Exhibit 4.1
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of this 29th day of May, 2003
(this "Agreement"), by and among Urstadt Xxxxxx Properties Inc., a Maryland
corporation (the "Company"), and Xxxxxx, Xxxxx Xxxxx, Incorporated and Xxxxxx,
Xxxxxxxx & Company, Incorporated, (each individually an "Initial Purchaser" and
collectively the "Initial Purchasers") as attorneys-in-fact for and on behalf of
each person listed on Exhibit A hereto.
W I T N E S S E T H :
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WHEREAS, upon the terms and subject to the conditions of the Purchase
Agreement dated as of May 28, 2003, by and among each of the Initial Purchasers
and the Company (the "Purchase Agreement"), the Company has agreed to issue and
sell to the Initial Purchasers, and the Initial Purchasers have agreed to
purchase from the Company, an aggregate of 400,000 shares, par value $.01 per
share, of the Company's 8.5% Series C Senior Cumulative Preferred Stock (the
"Preferred Stock") on the terms and conditions set forth therein;
WHEREAS, upon the terms and subject to the conditions of subscription
agreements (the form of which is an Exhibit to the Purchase Agreement) dated as
of May 29, 2003, by and between the Initial Purchasers, on the one hand, and the
qualified institutional buyers, on the other hand, the Initial Purchasers have
agreed to resell the preferred stock to the qualified institutional buyers in
accordance with Rule 144A of the Securities Act (the "subscription agreements");
and
WHEREAS, in order to induce the Initial Purchasers to enter into the
Purchase Agreement and to consummate the transactions contemplated thereby, and
to induce the qualified institutional buyers to enter into the subscription
agreements and to consummate the transactions contemplated thereby, the Company
has agreed to provide the persons listed on Exhibit A hereto and the holders of
the Registrable Securities prior to the time of the filing of the Registration
Statement with certain registration rights with respect to the Preferred Stock
as more fully set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
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(a) "Affiliate" of any specified Person means any other Person who
directly, or indirectly through one or more intermediaries, is in control of, is
controlled by, or is under common control with, such specified Person. For
purposes of this definition, control of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise; and the terms "controlling" and
"controlled" have the respective meanings correlative to the foregoing.
(b) "Commission" means the Securities and Exchange Commission.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, or any
similar successor statute.
(d) "Purchasers" mean the persons listed on Exhibit A hereto and any
transferee or assignee of the Registrable Securities who holds such Registrable
Securities immediately prior to the effective date of the Registration
Statement.
(e) "Person" means any individual, partnership, corporation, limited
liability company, joint stock company, association, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
(f) "Prospectus" means the prospectus (including, without limitation,
any preliminary prospectus and any final prospectus filed pursuant to Rule
424(b) under the Securities Act, including any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance on Rule 430A under the Securities Act)
included in the Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by the Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
(g) "Registrable Securities" mean the shares of Preferred Stock, or any
other securities issued in respect of such securities upon any stock split,
stock dividend, recapitalization, merger or other reorganization, issued to or
held by each Purchaser; provided, however, that a share of Preferred Stock, or
of such other securities issued in respect thereof, shall cease to be a
Registrable Security for purposes of this Agreement when it no longer is a
Restricted Security.
(h) "Registration Statement" means a registration statement of the
Company filed on an appropriate form under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities pursuant to Rule 415 under the Securities
Act, including the Prospectus contained therein and forming a part thereof, any
amendments to such registration statement and supplements to such Prospectus,
and all exhibits and other material incorporated by reference in such
registration statement.
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(i) "Restricted Security" means any share of Preferred Stock, or any
other security issued in respect of such security upon any stock split, stock
dividend, recapitalization, merger or other reorganization, except any such
share that (i) has been registered pursuant to an effective registration
statement under the Securities Act and sold in a manner contemplated by the
Prospectus included in the Registration Statement, (ii) has been transferred in
compliance with the resale provisions of Rule 144 under the Securities Act (or
any successor provision thereto) or is transferable pursuant to paragraph (k) of
Rule 144 under the Securities Act (or any successor provision thereto), or (iii)
otherwise has been transferred and a new share of Preferred Stock not subject to
transfer restrictions under the Securities Act has been delivered by or on
behalf of the Company.
(j) "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder, or any similar successor
statute.
2. Registration. Subject to the receipt of necessary information from
the Purchasers, the Company shall use its reasonable efforts to prepare and file
with the Commission as soon as reasonably practicable after the date hereof, a
Registration Statement under the Securities Act relating to the offer and sale
of the Registrable Securities and shall use its reasonable efforts to cause the
Commission to declare such Registration Statement to be effective under the
Securities Act as soon as reasonably practicable after filing, all in accordance
with the terms of this Agreement.
3. Obligations of the Company. In connection with the registration of
the Registrable Securities, the Company shall:
(a) promptly (i) prepare and file with the Commission such amendments
(including post-effective amendments) to the Registration Statement and
supplements to the Prospectus as may be necessary to keep the Registration
Statement continuously effective and in compliance with the provisions of the
Securities Act applicable thereto so as to permit the Prospectus forming a part
thereof to be current and useable by Purchasers for resales of the Registrable
Securities for a period of two years from the date on which the Registration
Statement is first declared effective by the Commission (the "Effective Time")
or such shorter period that will terminate when all the Registrable Securities
covered by the Registration Statement have been (A) sold pursuant thereto in
accordance with the plan of distribution provided in the Prospectus, (B)
transferred pursuant to Rule 144 under the Securities Act or (C) otherwise
transferred in a manner that results in the delivery of new securities not
subject to transfer restrictions under the Securities Act (the "Registration
Period"), and (ii) take all lawful action such that each of (A) the Registration
Statement and any amendment thereto does not, when it becomes effective, 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 (B) the Prospectus forming part of the Registration Statement,
and any amendment or supplement thereto, does not at any time during the
Registration Period include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the
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circumstances under which they were made, not misleading. Notwithstanding the
foregoing provisions of this Section 3(a), the Company may, during the
Registration Period, suspend the use of the Prospectus for a period not to
exceed 60 days (whether or not consecutive) in any 12-month period if the Board
of Directors of the Company determines in good faith that because of valid
business reasons, including pending mergers or other business combination
transactions, planned acquisitions or divestitures of assets, or pending
material corporate developments and similar events, it is in the best interests
of the Company to suspend such use, and prior to or contemporaneously with
suspending such use the Company provides the Purchasers with written notice of
such suspension, which notice need not specify the nature of the event giving
rise to such suspension. At the end of any such suspension period, the Company
shall provide the Purchasers with written notice of the termination of such
suspension. The Company covenants and agrees that it shall not suspend use of
any Prospectus according to the above terms unless Company employees, officers
and directors and their affiliates and any other holders of registration rights
with respect to the Company's stock would, under applicable law, also be
prohibited from effecting any public sales of shares of Company stock
beneficially owned by them for the duration of such period. The Company
represents that it has no knowledge of any circumstance that would reasonably be
expected at the time of the filing of the Registration Statement pursuant to
Section 2 to cause the Company to exercise its rights under this Section 3(a);
(b) during the Registration Period, comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities of
the Company covered by the Registration Statement until such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the Purchasers as set forth in the Prospectus forming
part of the Registration Statement;
(c) (i) prior to the filing with the Commission of the Registration
Statement (including any amendments thereto) and the distribution or delivery of
any Prospectus (including any supplements thereto), provide draft copies thereof
to the Purchasers and reflect in such documents all such comments as the
Purchasers (and their counsel) reasonably may propose and (ii) furnish to each
Purchaser whose Registrable Securities are included in the Registration
Statement and its legal counsel identified to the Company, (A) promptly after
the same is prepared and publicly distributed, filed with the Commission, or
received by the Company, one copy of the Registration Statement, each
Prospectus, and each amendment or supplement thereto, and (B) such number of
copies of the Prospectus and all amendments and supplements thereto, and such
other documents, as such Purchaser may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Purchaser;
(d) (i) register and qualify the Registrable Securities covered by the
Registration Statement under such securities or "blue sky" laws of such U.S.
jurisdictions as a Purchaser who holds Registrable Securities being offered may
reasonably request as necessary or advisable in connection with the sale of such
Securities, (ii) prepare and file in such jurisdictions such amendments
(including post effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at all
times during the Registration Period, (iii) take all such other lawful actions
as may be necessary to maintain such
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registrations and qualifications in effect at all times during the Registration
Period, and (iv) take all such other lawful actions as may be reasonably
necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (A) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (B) subject itself to general taxation in any such
jurisdiction or (C) file a general consent to service of process in any such
jurisdiction;
(e) as promptly as practicable after becoming aware of such event,
notify each Purchaser of the occurrence of any event, as a result of which the
Prospectus included in the 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, in
light of the circumstances under which they were made, not misleading, and
promptly prepare an amendment to the Registration Statement and supplement to
the Prospectus to correct such untrue statement or omission, and deliver such
number of copies of such supplement and amendment to each Purchaser as such
Purchaser may reasonably request;
(f) as promptly as practicable after becoming aware of such event,
notify each Purchaser who holds Registrable Securities being sold of the
issuance by the Commission of any stop order or other suspension of the
effectiveness of the Registration Statement at the earliest possible time and
use its reasonable efforts to effect the withdrawal, recession or removal of
such stop order or other suspension;
(g) upon the Commission declaring effective any Registration Statement
relating to the offer and sale of the Registrable Securities, use its reasonable
efforts to cause the listing of the Preferred Stock on the New York Stock
Exchange, Inc. (the "NYSE") or, if the Preferred Stock shall not then be
eligible for listing on the NYSE, to apply for listing of the Preferred Stock on
the American Stock Exchange, Inc. (the "AMEX") or, if the Preferred Stock shall
not then be eligible for listing on the AMEX, to apply for quotation of the
Preferred Stock through the National Association of Securities Dealers, Inc.
Automated Quotation System (the date of any such listing, the "Listing Date");
provided, however, that the Company, on the Listing Date, shall be entitled to
discontinue the trading of the Registrable Securities on The PortalSM Market, a
subsidiary of the Nasdaq Stock Market, Inc.;
(h) subsequent to the Listing Date, maintain a transfer agent and
registrar, which may be a single entity, for the Preferred Stock;
(i) cooperate with the Purchasers who hold Registrable Securities being
offered to facilitate the timely preparation and delivery of certificates for
the Registrable Securities to be offered pursuant to the Registration Statement
and enable such certificates for the Registrable Securities to be in such
denominations or amounts, as the case may be, as the Purchasers reasonably may
request and registered in such names as the Purchasers may request; and, at the
Effective Time, deliver and cause legal counsel selected by the Company to
deliver to the transfer agent for the
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Registrable Securities (with copies to the Purchasers whose Registrable
Securities are included in the Registration Statement) an appropriate
instruction and opinion of such counsel;
(j) use its reasonable efforts to expedite and facilitate the
disposition by the Purchasers of their Registrable Securities in accordance with
the intended methods therefor provided in the Prospectus;
(k) make generally available to its securityholders as soon as
practicable, but in any event not later than 18 months after (i) the effective
date (as defined in Rule 158(c) under the Securities Act) of the Registration
Statement, (ii) the effective date of each post-effective amendment to the
Registration Statement, and (iii) the date of each filing by the Company with
the Commission of its Annual Report on Form 10-K, an earnings statement of the
Company and its subsidiaries complying with Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(l) enter into such customary agreements and use its reasonable efforts
to expedite and facilitate the registration and disposition of the Registrable
Securities; and
(m) (i) make reasonably available for inspection by Purchasers and any
attorney, accountant or other agent retained by such Purchasers all relevant
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and (ii) cause the Company's officers, directors
and employees to supply all information reasonably requested by such Purchasers,
attorney, accountant or agent in connection with the Registration Statement, in
each case, as is customary for similar due diligence examinations; provided,
however, that all records, information and documents that are designated in
writing by the Company as confidential, proprietary or containing any material
non-public information shall be kept confidential by such Purchasers, attorney,
accountant or agent, unless such disclosure is made pursuant to judicial process
in a court proceeding (after first giving the Company an opportunity promptly to
seek a protective order or otherwise limit the scope of the information sought
to be disclosed) or is required by law, or such records, information or
documents become available to the public generally or through a third party not
in violation of an accompanying obligation of confidentiality; and provided
further that, if the foregoing inspection and information gathering would
otherwise disrupt the Company's conduct of its business, such inspection and
information gathering shall, to the maximum extent possible, be coordinated on
behalf of the Purchasers and the other parties entitled thereto by one legal
counsel designated by and on behalf of the Purchasers.
4. Obligations of the Purchasers. In connection with the registration
of the Registrable Securities, the Purchasers shall have the following
obligations:
(a) It shall be a condition precedent to the obligations of the Company
to use its reasonable efforts to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of a holder of Registrable
Securities that such Purchaser shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended
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method of disposition of the Registrable Securities held by it as shall be
reasonably required to effect the registration of such Registrable Securities,
and shall execute such documents in connection with such registration as the
Company may reasonably request. As soon as is reasonably practicable after the
date hereof, the Company shall notify each Purchaser of the information the
Company requires from each such Purchaser (the "Requested Information"), if such
Purchaser shall elect to have any of its Registrable Securities included in the
Registration Statement. If, at least five business days prior to the anticipated
filing date of the Registration Statement, the Company has not received the
Requested Information from a Purchaser (a "Non-Responsive Purchaser"), then the
Company may file the Registration Statement without including the Registrable
Securities of such Non-Responsive Purchaser.
(b) Each Purchaser by its acceptance of the Registrable Securities
agrees to cooperate with the Company in connection with the preparation and
filing of the Registration Statement hereunder, unless such Purchaser has
notified the Company in writing of its election to exclude all of its
Registrable Securities from the Registration Statement or is otherwise a
Non-Responsive Purchaser.
(c) Each Purchaser agrees that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in Section 3(e) or
3(f), it shall immediately discontinue its disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Purchaser's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(e) and, if so directed by the Company, such
Purchaser shall deliver to the Company (at the expense of the Company) or
destroy (and deliver to the Company a certificate of destruction) all copies in
such Purchaser's possession of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
5. Expenses of Registration. All expenses incurred in connection with
registrations, filings or qualifications pursuant to Section 3, including,
without limitation, all registration, listing, and qualification fees, printing
and engraving and accounting fees, the fees and disbursements of counsel for the
Company (but excluding the fees of any legal counsel selected by the
Purchasers), shall be borne by the Company.
6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless each Purchaser and each of their respective officers and directors
and each Person who controls such Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act (each such Person being
sometimes hereinafter referred to as an "Indemnified Party") from and against
any losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or an
omission or alleged omission to state therein a material fact required to be
stated therein or
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necessary to make the statements therein, not misleading, or arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Prospectus or an omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company hereby agrees to reimburse such
Indemnified Party for all reasonable legal and other expenses incurred by them
in connection with investigating or defending any such action or claim as and
when such expenses are incurred; provided, however, that the Company shall not
be liable to any such Indemnified Party in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon (i) an
untrue statement or alleged untrue statement made in, or an omission or alleged
omission from, such Registration Statement or Prospectus in reliance upon and in
conformity with written information furnished to the Company by such Indemnified
Party expressly for use therein or (ii) in the case of the occurrence of an
event of the type specified in Section 3(e), the use by the Indemnified Party of
an outdated or defective Prospectus after the Company has provided to such
Indemnified Party the notice required by Section 3(e).
(b) Indemnification by the Purchasers. Each Purchaser agrees, as a
consequence of the inclusion of any of its Registrable Securities in a
Registration Statement, severally and not jointly, to (i) indemnify and hold
harmless the Company, its directors (including any person who, with his or her
consent, is named in the Registration Statement as a director nominee of the
Company), its officers who sign 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 losses, claims,
damages or liabilities to which the Company or such other Persons may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such Registration Statement or Prospectus or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
light of the circumstances under which they were made, in the case of the
Prospectus), not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such holder expressly for use therein, and (ii)
reimburse the Company for any reasonable legal or other expenses incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Notice of Claims, etc. Promptly after receipt by an Indemnified
Party of written notice of any investigation, claim, proceeding or other action
in respect of which indemnification is being sought (each, a "Claim"), the
Indemnified Party promptly shall notify the party against whom indemnification
pursuant to this Section 6 is being sought (the "Indemnifying Party") of the
commencement thereof; but the omission to so notify the Indemnifying Party shall
not relieve the Indemnifying Party from any liability that it otherwise may have
to the Indemnified Party, except to the extent that the Indemnifying Party is
materially prejudiced and forfeits substantive rights and defenses by reason of
such omission. In connection with any Claim as to
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which both the Indemnifying Party and the Indemnified Party are parties, the
Indemnifying Party shall be entitled to assume the defense thereof.
Notwithstanding the assumption of the defense of any Claim by the Indemnifying
Party, the Indemnified Party shall have the right to employ separate legal
counsel and to participate in the defense of such Claim, and the Indemnifying
Party shall bear the reasonable fees, out-of-pocket costs and expenses of such
separate legal counsel to the Indemnified Party if (and only if): (x) the
Indemnifying Party shall have agreed to pay such fees, costs and expenses; (y)
the Indemnified Party and the Indemnifying Party shall reasonably have concluded
that representation of the Indemnified Party by the legal counsel to the
Indemnifying Party would not be appropriate due to actual or, as reasonably
determined by legal counsel to the Indemnified Party, potentially differing
interests between such parties in the conduct of the defense of such Claim, or
if there may be legal defenses available to the Indemnified Party that are in
addition to or disparate from those available to the Indemnifying Party; or (z)
the Indemnifying Party shall have failed to employ legal counsel reasonably
satisfactory to the Indemnified Party within a reasonable period of time after
notice of the commencement of such Claim. If the Indemnified Party employs
separate legal counsel in circumstances other than as described in clauses (x),
(y) or (z) above, the fees, costs and expenses of such legal counsel shall be
borne exclusively by the Indemnified Party. Except as provided above, the
Indemnifying Party shall not, in connection with any Claim in the same
jurisdiction, be liable for the fees and expenses of more than one legal counsel
for the Indemnified Party. The Indemnified Party shall not, without the prior
written consent of the Indemnifying Party (which consent shall not unreasonably
be withheld), settle or compromise any Claim or consent to the entry of any
judgment that does not include an unconditional release of the Indemnifying
Party from all liabilities with respect to such Claim or judgment.
(d) Contribution. If the indemnification provided for in this Section 6
is unavailable to or insufficient to hold harmless an Indemnified Party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
Indemnifying Party shall contribute to the amount paid or payable to such
Indemnified Party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and the Indemnified Party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such Indemnifying Party or by such Indemnified Party, 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 6(d) were determined by
pro rata allocation (even if the Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably
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incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. 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. The obligations of the Purchasers in this Section 6(d) to
contribute shall be several, not joint, and in proportion to the percentage of
Registrable Securities registered by the Purchasers.
(e) Notwithstanding any other provision of this Section 6, in no event
shall any Purchaser be liable to any Person under this Section 6 for any amounts
in excess of the dollar amount of the proceeds to be received by such Purchaser
from the sale of such Purchaser's Registrable Securities (after deducting any
fees, discounts and commissions applicable thereto) pursuant to the Registration
Statement under which such Registrable Securities are to be registered under the
Securities Act.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Party and the obligations of any Purchaser under this Section 6
shall be in addition to any liability which such Purchaser may otherwise have to
any Indemnified Party. The remedies provided in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an Indemnified Party at law or in equity.
7. Rule 144. With a view to making available to the Purchasers the
benefits of Rule 144 under the Securities Act or any other similar rule or
regulation of the Commission that may at any time permit the Purchasers to sell
securities of the Company to the public without registration ("Rule 144"), the
Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144; and
(b) file with the Commission in a timely manner all reports and other
documents required to be filed by the Company pursuant to Section 13 or 15(d)
under the Exchange Act.
8. Assignment. Notwithstanding anything to the contrary contained in
this Agreement, the rights to have the Company register Registrable Securities
pursuant to this Agreement will not be transferred to a transferee of
Registrable Securities unless: (a) the Purchaser agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company as soon as practicable after such assignment; (b) the
Company is, as soon as practicable after such transfer or assignment, furnished
with written notice of (i) the name and address of such transferee or assignee
and (ii) the securities with respect to which such registration rights are being
transferred or assigned; (c) immediately following such transfer or assignment,
the securities so transferred or assigned to the transferee or assignee
constitute Restricted Securities; and (d) at or before the time the Company
receives the written notice contemplated by clause (b) of this sentence, the
transferee or assignee signs a counterpart of this
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Agreement or otherwise agrees in writing with the Company to be bound by all of
the provisions contained herein.
9. Restrictions on Transferability. Each Purchaser acknowledges and
agrees that the Registrable Securities are subject to certain transfer
restrictions set forth in the subscription agreements, and each Purchaser
further acknowledges and agrees that certificates representing shares of
Registrable Securities shall be stamped or otherwise imprinted with legends
restricting the transferability thereof, in substantially the form set forth in
such subscription agreements.
10. Amendment and Waiver. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Purchasers who hold at least 66-2/3% of
the Registrable Securities. Any amendment or waiver effected in accordance with
this Section 10 shall be binding upon each Purchaser and the Company.
11. Miscellaneous.
(a) A Person shall be deemed to be a holder of Registrable Securities
whenever such Person owns of record such Registrable Securities. If the Company
receives conflicting instructions, notices or elections from two or more Persons
with respect to the same Registrable Securities, the Company shall act upon the
basis of instructions, notice or election received from the registered owner of
such Registrable Securities.
(b) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
(by hand, by courier, by facsimile transmission, receipt confirmed) or sent by
certified mail, return receipt requested, properly addressed and with proper
postage pre-paid (i) if to the Company, to Urstadt Xxxxxx Properties Inc., 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxxxxx 00000 Attn: Secretary, with a copy to
Coudert Brothers, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxx
X. Xxxxx, Esq., (ii) if to the Initial Purchasers, at the respective addresses
set forth in the Purchase Agreement and (iii) if to any other Purchaser, at such
address as such Purchaser shall have provided in writing to the Company, or at
such other address as each such party furnishes by notice given in accordance
with this Section 12(b), and shall be effective, when personally delivered, upon
receipt and, when so sent by certified mail, four calendar days after deposit
with the United States Postal Service.
(c) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York, without regard to applicable conflict of
laws principles. Each of the parties consents to the jurisdiction of the federal
courts whose districts encompass any part of the
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City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection including
any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
(e) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and undertakings among the parties hereto with respect to the subject
matter hereof.
(f) Subject to all conditions herein, this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto.
(g) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(h) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning thereof.
(i) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement.
[Remainder of page intentionally left blank]
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A facsimile transmission of this signed Agreement shall be legal and binding on
all parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
URSTADT XXXXXX PROPERTIES INC.
By: /s/ Willing X. Xxxxxx
-------------------------------
Name: Willing X. Xxxxxx
Title: President
XXXXXX, XXXXX XXXXX, INCORPORATED
as attorney-in-fact for and on behalf
of the persons specified on Exhibit A hereto
By: /s/ Xxxx X. Xxxxxx, Xx.
-------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
EXHIBIT A
Qualified Institutional Buyer Number of Shares
----------------------------- ----------------
AEW Capital Management 90,000
Xxxxx & Steers Capital Management 80,000
Kensington Investment Group 95,000
Xxxxxxxxx Xxxxxx 60,000
RREEF Real Estate Securities Advisors 75,000
------
400,000
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