REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of May 15, 1998,
is entered into by and between Kimco Realty Corporation, a Maryland corporation
(the "Company"), and the Post Closing Partners of Bay-Gard, Ltd., a Florida
limited partnership (the "Unitholders").
RECITALS
WHEREAS, the Kimco Bradenton 698, Inc., a Florida Corporation,
the Unitholders and Bay-Gard, Ltd., a Florida limited partnership (the
"Operating Partnership") have entered into that certain Contribution Agreement
dated as of April 6, 1998 (the "Contribution Agreement") providing, among other
things, for the contribution of a sum certain by Kimco Bradenton 698, Inc., to
the Operating Partnership in exchange for Operating Partnership Units ("OP
Units"), and the purchase by Kimco Bradenton 698, Inc. of certain partnership
interests from Pre Closing Partners of Bay-Gard, Ltd.; and
WHEREAS, it is a condition to the closing of the transactions
contemplated by the Contribution Agreement that the parties hereto enter into
this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
The following capitalized terms, as used in this Agreement,
have the following meanings:
"Agreement" means this Registration Rights Agreement, as it
may be amended, supplemented or restated from time to time.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized by law
to close.
"Closing Price" means (i) the closing price of a share of
stock on the principal exchange on which shares of stock are then trading, if
any, or (ii) if the Common Stock is not traded on an exchange but is quoted on
NASDAQ or a successor quotation system, (1) the last sales price (if the Common
Stock is then listed as a National Market Issue under the NASD National Market
System) or (2) the mean between the closing representative bid and asked prices
(in all other cases) for the Common Stock as reported by NASDAQ or such
successor quotation system or (iii) if the Common Stock is not publicly traded
on an exchange and not quoted on NASDAQ or a successor quotation system, the
mean between the closing bid and asked prices for the Common Stock.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means Kimco Realty Corporation's Common Stock,
par value $.01 per share.
"Contribution Agreement" has the meaning set forth in the
recitals to this Agreement.
"Demand Registration" has the meaning set forth in
Section 3.1 (a) hereof.
"Demand Registration Statement" has the meaning set forth in
Section 3.1 (a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchangeable Partnership Units" means Partnership Units which
may be exchanged for Common Stock pursuant to the Amended and Restated
Partnership Agreement.
"Filing Date" has the meaning set forth in Section 2.1 hereof.
"Full Conversion Date" has the meaning set forth in
Section 2.1 hereof.
"Holder" means any Person (including any Unitholder) who is
the record or beneficial owner of any Registrable Security or any assignee or
transferee of such Registrable Security (including assignments or transfers of
Registrable Securities to such assignees or transferees as a result of the
foreclosure on any loans secured by such Registrable Securities) unless such
Registrable Security is acquired in a sale pursuant to a registration statement
under the Securities Act or pursuant to a transaction exempt from registration
under the Securities Act, in each such case where the security sold in such
transaction may be resold without subsequent registration under the Securities
Act.
"Issuance Registration Statement" has the meaning set forth
in Section 2.1.
"Partnership Agreement" means the Amended and Restated Limited
Partnership Agreement of the Operating Partnership dated as of the date of this
Agreement, as the same may be amended, modified or restated from time to time.
"Partnership Units" has the meaning set forth in the
Partnership Agreement.
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"Person" means an individual or a corporation, partnership,
limited liability company, association, trust, or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Pre Closing Partners" means the Partners of Bay-Gard, Ltd.
before the Closing of the transactions contemplated in the Contribution
Agreement between Kimco Bradenton 698, Inc., and Bay-Gard, Ltd.
"Post Closing Partners" means the Partners of Bay-Gard, Ltd.
after the Closing of the transactions contemplated in the Contribution Agreement
between Kimco Bradenton 698, Inc., and Bay-Gard, Ltd.
"Registrable Securities" means shares of Common Stock of the
Company issued upon exchange of Exchangeable Partnership Units pursuant to the
terms of the Partnership Agreement at any time owned, either of record or
beneficially, by any Holder unless and until the earlier of (i) a registration
statement covering such shares has been declared effective by the Commission and
the shares have been issued by the Company to Holder upon exchange of
Exchangeable Partnership Units pursuant to the effective registration statement
or have been sold or transferred by Holder to another Person pursuant to the
effective registration statement, (ii) such shares are sold pursuant to the
provisions of Rule 144 under the Securities Act (or any similar provisions then
in force) ("Rule 144"), (iii) such shares are held by a Holder who is not an
affiliate of the Company within the meaning of Rule 144 (a "Rule 144 Affiliate")
and may be sold pursuant to Rule 144(k) under the Securities Act, (iv) such
shares are held by a Holder who is a Rule 144 Affiliate and all such shares may
be sold pursuant to Rule 144 within a period of three months in accordance with
the volume limitations set forth in Rule 144(e)(1), and (iv) such shares have
been otherwise transferred in a transaction that would constitute a sale under
the Securities Act and such shares may be resold without subsequent registration
under the Securities Act.
"Resale Prospectus" has the meaning set forth in Section 3.5.
"Resale Registration Statement" has the meaning set forth in
Section 3.5.
"Reinstatement Period" has the meaning set forth in
Section 3.1.
"S-3 Expiration Date" means the date on which Form S-3 (or a
similar successor form of registration statement) is not available to the
Company for the registration of Registrable Securities pursuant to the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a Demand Registration Statement.
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ARTICLE II
REGISTRATION
SECTION 2.1. Registration Statement Covering Issuance of
Common Stock.
Subject to the provisions of Article III hereof, the Company
will file with the Commission a registration statement on Form S-3 (the
"Issuance Registration Statement") under Rule 415 under the Securities Act
covering the issuance to Holders of shares of Common Stock in exchange for
Exchangeable Partnership Units, such filing to be made within the two (2) week
period following the date (the "Filing Date") which is the later of (i) a date
which is thirty (30) days prior to the first date on which the Exchangeable
Partnership Units issued pursuant to the Contribution Agreement may be exchanged
for shares of Common Stock pursuant to the provisions of the Partnership
Agreement or (ii) such other date as may be required by the Commission pursuant
to its interpretation of applicable federal securities laws and the rules and
regulations promulgated thereunder. The Company shall use its reasonable efforts
to cause the Issuance Registration Statement filed with the Commission to be
declared effective by the first anniversary of the date of this Agreement. In
the event the Company is unable to cause the Issuance Registration Statement to
be declared effective by the Commission by the first anniversary of the date of
this Agreement, then the rights of the Holders set forth in Section 3.1 hereof
shall apply to Common Stock received by Holders upon exchange of the
Exchangeable Partnership Units for shares of Common Stock. Notwithstanding the
availability of rights under Section 3.1 hereof, the Company shall continue to
use its reasonable efforts to cause the Issuance Registration Statement to be
declared effective by the Commission and if it shall be declared effective by
the Commission, the obligations of the Company under Section 3.1 hereof shall
cease, except to the extent expressly provided in the first sentence of this
Section 2.1. The Company agrees to use its reasonable efforts to keep the
Issuance Registration Statement continuously effective (a) until the earlier of
(i) the S-3 Expiration Date, (ii) the first date (the "Full Conversion Date") on
which no Exchangeable Partnership Units (other than those held by the Company)
remain outstanding, or (iii) there are no more Registrable Securities
outstanding, and (b) during any Reinstatement Period.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1. Registration Rights if Form S-3 is Not Available.
The following provisions shall apply with respect to
Registrable Securities during the period, if any, beginning on the S-3
Expiration Date (or, if the S-3 Expiration Date shall occur before the first
date on which the Exchangeable Partnership Units issued pursuant to the
Contribution Agreement may be exchanged for shares of Common Stock, beginning on
such first date) and ending on the date when the Company would no longer be
obligated to maintain the applicable registration statement in effect pursuant
to the terms of Section 2.1 if the S-3 Expiration Date had not occurred (the
"Supplemental Rights Period"), provided, however, that the Supplemental Rights
Period shall not include any period following the S-3 Expiration Date
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and prior to the Full Conversion Date if during that period (the "Reinstatement
Period") the Company shall again be entitled to use Form S-3 or a similar
successor form of registration statement) for registration of the Registrable
Securities. During the Supplemental Rights Period, the Holders shall have the
following rights:
(a) Demand Right. Each Holder may make a written
demand for registration under the Securities Act of all or part of the
Registrable Securities (a "Demand Registration") and upon such demand the
Company shall be obligated to register such Registrable Securities under the
Securities Act in accordance with the provisions of this Agreement; provided,
however, that (i) the Company shall not be obligated to effect more than one
Demand Registration for each Holder, and (ii) the number of Registrable
Securities proposed to be sold by each Holder making such written request either
(x) shall be all the Registrable Securities owned by that Holder of Registrable
Securities, or (y) shall have an estimated market value at the time of such
request (based upon the then market price of a share of Common Stock) of at
least $1,000,000. The Company shall file any registration statement required by
this Section 3.1(a) (a "Demand Registration Statement") with the SEC within
thirty (30) days of receipt of the requisite Holder demand and shall use its
reasonable efforts to cause the Demand Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. The Company shall use
its reasonable efforts to keep each such Demand Registration Statement
continuously effective for a period of ninety (90) days, unless the offering
pursuant to the Demand Registration Statement is an underwritten offering and
the managing underwriter requires that the Demand Registration Statement be kept
effective for a longer period of time, in which event the Company shall maintain
the effectiveness of the Demand Registration Statement for such longer period up
to one hundred twenty (120) days (such period, in each case, to be extended by
the number of days, if any, during which Holders were not permitted to make
offers or sales under the Demand Registration Statement by reason of Section 3.3
hereof). The Company may elect to include in any Demand Registration Statement
additional shares of Common Stock to be issued by the Company, subject, in the
case of an underwritten secondary Demand Registration, to cutback by the
managing underwriters. A registration shall not constitute a Demand Registration
under this Section 3.1(a) until the Demand Registration Statement has been
declared effective.
(b) Company Repurchase. Upon receipt by the
Company of a registration request pursuant to this Section 3.1, the Company may,
but will not be obligated to, purchase for cash from any Holder so requesting
registration all, but not less than all, of the Registrable Securities which are
the subject of the request at a price per share equal to the average of the
Closing Prices of a share of Common Stock for the ten (10) trading days
immediately preceding the date of receipt by the Company of the registration
request. In the event the Company elects to purchase the
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Registrable Securities which are the subject of a registration request, the
Company shall notify the Holder within five Business Days of the date of receipt
of the request by the Company, which notice shall indicate (i) that the Company
will purchase for cash the Registrable Securities held by the Holder which are
the subject of the request, (ii) the price per share, calculated in accordance
with the preceding sentence, which the Company will pay the Holder and (iii) the
date upon which the Company shall purchase the Registrable Securities, which
date shall not be later than the tenth business day after receipt of the
registration request. If the Company so elects to purchase the Registrable
Securities which are the subject of a registration request, then upon such
purchase the Company shall be relieved of its obligations under this Section
with respect to such Registrable Securities. Notwithstanding the foregoing,
Company shall be obligated to purchase such Registrable Securities for cash on
the terms stated above, and if for any reason Company is unable to register the
Registrable Securities or if Company elects to delay registration as provided in
Sections 3.3(a) or 3.10, provided such Registrable securities are not Excess
Partnership Units (as defined in the Amended and Restated Limited Partnership
Agreement).
SECTION 3.2. Additional Registration Procedures.
In connection with any registration statement covering
Registrable Securities filed by the Company pursuant to Section 2.1 or 3.1
hereof:
(a) Each Holder agrees to provide in a timely
manner information requested by the Company regarding the proposed distribution
by that Holder of the Registrable Securities and all other information
reasonably requested by the Company in connection with the preparation of the
registration statement covering the Registrable Securities.
(b) In connection with any Demand Registration
Statement, the Company will furnish to each Selling Holder of Registrable
Securities that number of copies of the registration statement or prospectus in
conformity with the requirements of the Securities Act and such other documents
as the Selling Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by the Selling Holder.
(c) After the filing of the registration
statement, the Company will promptly notify each Selling Holder of Registrable
Securities covered by the registration statement of any stop order issued or
threatened by the Commission and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered.
(d) In connection with any Demand Registration
Statement the Company will use reasonable efforts to register or qualify the
Registrable Securities under such securities or blue sky laws of those
jurisdictions in the United States (where an exemption is not available) as any
Selling Holder or managing underwriter or underwriters, if any, reasonably (in
light of the Selling Holder's intended plan of distribution) requests, provided,
however, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction.
(e) In connection with any Demand Registration
Statement, the Company will enter into customary agreements (including an
underwriting agreement, if any, in customary form) as are reasonably required in
order to expedite or facilitate the disposition of Registrable Securities
pursuant to the Demand Registration Statement. Each Selling Holder participating
in an underwritten offering shall also enter into and perform its or his
obligations
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under the underwriting agreement, and shall be responsible for its pro rata
share of underwriting expense, in addition to legal fees of counsel representing
that Holder and customary brokerage fees for sale of its registered securities.
(f) The Company will use its reasonable efforts to cause all
such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
SECTION 3.3. Material Developments; Suspension of Offering.
(a) Notwithstanding the provisions of
Sections 2.1 or 3.1 hereof or any other provisions of this Agreement to the
contrary, the Company shall not be required to file a registration statement or
to keep any registration statement effective if the negotiation or consummation
of a transaction by the Company or any of its subsidiaries is pending or an
event has occurred, which negotiation, consummation or event would require
additional disclosure by the Company in the registration statement of material
information which the Company (in the judgment of management of the Company) has
a bona fide business purpose for keeping confidential and the nondisclosure of
which in the registration statement might cause the registration statement to
fail to comply with applicable disclosure requirements; provided, however, that
the Company (i) will promptly notify the Holders of Registrable Securities
otherwise entitled to registration of the foregoing and (ii) may not delay,
suspend or withdraw the registration statement for such reason more than twice
in any twelve (12) month period or three times in any twenty-four (24) month
period or for more than ninety (90) days at any time. Upon receipt of any notice
from the Company of the happening of any event during the period the
registration statement is effective which is of a type specified in the
preceding sentence or as a result of which the registration statement or related
prospectus contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statement therein, in light of the circumstances under which they were made, not
misleading, Holders agree that they will immediately discontinue offers and
sales of the Registrable Securities under the registration statement (until they
receive copies of a supplemental or amended prospectus that corrects the
misstatements or omissions and receive notice that any post-effective amendment
has become effective). If so directed by the Company, Holders will deliver to
the Company any copies of the prospectus covering the Registrable Securities in
their possession at the time of receipt of such notice. In the event the Company
shall give notice of the happening of an event of the kind described in this
Section 3.3(a), the Company shall extend the period during which the affected
registration statement is required to be maintained pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of notice pursuant to this Section 3.3(a) to the date when the Company
shall make available a prospectus supplemented or amended to conform with the
requirements of the Securities Act.
(b) If all reports required to be filed by the
Company pursuant to the Exchange Act have not been filed by the required date
without regard to any extension, or if the consummation of any business
combination by the Company has occurred or is probable for purposes of Rule 3-05
or Article 11 of Regulation S-X under the Securities Act, upon written
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notice thereof by the Company to the Holders, the rights of the Holders to
acquire Registrable Securities pursuant to the Issuance Registration Statement
or to offer, sell or distribute any Registrable Securities pursuant to any
Demand Registration Statement or to require the Company to take action with
respect to the registration of any Registrable Securities pursuant to this
Agreement shall be suspended until the date on which the Company has filed such
reports or obtained and filed the financial information required by Rule 3-05 or
Article 11 of Regulation S-X to be included or incorporated by reference, as
applicable, in the Issuance Registration Statement, the Demand Registration
Statement and the Company shall notify the Holders as promptly as practicable
when such suspension is no longer required.
SECTION 3.4. Registration Expenses.
In connection with any registration statement required to be
filed hereunder, the Company shall pay the following registration expenses
incurred in connection with the registration (the "Registration Expenses"): (i)
all registration and filing fees, (ii) fees and expenses of compliance with
securities or blue sky laws, (iii) printing expenses, (iv) internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), (v) the fees and expenses
incurred in connection with the listing of the Registrable Securities on each
securities exchange on which similar securities issued by the Company are then
listed, (vi) fees and disbursements of counsel for the Company and the
independent public accountants of the Company, (vii) the fees and expenses of
any experts retained by the Company in connection with such registration, and
(viii) any and all other registration expenses not described as the
responsibility of Holders below. The Holders shall be responsible for the
payment of the following expenses incurred by them in connection with the sale
of Registrable Securities: brokerage and sales commissions attributable to the
Registrable Securities; fees and disbursements of counsel representing the
Holder; the Holder's pro rata share of the underwriting expense, in the event
the Holder chooses to incur such expense to expedite or facilitate the
disposition of Registrable Securities pursuant to the Demand Registration
Statement, provided, that any underwriter then a party to an underwriting
agreement with Kimco Realty Corporation, or its affiliate, consents; and any
transfer taxes relating to the sale or disposition of the Registrable
Securities.
SECTION 3.5. Indemnification by the Company.
The Company agrees to indemnify and hold harmless each Selling
Holder, its officers, directors and agents, and each Person, if any, who
controls such Selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in any Demand Registration Statement
(individually, a "Resale Registration Statement") or 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 in which
they were made, not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any prospectus
contained in a Resale Registration Statement at the time it became effective (a
"Resale Prospectus"), or the
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omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by such Selling Holder or on such Selling Holder's behalf expressly for
inclusion therein; provided, however, that the Company will not be liable in any
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based upon any untrue statement or omission contained in a
Resale Prospectus which was corrected in a supplement or amendment thereto if
such claim is brought by a purchaser of Registrable Securities from the Selling
Holder and the Selling Holder failed to deliver to such purchaser the supplement
or amendment to the Resale Prospectus in a timely manner.
SECTION 3.6. Indemnification by Holders of Registrable
Securities.
Each Selling Holder of Resale Registrable Securities covered
by a Registration Statement agrees to indemnify and hold harmless the Company,
its officers, directors and agents 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 to the same extent as the indemnity set forth in Section
3.5 from the Company to Selling Holders, but only with respect to information
relating to such Selling Holder furnished in writing by such Selling Holder or
on such Selling Holder's behalf expressly for use in any Resale Registration
Statement or Resale Prospectus or any amendment or supplement thereto. Each
Holder also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act on substantially the same basis as that of
the indemnification of the Company provided in this Section 3.6.
SECTION 3.7. Conduct of Indemnification Proceedings.
Each indemnified party shall give reasonably prompt notice to
each indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify the
indemnifying party (i) shall not relieve it from any liability which it may have
under the indemnity agreement provided in Section 3.5 or 3.6 above, unless and
to the extent it did not otherwise learn of such action and the lack of notice
by the indemnified party results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to the indemnified party other than the
indemnification obligation provided under Section 3.5 or 3.6 above. If the
indemnifying party so elects within a reasonable time after receipt of notice,
the indemnifying party may assume the defense of the action or proceeding at the
indemnifying party's own expense with counsel chosen by the indemnifying party
and approved by the indemnified party, which approval shall not be unreasonably
withheld; provided, however, that if the defendants in any such action or
proceeding include both the indemnified party and the indemnifying party and the
indemnified party reasonably determines based upon advice of legal counsel
experienced in such matters, that there may be legal defenses available to it
which are
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different from or in addition to those available to the indemnifying party, then
the indemnified party shall be entitled to separate counsel at the indemnifying
party's expense, which counsel shall be chosen by the indemnified party and
approved by the indemnifying party, which approval shall not be unreasonably
withheld; provided further, that it is understood that the indemnifying party;
shall not be liable for the fees, charges and disbursements of more than one
separate firm. If the indemnifying party does not assume the defense, after
having received the notice referred to in the first sentence of this Section,
the indemnifying party will pay the reasonable fees and expenses of counsel for
the indemnified party; in that event, however, the indemnifying party will not
be liable for any settlement effected without the written consent of the
indemnifying party. If an indemnifying party assumes the defense of an action or
proceeding in accordance with this Section, the indemnifying party shall not be
liable for any fees and expenses of counsel for the indemnified party incurred
thereafter in connection with that action or proceeding except as set forth in
the proviso in the second sentence of this Section 3.7. Unless and until a final
judgment is rendered that an indemnified party is not entitled to the costs of
defense under the provisions of this Section, the indemnifying party shall
reimburse, promptly as they are incurred, the indemnified party's costs of
defense.
SECTION 3.8. Contribution.
(a) If the indemnification provided for in Section 3.5 or 3.6
hereof is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by indemnified party as a result of
such losses, claims, damages or liabilities as between the Company on the one
hand and each Selling Holder on the other, in such proportion as is appropriate
to reflect the relative fault of the Company and of each Selling Holder in
connection with such statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of each
Selling Holder on the other 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 Company or such Selling Holder, and the Company's and the
Selling Holder's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(b) The Company and the Selling Holders agree that it would
not be just and equitable if contribution pursuant to this Section 3.8 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in Section
3.8(a). The amount paid or payable by an indemnifying party as a result of the
losses, claims, damages or liabilities referred to in Sections 3.5 and 3.6
hereof shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by the indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 3.8, no Selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities of such Selling Holder were offered to the public
exceeds the amount of any
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damages which such Selling Holder 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.
SECTION 3.9. Participation in Underwritten Registrations.
No Holder may participate in any underwritten registration
hereunder unless the Holder (a) agrees to sell his or its Registrable Securities
on the basis provided in the applicable underwriting arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents in customary form as reasonably
required under the terms of such underwriting arrangements.
SECTION 3.10. Holdback Agreements.
Each Holder whose securities are included in a Demand
Registration Statement agrees not to effect any sale or distribution of the
securities registered or any similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 under the Securities Act, during the 14 days prior to,
and during the 60-day period beginning on, the effective date of such
registration statement (except as part of such registration), if and to the
extent requested in writing by the Company in the case of a non-underwritten
public offering or if and to the extent requested in writing by the managing
underwriter or underwriters in the case of an underwritten public offering.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Specific Performance.
The parties hereto acknowledge that there would be no adequate
remedy at law if any party fails to perform any of its obligations hereunder,
and accordingly agree that each party, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligation of any other party under this Agreement in
accordance with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction,
SECTION 4.2. 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 without the
prior written consent of the Company and the Holders holding at least two-thirds
(2/3) of the then outstanding Registrable Securities and Exchangeable
Partnership Units (other than Exchangeable Partnership Units held by the
Company). No failure or delay by any party to insist upon the strict performance
of any
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covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon any breach thereof shall constitute a waiver of
any such breach or any other covenant, duty, agreement or condition.
SECTION 4.3. Notices.
Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given (a) when
delivered by hand or upon transmission by telecopier or similar facsimile
transmission device, (b) on the date delivered by a courier service, or (c) on
the third Business Day after mailing by registered or certified mail, postage
prepaid, return receipt requested, in any case addressed as follows:
(1) if to any Holder, to such Holder at the address set forth
below such Holder's signature or to such other address and to such other Persons
as the Holders may hereafter notify the Company in writing; and
(2) if to the Company, to Kimco Realty Corporation, 3333 New
Hyde Park Road, P.O. Box 5020, New Hyde Park, New York, 11042-0020, or to such
other address as the Company may hereafter specify in writing.
SECTION 4.4. Successors and Assigns.
The rights and obligations of the Holders under this Agreement
shall not be assignable by any Holder to any Person that is not a Holder. This
Agreement shall be binding upon the parties hereto, the Holders and their
respective successors and assigns.
SECTION 4.5. 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 an original and all of which taken together shall
constitute one and the same agreement.
SECTION 4.6. Governing Law.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to the
conflicts of law provisions thereof.
SECTION 4.7. Severability.
In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
SECTION 4.8. Entire Agreement.
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This Agreement is intended by the parties as a final
expression of their agreement and 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. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the subject
matter of this Agreement.
SECTION 4.9. Headings.
The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Agreement.
SECTION 4.10. Selling Holders Become Party to this Agreement.
By asserting or participating in the benefits of registration
of Registrable Securities pursuant to this Agreement, each Holder agrees that it
or he will be deemed a party to this Agreement and be bound by each of its
terms.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
KIMCO REALTY CORPORATION
a Maryland corporation
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------------
Title: V.P.
-----------------------------------
POST CLOSING LIMITED PARTNERS:
XXXXXX INVESTMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxx XX
--------------------------------------
Name:
------------------------------------
Title: President
-----------------------------------
Address:
Xxxxx X. Xxxxxx, XX
Xxxxxx Investment Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
FARGO INVESTMENTS
By: /s/ X. Xxxxxxx
--------------------------------------
Name: X. Xxxxxxx
------------------------------------
Title: GP
-----------------------------------
Address:
Fargo Investments
Xxxxxxx Xxxxxx & Co.
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
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PALMETTO HOLDINGS I, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------
Title: President
-----------------------------------
Palmetto Holdings I, Inc.
Xx. Xxxx X. Xxxxxxxx
0000 Xxxx Xxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
MIDWAY HOLDINGS, INC.
By: /s/ Xxxx Xxx Xxxxxx
--------------------------------------
Name: Xxxx Xxx Xxxxxx
------------------------------------
Title: President
-----------------------------------
Address:
Midway Holdings, Inc.
Xxxx X. Xxxxxx
0000 Xxxxxx Xxxx Xxxx, Xxxxx 0
Xxxxxxxxx, XX 00000
X.X. XXXXXXX LAND COMPANY, INC.
By: /s/ X. X. Xxxxxxx
--------------------------------------
Name: X. X. Xxxxxxx
------------------------------------
Title: Pres.
-----------------------------------
Address:
X.X. Xxxxxxx Land Company
Xxxxxxx-Xxxxxxx Realty
X.X. Xxx 000
Xxxx Xxxxxx, XX 00000
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