the Company and provide such information as shall be necessary to
permit an amendment to such registration statement to provide information
with respect to such partners, as selling securityholders. Promptly
following receipt of such information, the Company shall file an
appropriate amendment to such registration statement reflecting the
information so provided. Any incremental expense to the Company resulting
from such amendment shall be borne by such Holder.
(h) RULE 144 REPORTING.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act ("RULE 144");
(ii) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) so long as any Holder owns any Registrable Securities, furnish
to such Holder upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so
filed as such Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing such Holder to sell any such
securities without registration.
(i) ASSIGNMENT. The registration rights set forth in this Section 2 may be
assigned, in whole or in part, to Permitted Transferees (who shall be bound by
all obligations of this Agreement).
(j) TERMINATION. The registration rights set forth in this Section 2 shall
not be available to any Holder if, in the opinion of counsel to the Company, all
of the Registrable Securities then owned by such Holder could be sold in any
90-day period pursuant to Rule 144 (without giving effect to the provisions of
Rule 144(k)).
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(k) DISCONTINUANCE. The Investors agree that upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
2(e)(iii), the Investors will, to the extent appropriate, discontinue their
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until their receipt of the copies of the
supplemented or amended prospectus that shall not include an untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made and, if so directed by the Company,
will deliver to the Company all copies, other than permanent file copies, then
in their possession, of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
SECTION 3. MISCELLANEOUS
(a) DIRECTLY OR INDIRECTLY. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
(b) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to the
choice of law principles thereof) which are applicable to contracts made and to
be performed entirely within such State.
(c) SECTION HEADINGS. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part hereof.
(d) NOTICES.
(i) All communications under this Agreement shall be in writing and
shall be delivered by hand or facsimile or mailed by overnight courier or
by registered or certified mail, postage prepaid:
(A) if to the Company, to Price Enterprises, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇. ▇▇▇▇▇ and S. ▇▇▇▇ ▇▇▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy
to ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ or at such other address as
the Company may have furnished in writing to the Investors;
(B) if to the Investors, at the address or facsimile number
listed on Schedule I hereto, or at such other address or facsimile
number as may have been furnished the Company in writing, with a copy
to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
(ii) Any notice so addressed shall be deemed to be given: if delivered
by hand or facsimile, on the date of such delivery; if mailed by courier,
on the first business day following the date of such mailing; and if mailed
by registered or certified mail, on the third business day after the date
of such mailing.
11
(e) REPRODUCTION OF DOCUMENTS. This Agreement and all documents relating
thereto, including, without limitation, any consents, waivers and modifications
which may hereafter be executed may be reproduced by the Investors by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and the Investors may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investors in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(f) SUCCESSORS AND ASSIGNS. Subject to Section 2(i) hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties.
(g) ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement and the other
Transaction Documents (as defined in the Purchase Agreement) constitute the
entire understanding of the parties hereto and supersede all prior and
contemporaneous understandings and agreements among such parties with respect to
subject matter hereof. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and the Investors holding a majority of the then outstanding
Registrable Securities.
(h) SEVERABILITY. In the event that any part or parts of this Agreement
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not affect the remaining
provisions of this Agreement, which shall remain in full force and effect.
(i) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
PRICE ENTERPRISES, INC.
By:
-------------------------------------------
Name:
Title:
INVESTORS:
WARBURG, ▇▇▇▇▇▇ EQUITY PARTNERS, L.P.
By: Warburg, ▇▇▇▇▇▇ & Co.,
General Partner
By:
-------------------------------------------
Name:
Title:
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY PARTNERS I,
C.V.
By: Warburg, ▇▇▇▇▇▇ & Co.,
General Partner
By:
-------------------------------------------
Name:
Title:
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY PARTNERS
II, C.V.
By: Warburg, ▇▇▇▇▇▇ & Co.,
General Partner
By:
-------------------------------------------
Name:
Title:
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY PARTNERS
III, C.V.
By: Warburg, ▇▇▇▇▇▇ & Co.,
General Partner
By:
-------------------------------------------
Name:
Title:
SCHEDULE I
NAME AND ADDRESS OF INVESTOR
----------------------------
Warburg, ▇▇▇▇▇▇ Equity Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [_______]
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners I, C.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [_______]
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners II, C.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [_______]
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners III, C.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [_______]
