EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
XXXXXXX MALL PROPERTIES, INC.
AND
CERTAIN PERSONS
LISTED ON SCHEDULE 1 HERETO
DATED AS OF
NOVEMBER 15, 2004
TABLE OF CONTENTS
PAGE
Section 1. Definitions.....................................................1
Section 2. Shelf Registrations.............................................3
Section 3. Black-Out Periods...............................................4
Section 4. Registration Procedures.........................................4
Section 5. Indemnification.................................................7
Section 6. Market Stand-Off Agreement......................................9
Section 8. Miscellaneous..................................................10
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
November 15, 2004, is made and entered into by and among Xxxxxxx Mall
Properties, Inc., a Maryland corporation (the "COMPANY"), and certain persons
listed on Schedule 1 hereto (such persons, in their capacity as holders of
Registrable Securities, the "HOLDERS" and each the "HOLDER"). Capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in Section
1 hereto.
WITNESSETH:
WHEREAS, in connection with the initial public offering of the Company,
the Company, Xxxxxxx Equities Operating Partnership, LP, a Delaware limited
partnership ("FE OP"), certain members of Xxxxxxx Equities of Arizona LLC, an
Arizona limited liability company ("FEA LLC") and certain other persons listed
under paragraph (b) of Schedule 1 hereto have entered into certain contribution
and other related agreements, pursuant to which such persons contributed their
membership interests in, and other rights with respect to, FEA LLC and certain
subsidiaries and joint ventures of FEA LLC in exchange for (i) operating
partnership units of FE OP exchangeable, under certain circumstances, into
shares of common stock, par value $0.01 per share, of the company (the "COMMON
SHARES") on a one-for-one basis (such exchanged units in the aggregate, the "OP
UNITS") and (ii) in the case of Xxxxx Xxxxxxx, OP Units and Common Shares; and
WHEREAS, the Company desires to enter into this Agreement with the
Holders in order to grant the Holders the registration rights contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"AFFILIATE" shall mean, when used with reference to a specified Person,
(i) any Person that directly or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the specified
Person; (ii) any Person who, from time to time, is a member of the Immediate
Family of a specified Person; (iii) any Person who, from time to time, is an
officer or director or manager of a specified Person; or (iv) any Person who,
directly or indirectly, is the beneficial owner of 50% or more of any class of
equity securities or other ownership interests of the specified Person, or of
which the specified Person is directly or indirectly the owner of 50% or more of
any class of equity securities or other ownership interests.
"AGREEMENT" shall mean this Registration Rights Agreement as originally
executed and as amended, supplemented or restated from time to time.
"BOARD" shall mean the Board of Directors of the Company.
"BUSINESS DAY" shall mean each day other than a Saturday, a Sunday or
any other day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to be closed.
"COMMON SHARES" shall have the meaning set forth in the Recitals
hereof.
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"COMMISSION" shall mean the Securities and Exchange Commission and any
successor thereto.
"COMPANY" shall have the meaning set forth in the Recitals hereof.
"CONTROL" (including the terms "CONTROLLING," "CONTROLLED BY" and
"UNDER COMMON CONTROL WITH") shall mean the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a
Person through the ownership of Voting Power, by contract or otherwise.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended (or any corresponding provision of succeeding law) and the rules and
regulations thereunder.
"FEA LLC" shall have the meaning set forth in the Recitals hereof.
"FE OP" shall have the meaning set forth in the Recitals hereof.
"HOLDER" shall mean each holder of the Common Shares and/or OP Units
listed in Schedule 1 hereto, in his, her or its capacity as a holder of
Registrable Securities. For purposes of this Agreement, the Company may deem and
treat the registered holder of a Registrable Security as the Holder and absolute
owner thereof, unless notified to the contrary in writing by the registered
Holder thereof.
"IPO" means an underwritten initial public offering by the Company of
the Common Shares pursuant to an effective registration statement filed with the
Commission under the Securities Act, or any comparable document under any
similar federal statute then in force.
"MARKET VALUE" shall mean, as of any date, the average closing price of
the Registrable Securities on the principal national securities exchange or
national quotation system in which the Registrable Securities are admitted for
trading or quotation over the ten trading days preceding such date, or if
closing prices are not available, the average of the averages of the closing bid
and asked prices over such period on such exchange or system.
"MEMBERS" shall have the meaning set forth in the Recitals hereof.
"OP UNITS" shall have the meaning set forth in the Recitals hereof.
"PERSON" shall mean any individual, partnership, corporation, limited
liability company, joint venture, association, trust, unincorporated
organization or other governmental or legal entity.
"PUBLIC OFFERING" shall mean any offering of Registrable Securities to
the public pursuant to an effective registration statement filed with the
Commission under the Securities Act, or any comparable document under any
similar federal statute then in force.
"REGISTRABLE SECURITIES" shall mean at any time a class of equity
securities of the Company or of a successor to the entire business of the
Company which (i) are (A) the Common Shares and (B) the Common Shares that may
be acquired by the Holders in connection with the exercise by such Holders of
the exchange rights associated with the OP Units and (ii) are of a class of
securities that are listed for trading on a national securities exchange;
provided, however, such Registrable Securities shall cease to be Registrable
Securities when (A) a registration statement with respect to the sale of such
Registrable Securities shall have become effective under the Securities Act and
all such Registrable Securities shall have been disposed of in accordance with
such registration statement, (B) such Registrable Securities shall have been
sold in accordance with Rule 144 (or any successor provision) under the
Securities Act, (C) such Registrable Securities become eligible to be publicly
sold without limitation as to amount or manner of sale pursuant to Rule 144(k)
(or any successor provision) under the Securities Act, or (D) such Registrable
Securities have ceased to be outstanding.
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"REGISTRATION EXPENSES" shall mean (i) the fees and disbursements of
counsel and independent public accountants for the Company incurred in
connection with the Company's performance of or compliance with this Agreement,
including the expenses of any special audits or "comfort" letters required by or
incident to such performance and compliance, and any premiums and other costs of
policies of insurance obtained by the Company against liabilities arising out of
the sale of any securities and (ii) all registration, filing and stock exchange
fees, all fees and expenses of complying with securities or "blue sky" laws, all
fees and expenses of custodians, transfer agents and registrars, all printing
expenses, messenger and delivery expenses and any fees and disbursements of one
common counsel retained by a majority of the Registrable Securities; provided,
however, "Registration Expenses" shall not include any out-of-pocket expenses of
the Holders, transfer taxes, underwriting or brokerage commissions or discounts
associated with effecting any sales of Registrable Securities that may be
offered, which expenses shall be borne by each Holder of Registrable Securities
on a pro rata basis with respect to the Registrable Securities so sold.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended (or
any successor corresponding provision of succeeding law), and the rules and
regulations thereunder.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in
Section 2(a) hereof.
"STAND-OFF PERIOD" shall have the meaning set forth in Section 6
hereof.
"VOTING POWER" shall mean voting securities or other voting interests
ordinarily (and apart from rights accruing under special circumstances) having
the right to vote in the election of board members or Persons performing
substantially equivalent tasks and responsibilities with respect to a particular
entity.
Section 2. Shelf Registrations.
a. Shelf Registration. The Company agrees to use commercially
reasonable efforts to file with the Commission no later than 14 months following
the completion of the IPO and during a period of time that the issuer of the
Registrable Securities is eligible to use Form S-3 (or any similar or successor
form), a registration statement under the Securities Act on Form S-3 (or any
similar or successor form) for the offering on a continuous or delayed basis in
the future covering resales of the Registrable Securities (the "SHELF
REGISTRATION STATEMENT"), and will use commercially reasonable efforts to cause
such Shelf Registration Statement to be declared effective by the Commission as
soon as practicable thereafter. The Shelf Registration Statement shall be on an
appropriate form and the registration statement and any form of prospectus
included therein (or prospectus supplement relating thereto) shall reflect the
plan of distribution or method of sale as the Holders may from time to time
notify the Company.
b. Effectiveness. The Company shall use commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective for the period
beginning on the date on which the Shelf Registration Statement is declared
effective and ending on the date that all of the Registrable Securities
registered under the Shelf Registration Statement cease to be Registrable
Securities. During the period that the Shelf Registration Statement is
effective, the Company shall supplement or make amendments to the Shelf
Registration Statement, if required by the Securities Act or if reasonably
requested by the Holders (whether or not required by the form on which the
securities are being registered), including to reflect any specific plan of
distribution or method of sale, and shall use its commercially reasonable
efforts to have such supplements and amendments declared effective, if required,
as soon as practicable after filing.
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Section 3. Black-Out Periods.
Notwithstanding anything herein to the contrary, the Company shall have
the right, exercisable from time to time by delivery of a notice authorized by
the Board, on not more than two occasions in any 12-month period, to require the
Holders not to sell pursuant to a registration statement or similar document
under the Securities Act filed pursuant to Section 2 or to suspend the
effectiveness thereof if at the time of the delivery of such notice, the Board
has considered a plan to engage no later than 60 days following the date of such
notice in a firm commitment underwritten public offering or if the Board has
reasonably and in good faith determined that such registration and offering,
continued effectiveness or sale would materially interfere with any material
transaction involving the Company; provided, however, that in no event shall the
black-out period extend for more than [90 days in the aggregate during any
12-month period]. The Company, as soon as practicable, shall (i) give the
Holders prompt written notice in the event that the Company has suspended sales
of Registrable Securities pursuant to this Section 3, (ii) give the Holders
prompt written notice of the completion of such offering or material transaction
and (iii) promptly file any amendment necessary for any registration statement
or prospectus of the Holders in connection with the completion of such event.
Each Holder agrees by acquisition of the Registrable Securities that
upon receipt of any notice from the Company of the happening of any event of the
kind described in this Section 3, such Holder will forthwith discontinue its
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such Holder's receipt of the
notice of completion of such event.
Section 4. Registration Procedures.
a. In connection with the filing of any registration statement as
provided in this Agreement, the Company shall use commercially reasonable
efforts to, as expeditiously as reasonably practicable:
(i) prepare and file with the Commission the requisite
registration statement (including a prospectus therein and any
supplement thereto) to effect such registration and use its
commercially reasonable efforts to cause such registration statement to
become effective; provided, however, that before filing such
registration statement or any amendments or supplements thereto, the
Company will furnish copies of all such documents proposed to be filed
to counsel for the sellers of Registrable Securities covered by such
registration statement and provide reasonable time for such sellers and
their counsel to comment upon such documents if so requested by a
Holder;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to maintain the effectiveness
of such registration and to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement during the period in which such
registration statement is required to be kept effective;
(iii) furnish to each Holder of the securities being
registered, without charge, such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits) other than those which
are being incorporated into such registration statement by reference,
such number of copies of the prospectus contained in such registration
statements (including each complete prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act in conformity with the requirements of the Securities
Act, and such other documents, including documents incorporated by
reference, as the Holders may reasonably request;
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(iv) register or qualify all Registrable Securities under such
other securities or "blue sky" laws of such jurisdictions as the
Holders and the underwriters of the securities being registered, if
any, shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement
remains in effect, and take any other action which may be reasonably
necessary or advisable to enable the Holders to consummate the
disposition in such jurisdiction of the securities owned by the
Holders, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign company or to
register as a broker or dealer in any jurisdiction where it would not
otherwise be required to qualify but for this Section 4(a)(iv), or to
consent to general service of process in any such jurisdiction, or to
be subject to any material tax obligation in any such jurisdiction
where it is not then so subject;
(v) immediately notify the Holders at any time when the
Company becomes aware that 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 any 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, at the
request of the Holders, promptly prepare and furnish to the Holders a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made;
(vi) comply or continue to comply in all material respects
with the Securities Act and the Exchange Act and with all applicable
rules and regulations of the Commission thereunder so as to enable any
Holder to sell its Registrable Securities pursuant to Rule 144
promulgated under the Securities Act, as further agreed to in Section 6
hereof;
(vii) make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the first
calendar month after the effective date of such registration statement,
which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act;
(viii) provide a transfer agent and registrar for all
Registrable Securities covered by such registration statement not later
than the effective date of such registration statement;
(ix) cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any Securities Act legend; and
enable certificates for such Registrable Securities to be issued for
such number of shares and registered in such names as the Holders may
reasonably request in writing at least two Business Days prior to any
sale of Registrable Securities;
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(x) list all Registrable Securities covered by such
registration statement on any securities exchange or national quotation
system on which any such class of securities is then listed or quoted
and cause to be satisfied all requirements and conditions of such
securities exchange or national quotation system to the listing or
quoting of such securities that are reasonably within the control of
the Company including, without limitation, registering the applicable
class of Registrable Securities under the Exchange Act, if appropriate,
and using commercially reasonable efforts to cause such registration to
become effective pursuant to the rules of the Commission;
(xi) in connection with any sale, transfer or other
disposition by any Holder of any Registrable Securities pursuant to
Rule 144 promulgated under the Securities Act, cooperate with such
Holder to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be sold and not
bearing any Securities Act legend, and enable certificates for such
Registrable Securities to be for such number of shares and registered
in such name as the Holders may reasonably request in writing at least
three Business Days prior to any sale of Registrable Securities;
(xii) notify each Holder, promptly after it shall receive
notice thereof, of the time when such registration statement, or any
post-effective amendments to the registration statement, shall have
become effective, or a supplement to any prospectus forming part of
such registration statement has been filed or when any document is
filed with the Commission which would be incorporated by reference into
the prospectus;
(xiii) notify each Holder of any request by the Commission for
the amendment or supplement of such registration statement or
prospectus for additional information; and
(xiv) advise each Holder, promptly after it shall receive
notice or obtain knowledge thereof, of (A) the issuance of any stop
order, injunction or other order or requirement by the Commission
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for such purpose and use
all commercially reasonable efforts to prevent the issuance of any stop
order, injunction or other order or requirement or to obtain its
withdrawal if such stop order, injunction or other order or requirement
should be issued, (B) the suspension of the registration of the subject
shares of the Registrable Securities in any state jurisdiction and (C)
the removal of any such stop order, injunction or other order or
requirement or proceeding or the lifting of any such suspension.
b. In connection with the filing of any registration statement
covering Registrable Securities, each Holder shall furnish in writing to the
Company such information regarding such Holder (and any of its Affiliates), the
Registrable Securities to be sold, the intended method of distribution of such
Registrable Securities and such other information requested by the Company as is
necessary or advisable for inclusion in the registration statement relating to
such offering pursuant to the Securities Act. Such writing shall expressly state
that it is being furnished to the Company for use in the preparation of a
registration statement, preliminary prospectus, supplementary prospectus, final
prospectus or amendment or supplement thereto, as the case may be.
Each Holder agrees by acquisition of the Registrable Securities that:
(i) upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 4(a)(v), such Holder will forthwith discontinue
its disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
4(a)(v); (ii) upon receipt of any notice from the Company of the happening of
any event of the kind described in clause (A) of Section 4(a)(xiv), such Holder
will discontinue its disposition of Registrable Securities pursuant to such
registration statement until such Holder's receipt of the notice described in
clause (C) of Section 4(a)(xiv); and (iii) upon receipt of any notice from the
Company of the happening of any event of the kind described in clause (B) of
Section 4(a)(xiv), such Holder will discontinue its disposition of Registrable
Securities pursuant to such registration statement in the applicable state
jurisdiction(s) until such Holder's receipt of the notice described in clause
(C) of Section 4(a)(xiv).
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Section 5. Indemnification.
a. Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder, its partners, officers, directors,
trustees, stockholders, employees, agents and investment advisers, and each
Person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act, together with the partners, officers, directors,
trustees, stockholders, employees, agents and investment advisers of such
controlling person, against any losses, claims, damages, and expenses
(including, without limitation, reasonable attorneys' fees), joint or several,
to which the Holders or any such indemnitees may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
registration statement under which such Registrable Securities were registered
and sold under the Securities Act, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
or arising out of or based upon any 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,
not misleading or any violation of the Securities Act or state securities laws
or rules thereunder by the Company relating to any action or inaction by the
Company in connection with such registration, and the Company will reimburse
each Holder for any reasonable legal or any other expenses reasonably incurred
by it in connection with investigating or defending any such loss, claim,
liability, action or proceedings; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Holder specifically stating that it is for use in the preparation thereof; and
provided, further, that the Company shall not be liable to the Holders or any
other Person who controls such Holder within the meaning of the Securities Act
or the Exchange Act in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of such Person's failure to send or give a copy of the final prospectus or
supplement to the Persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus or supplement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Holders or any such controlling Person and shall
survive the transfer of such securities by the Holders.
b. Indemnification by the Holders. Each Holder agrees to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 5(a)) the Company, each member of the Board, each officer,
employee, agent and investment adviser of the Company and each other Person, if
any, who controls any of the foregoing within the meaning of the Securities Act
or the Exchange Act, with respect to any untrue statement or alleged untrue
statement of a material fact in or omission or alleged omission to state a
material fact from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, if 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 regarding such
Holder giving such indemnification specifically stating that it is for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such Board member, officer, employee, agent,
investment adviser or controlling Person and shall survive the transfer of such
securities by any Holder. The obligation of a Holder to indemnify will be
several and not joint, among the Holders of Registrable Securities and the
liability of each such Holder of Registrable Securities will be in proportion to
and limited in all events to the net amount received by such Holder from the
sale of Registrable Securities pursuant to such registration statement.
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c. Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 5,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding paragraphs of this Section 5, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to assume the defense thereof,
for itself, if applicable, together with any other indemnified party similarly
notified, and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to the indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof.
d. Indemnification Payments. To the extent that the indemnifying
party does not assume the defense of an action brought against the indemnified
party as provided in Section 5(c), the indemnified party (or parties if there is
more than one) shall be entitled to the reasonable legal expenses of common
counsel for the indemnified party (or parties). In such event, however, the
indemnifying party will not be liable for any settlement effected without the
written consent of such indemnifying party, which consent shall not be
unreasonably withheld. The indemnification required by this Section 5 shall be
made by periodic payments of the amount thereof during the course of an
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred. The indemnifying party shall not settle any
claim without the consent of the indemnified party unless such settlement
involves a complete release of such indemnified party without any admission of
liability by the indemnified party.
e. Contribution. If, for any reason, the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission) or (ii) if the allocation provided by
subclause (i) above is not permitted by applicable law or provides a lesser sum
to the indemnified party than the amount hereinafter calculated, in the
proportion as is appropriate to reflect not only the relative fault of the
indemnifying party and the indemnified party, but also the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other, as well as any other relevant equitable considerations. No
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation, and
the liability for contribution of each Holder of Registrable Securities will be
in proportion to and limited in all events to the net amount received by such
Holder from the sale of Registrable Securities pursuant to such registration
statement.
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Section 6. Market Stand-Off Agreement. Each Holder hereby agrees that
it shall not, to the extent requested by the Company or an underwriter of
securities of the Company, directly or indirectly sell, offer to sell (including
without limitation any short sale), grant any option or otherwise transfer or
dispose of any Registrable Securities (other than to donees or partners of the
Holder who agree to be similarly bound) within seven days prior to and for up to
90 days following the effective date of a registration statement of the Company
filed under the Securities Act or the date of an underwriting agreement with
respect to an underwritten public offering of the Company's securities (the
"STAND-OFF PERIOD"); provided, however, that:
a. with respect to the Stand-Off Period, such agreement shall not
be applicable to the Registrable Securities to be sold on the Holder's behalf to
the public in an underwritten offering pursuant to such registration statement;
b. all executive officers and directors of the Company then
holding Common Shares of the Company shall enter into similar agreements;
c. the Company shall use commercially reasonable efforts to
obtain similar agreements from each 5% or greater shareholder of the Company;
and
d. the Holders shall be allowed any concession or proportionate
release allowed to any (i) officer, (ii) director or (iii) other 5% or greater
shareholder of the Company that entered into similar agreements.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the
Registrable Securities subject to this Section 6 and to impose stop transfer
instructions with respect to the Registrable Securities and such other Common
Shares of each Holder (and the Common Shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
Section 7. Covenants Relating To Rule 144. At such times as the Company
becomes obligated to file reports in compliance with either Section 13 or 15(d)
of the Exchange Act, the Company covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act and
that it will take such further action as any Holder may reasonably request, all
to the extent required from time to time to enable Holders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
rule may be amended from time to time or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
Section 8. Miscellaneous.
a. Termination; Survival. The rights of each Holder under this
Agreement shall terminate upon the date that all of the Registrable Securities
held by such Holder may be sold during any three-month period in a single
transaction or series of transactions without volume limitations under Rule 144
(or any successor provision) under the Securities Act. Notwithstanding the
foregoing, the obligations of the parties under Section 5 and paragraphs (d),
(e) and (g) of this Section 8 shall survive the termination of this Agreement.
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b. Expenses. All Registration Expenses incurred in connection
with any Shelf Registration under Section 2 shall be borne by the Company,
whether or not any registration statement related thereto becomes effective.
c. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to each of the other parties.
d. Applicable Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. The
parties consent to the exclusive jurisdiction of the United States District
Court for the Southern District of New York in connection with any civil action
concerning any controversy, dispute or claim arising out of or relating to this
Agreement, or any other agreement contemplated by, or otherwise with respect to,
this Agreement or the breach hereof, unless such court would not have subject
matter jurisdiction thereof, in which event the parties consent to the
jurisdiction of the State of New York. The parties hereby waive and agree not to
assert in any litigation concerning this Agreement the doctrine of forum non
conveniens.
e. Waiver Of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
f. Prior Agreement; Construction; Entire Agreement. This
Agreement, including the exhibits and other documents referred to herein (which
form a part hereof), constitutes the entire agreement of the parties with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings between the parties, and all such prior agreements and
understandings are merged herein and shall not survive the execution and
delivery hereof.
g. Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service or be telecopier and shall be deemed given
when so delivered by hand or, if mailed, three days after mailing (one Business
Day in the case of express mail or overnight courier service), addressed as
follows:
If to the Holder: To the address indicated for such Holder in Schedule 1
hereto.
If to the Company: Xxxxxxx Mall Properties, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq., General Counsel
Facsimile: 000-000-0000
with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx
Facsimile: 000-000-0000
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h. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder. Without limiting the
foregoing, each Holder shall have the right to cause the Company to extend the
rights of the Holder set forth in this Agreement with respect to its Common
Shares and OP Units to the permitted transferee of such Holder. In order to
become the beneficiary of such rights, the transferee shall execute a
counterpart of this Agreement, agree to be bound by the terms hereof and become
a "Holder" for purposes of this Agreement. The Company may assign its rights or
obligations hereunder to any successor to the Company's business or with the
prior written consent of Holders of a majority of the then outstanding
Registrable Securities. Notwithstanding the foregoing, no assignee of the
Company shall have any of the rights granted under this Agreement until such
assignee shall acknowledge its rights and obligations hereunder by a signed
written agreement pursuant to which such assignee accepts such rights and
obligations.
i. Headings. Headings are included solely for convenience of
reference and if there is any conflict between headings and the text of this
Agreement, the text shall control.
j. Amendments And Waivers. The provisions of this Agreement may
be amended or waived at any time only by the written agreement of the Company
and the Holders of a majority of the Registrable Securities; provided, however,
that the provisions of this Agreement may not be amended or waived without the
consent of the Holders of all the Registrable Securities adversely affected by
such amendment or waiver if such amendment or waiver adversely affects a portion
of the Registrable Securities but does not so adversely affect all of the
Registrable Securities; provided, further, that the provisions of the preceding
provision may not be amended or waived except in accordance with this sentence.
Any waiver, permit, consent or approval of any kind or character on the part of
any such Holders of any provision or condition of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in
writing. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each Holder of Registrable Securities and the Company.
k. Interpretation; Absence Of Presumption. For the purposes
hereof, (i) words in the singular shall be held to include the plural and vice
versa and words of one gender shall be held to include the other gender as the
context requires, (ii) the terms "hereof," "herein," and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, paragraph or other references are to the Sections, paragraphs, or other
references to this Agreement unless otherwise specified, (iii) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless the context otherwise requires or unless
otherwise specified, (iv) the word "or" shall not be exclusive and (v)
provisions shall apply, when appropriate, to successive events and transactions.
This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instruments to be drafted.
l. Severability. If any provision of this Agreement shall be or
shall be held or deemed by a final order by a competent authority to be invalid,
inoperative or unenforceable, such circumstance shall not have the effect of
rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable, but this Agreement shall be construed as if such
invalid, inoperative or unenforceable provision had never been contained herein
so as to give full force and effect to the remaining such terms and provisions.
m. Specific Performance; Other Rights. The parties recognize that
various other rights rendered under this Agreement are unique and, accordingly,
the parties shall, in addition to such other remedies as may be available to
them at law or in equity, have the right to enforce the rights under this
Agreement by actions for injunctive relief and specific performance.
-11-
n. Further Assurances. In connection with this Agreement, as well
as all transactions and covenants contemplated by this Agreement, each party
hereto agrees to execute and deliver or cause to be executed and delivered such
additional documents and instruments and to perform or cause to be performed
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
all such transactions and covenants contemplated by this Agreement.
o. No Waiver. The waiver of any breach of any term or condition
of this Agreement shall not operate as a waiver of any other breach of such term
or condition or of any other term or condition, nor shall any failure to enforce
any provision hereof operate as a waiver of such provision or of any other
provision hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
XXXXXXX MALL PROPERTIES, INC.,
a Maryland corporation
By: _________________________________________
Name:
Title:
HOLDERS
---------------------------------------------
Xxxxxxxx Xxxxxxx
---------------------------------------------
Xxxxx Xxxxx
---------------------------------------------
Xxxxx Xxxxxx
---------------------------------------------
Xxxxxxx Xxxxxx
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SCHEDULE 1
THE HOLDERS
(a) List of holders of Common Shares and OP Units convertible into Common
Shares on a one-for-one basis:
--------------------------------------------------------------------------------
NUMBER OF
COMMON SHARES NUMBER OF ADDRESS OF
NAME OF THE HOLDER HELD OP UNITS HELD THE HOLDER
--------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx 100,000
--------------------------------------------------------------------------------
Xxxxx Xxxxx
--------------------------------------------------------------------------------
Xxxxx Xxxxxx
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxx
--------------------------------------------------------------------------------
-14-
