1
EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of the 10th day of June, 1999 by and among Urban Shopping Centers, Inc., a
Maryland corporation (the "Corporation"), Urban Shopping Centers, L.P., an
Illinois limited partnership (the "Operating Partnership"), and Kenwood Plaza
Limited Partnership, an Ohio limited partnership ("KPLP").
WHEREAS, pursuant to that certain Contribution Agreement, dated as of
the date hereof (the "Contribution "Agreement"), among the Operating
Partnership, KPLP and others, KPLP is being issued units of limited partnership
interest in the Operating Partnership ("Units"), which are exchangeable for
shares of common stock, par value $.01 per share (the "Common Shares"), of the
Corporation as provided in the partnership agreement of the Operating
Partnership; and
WHEREAS, in connection with the Contribution Agreement, the Corporation
has agreed to register for sale by KPLP the Common Shares issuable to KPLP upon
exchange of Units issued pursuant to the Contribution Agreement (the
"Registrable Shares"); and
WHEREAS, the parties hereto desire to enter into this Agreement to
evidence the foregoing agreement of the Corporation and the mutual covenants of
the parties relating thereto;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. In this Agreement, the following
terms shall have the following respective meanings:
"Affiliate" shall mean, when used with respect to any Person,
another Person which directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Commission" shall mean the Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder, all as
the same are in effect at the relevant time.
"Holders" shall mean (a) KPLP and (b) each Person holding
Registrable Shares as a result of a transfer or assignment to such Person of
Registrable Shares which is not prohibited by
2
any agreement, law or regulation, other than pursuant to an effective
registration statement or Rule 144.
"Lock-up Period" shall mean a period of one year from the date
hereof.
"Person" shall mean an individual, corporation, partnership,
limited liability company, estate, trust, association, private foundation, joint
stock company or other entity.
"Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with, and pursuant to Rule 415 under, the Securities Act providing
for the sale by the Holders of Registrable Shares in accordance with the method
or methods of distribution designated by the Holders, and the declaration or
ordering of the effectiveness of such registration statement by the Commission.
"Rule 144" shall mean Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder, all as the
same are in effect at the relevant time.
SECTION 2. REGISTRATION.
a. The Corporation shall, prior to 60 days after the
expiration of the Lock-up Period, prepare and file with the Commission a
registration statement for the purpose of effecting a Registration of the sale
of Registrable Shares by the Holders thereof; shall use its best efforts to
effect such Registration as soon as practicable but not later than 120 days
after the expiration of the Lock-up Period (including, without limitation, the
execution of an undertaking to file post-effective amendments and appropriate
qualification under applicable state securities and real estate syndication
laws); and shall keep such Registration continuously effective until the earlier
of (i) the third anniversary of the date hereof, (ii) the date on which all
Registrable Shares have been sold pursuant to such registration statement or
Rule 144 and (iii) the date on which all of the Registrable Shares may be sold
in accordance with Rule 144(k); provided, however, that the Corporation shall
not be obligated to take any action to effect any such Registration,
qualification or compliance pursuant to this Section 2 in any particular
jurisdiction in which the Corporation would be required to execute a general
consent to service of process in effecting such Registration, qualification or
compliance unless the Corporation is already subject to service in such
jurisdiction.
Notwithstanding the foregoing, the Corporation shall have the
right (the "Suspension Right") to defer such filing (or suspend sales under any
filed registration statement or defer the updating of any filed registration
statement and suspend sales thereunder) for two periods of not more than 90 days
each during any twelve-month period, if the Corporation furnishes to the Holders
a certificate signed by the President or any other executive officer or any
Director of the Corporation stating that, in the good faith judgment of the
Corporation, it would be detrimental to the
2
3
Corporation and its shareholders to file such registration statement or
amendment thereto at such time (or to continue sales under a filed registration
statement) and therefore the Corporation has elected to defer the filing of such
registration statement (or to suspend sales under a filed registration
statement). If the Corporation exercises its Suspension Right pursuant to this
paragraph, the period in clause (i) of the preceding paragraph shall be extended
by the length of any such deferrals or suspensions.
b. The Corporation shall promptly notify the Holders of
the occurrence of the following events:
i. when any registration statement relating to
the Registrable Shares or post-effective
amendment thereto filed with the Commission
has become effective;
ii. the issuance by the Commission of any stop
order suspending the effectiveness of any
registration statement relating to the
Registrable Shares;
iii. the suspension of an effective registration
statement by the Corporation in accordance
with the last paragraph of Section 2(a);
iv. the Corporation's receipt of any
notification of the suspension of the
qualification of any Registrable Shares
covered by a registration statement for sale
in any jurisdiction; and
v. the existence of any event, fact or
circumstance which results in a registration
statement or prospectus relating to
Registrable Shares or any document
incorporated therein by reference containing
an untrue statement of a material fact or
omitting to state a material fact required
to be stated therein or necessary to make
the statements therein not misleading.
The Corporation shall use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of any such registration statement or
any state qualification as promptly as possible.
c. The Corporation shall provide to the Holders, at no cost to
the Holders, a copy of the registration statement and any amendment thereto used
to effect the Registration of the Registrable Shares, each prospectus contained
in such registration statement or post-effective amendment and any amendment or
supplement thereto and such other documents in such quantities as the requesting
Holders may reasonably request in order to facilitate the disposition of the
Registrable Shares covered by such registration statement. The Corporation
consents to the use of
3
4
each such prospectus and any supplement thereto by the Holders in connection
with the offering and sale of the Registrable Shares covered by such
registration statement or any amendment thereto. The Corporation shall also file
a sufficient number of copies of the prospectus and any post-effective amendment
or supplement thereto with any securities exchange or market on which the Common
Shares are then listed so as to enable the Holders to have the benefits of the
prospectus delivery provisions of Rule 153 under the Securities Act.
d. The Corporation shall use its best efforts to cause the
Registrable Shares covered by a registration statement to be registered with or
approved by such state securities authorities as may be necessary to enable the
Holders to consummate the disposition of such shares pursuant to the plan of
distribution set forth in the registration statement.
e. Subject to the Corporation's Suspension Right, if any
event, fact or circumstance exists requiring an amendment to a registration
statement relating to the Registrable Shares or supplement to a prospectus
relating to the Registrable Shares, immediately upon becoming aware thereof the
Corporation shall notify the Holders and to prepare and furnish to the Holders
reasonably promptly a post-effective amendment to the registration statement or
supplement to the prospectus or any document incorporated therein by reference
or to file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Shares, the prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
f. The Corporation shall use its reasonable best efforts
(including the payment of any listing fees) to obtain the listing of all
Registrable Shares covered by the registration statement on each securities
exchange on which the Common Shares are then listed.
g. The Corporation shall use its best efforts to comply with
the Securities Act and the Exchange Act and, as soon as reasonably practicable
following the end of any fiscal year during which a registration statement
effecting a Registration of the Registrable Shares was effective, to make
available to its security holders an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
h. The Corporation shall cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Shares to be sold pursuant to a Registration and not bearing any
Securities Act legend; and to enable certificates for such Registrable Shares to
be issued for such numbers of shares and registered in such names as the Holders
may reasonably request at least two business days prior to any sale of
Registrable Shares.
SECTION 3. EXPENSES OF REGISTRATION.
(a) Except as set forth in Section 3(b), all expenses (not to
exceed $25,000) incurred in connection with the Registration, qualification or
compliance pursuant to Section 2 shall
4
5
be paid by the Holders of Registrable Shares pro rata based on the number of
Registrable Shares to be registered. Any such expenses in excess of $25,000
shall be paid by the Corporation. The expenses shall include, without
limitation, printing and photocopying expenses, fees and disbursements of
counsel for the Holders of Registrable Shares, all registration and filing fees
under Federal and state securities laws, and expenses of complying with the
securities or blue sky laws of any jurisdictions.
(b) The Corporation shall pay the expenses of its counsel to
prepare the registration statement and the prospectus used in connection
therewith and any amendment or supplement thereto, and necessary accounting
expenses, including any audits to which the Corporation shall agree and which
shall be necessary to comply with governmental requirements in connection with
such registration.
SECTION 4. INDEMNIFICATION.
a. The Corporation shall indemnify each Holder, each Holder=s
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (including reasonable legal fees and expenses),
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement or prospectus relating
to the Registrable Shares, or any amendment or supplement thereto, or based on
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Corporation shall not be liable in any such case to
the extent that any such claim, loss, damage or liability arises out of or is
based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information furnished in
writing to the Corporation by such Holder for inclusion therein.
b. Each Holder shall indemnify the Corporation, each of its
Directors and officers, each underwriter, if any, of the Corporation's
securities covered by such registration statement, and each person who controls
the Corporation or such underwriter within the meaning of Section 15 of the
Securities Act, each other Holder with Registrable Shares covered by such
registration statement, and each officer, director and controlling person of
each such other Holder, against all expenses, claims, losses, damages and
liabilities (including reasonable legal fees and expenses) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement or prospectus, or any amendment or
supplement thereto, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement or prospectus in
reliance on and in conformity with information furnished in writing to the
Corporation or such underwriter by such Holder for inclusion therein.
5
6
c. Each party entitled to indemnification under this Section 4
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party pursuant to the provisions
of this Section 4 except to the extent of the actual damages suffered by such
delay in notification. The Indemnifying Party shall assume the defense of such
action, including the employment of counsel to be chosen by the Indemnifying
Party to be reasonably satisfactory to the Indemnified Party, and payment of
expenses. The Indemnified Party shall have the right to employ its own counsel
in any such case, but the legal fees and expenses of such counsel shall be at
the expense of the Indemnified Party, unless the employment of such counsel was
authorized in writing by the Indemnifying Party in connection with the defense
of such action, or the Indemnifying Party did not employ counsel to take charge
of the defense of such action or the Indemnified Party reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to the Indemnifying Party (in which case the
Indemnifying Party shall not have the right to direct the defense of such action
on behalf of the Indemnified Party), in any of which events such fees and
expenses shall be borne by the Indemnifying Party. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to the entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation.
d. If the indemnification provided for in this Section 4 is
unavailable to a party which would have been an Indemnified Party under this
Section 4 in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party which would have been an Indemnifying Party
hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
expenses, claims, losses, damages and liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Indemnifying Party or such Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Corporation and each holder of Registrable Shares
agree that it would not be just and equitable if contribution pursuant to this
Section were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 4(d).
e. 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.
6
7
f. In no event shall any Holder be liable for any expenses,
claims, losses, damages or liabilities pursuant to this Section 4 in excess of
the net proceeds to such Holder of any Registrable Shares sold by such Holder.
SECTION 5. INFORMATION TO BE FURNISHED BY HOLDERS. Each Holder shall
furnish to the Corporation such information as the Corporation may reasonably
request and as is required in connection with the Registration and related
proceedings referred to in Section 2. If any Holder fails to provide the
Corporation with such information within two weeks of the Corporation=s request,
the Corporation's obligations under Section 2 with respect to such Holder or the
Registrable Shares owned by such Holder shall be suspended until such Holder
provides such information.
SECTION 6. RULE 144 SALES.
a. The Corporation covenants that it shall file the reports
required to be filed by the Corporation under the Exchange Act, so as to enable
any Holder to sell Registrable Shares pursuant to Rule 144.
b. In connection with any sale, transfer or other disposition
by any Holder of any Registrable Shares pursuant to Rule 144, the Corporation
shall cooperate with such Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Shares to be sold and not
bearing any Securities Act legend, and enable certificates for such Registrable
Shares to be for such number of shares and registered in such names as the
selling Holder may reasonably request at least two business days prior to any
sale of Registrable Shares.
SECTION 7. MISCELLANEOUS.
a. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without giving
effect to the conflict of law provisions thereof.
b. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof.
c. AMENDMENT. No amendment, supplement, modification, waiver
or termination of this Agreement shall be binding unless executed in writing by
the party sought to be bound thereby.
d. NOTICES, ETC. Unless otherwise provided herein, any notice
required or permitted under this Agreement shall be given in writing, and shall
be deemed effectively given (a) upon personal delivery to the party to be
notified, (b) on the fifth business day after deposit with the United States
Post Office, by registered or certified mail, postage prepaid, (c) on the next
business
7
8
day after dispatch via nationally recognized overnight courier or (d) upon
confirmation of transmission by facsimile, all addressed to the party to be
notified. Notices shall be addressed as follows: (i) if to KPLP, at the address
or fax number set forth below its signature hereto, or at such other address or
fax number as KPLP furnished to the Corporation in writing or (ii) if to any
assignee or transferee of KPLP, at such address or fax number as such assignee
or transferee furnished to the Corporation in writing, or (iii) if to the
Corporation, at the address of its principal executive offices and addressed to
the attention of the President, or at such other address or fax number as the
Corporation furnished to KPLP or any assignee or transferee. Any notice or other
communication required to be given hereunder to a Holder in connection with a
registration may instead be given to the designated representative of such
Holder.
e. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
f. SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
g. TITLES AND SUBTITLES. The title and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
h. SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding on the respective successors and assigns of the parties hereto.
i. REMEDIES. The Corporation and KPLP 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 the Corporation and each
Holder, 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 obligations of
another 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.
j. ATTORNEYS' FEES. If the Corporation or any Holder brings an
action to enforce its rights under this Agreement, the prevailing party in the
action shall be entitled to recover its costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred in connection with such action,
including any appeal of such action.
8
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
URBAN SHOPPING CENTERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
URBAN SHOPPING CENTERS, L.P.
By: Urban Shopping Centers, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
KENWOOD PLAZA LIMITED PARTNERSHIP
0000 Xxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: General Partner
--------------------------------
9
