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EXHIBIT 10.16
AMENDMENT NO. 1
TO MISCELLANEOUS RIGHTS AGREEMENT
OF PAN PACIFIC RETAIL PROPERTIES, INC.,
A MARYLAND CORPORATION
THIS AMENDMENT NO. 1 TO MISCELLANEOUS RIGHTS AGREEMENT OF PAN PACIFIC
RETAIL PROPERTIES, INC. ("Amendment") is made and entered into as of the 12th
day of January, 2001 by and among Pan Pacific Retail Properties, Inc., a
Maryland corporation (the "Company"), Xxxxxx X. Xxxx, an individual ("Xxxxxx
Xxxx") and Revenue Properties (U.S.) Inc., a Delaware corporation, formerly
known as Pan Pacific Development (U.S.) Inc. ("PPD") and shall become effective
as provided in Section 5 hereof.
RECITALS
A. The Company and PPD entered into a Miscellaneous Rights Agreement
dated as of August, 1997 (the "Agreement").
B. The Company and PPD have engaged in discussions and reached certain
agreements regarding the Ownership Limit of PPD, the Tanz Family and Acktion
Corporation, a corporation incorporated under the laws of Canada ("Acktion").
C. In consideration of these discussions and agreements, the parties
hereto now desire to amend this Agreement to amend PPD's registration rights,
board nomination rights and proportional purchase rights.
D. Capitalized terms used in this Amendment shall have the meaning
ascribed to such terms in the Agreement.
AMENDMENT
NOW, THEREFORE in consideration of the foregoing Recitals, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
1. Amendment of the Defined Term "Ownership Limit". The defined term
"Ownership Limit" is hereby amended to read in its entirety as follows:
"Ownership Limit" means, with respect to Persons, the percentages
set forth in the provisions of Article VIII of the Charter of the
Company, or in resolutions of the Board of Directors of the
Company pursuant to the Charter, restricting the ownership of
Common Stock to specified percentages of the outstanding Common
Stock.
2. Amendment to Section 2.5(a). Section 2.5(a) of the Agreement is
hereby amended to delete the entirety of the proviso contained therein.
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3. Amendment to Article III. Article III is hereby amended to read in
its entirety as follows:
"ARTICLE III
DIRECTOR DESIGNATION
SECTION 3.1 Designation of Directors.
(a) For so long as PPD Persons together beneficially own in the
aggregate shares of Common Stock equal to or exceeding 15% of the total
outstanding shares of Common Stock, the PPD Persons will have the right to
nominate for election to the Board of Directors of the Company and for the
filling of any vacancies on the Board of Directors of the Company created by
such nominees one member of such Board of Directors.
(b) The Company agrees to nominate for election to the Board of
Directors of the Company or for the filling of any vacancies on the Board of
Directors of the Company or for the filling of any vacancies on the Board of
Directors of the Company created by such nominee the person designated by the
PPD Persons pursuant to this Article III.
SECTION 3.2 Mechanics of Designation.
(a) In the absence of notice to the contrary from PPD, the rights
granted to the PPD Persons pursuant to this Article III shall be exercised by
PPD.
(b) The Company shall give PPD at least 60 days prior written notice
of the date of the proposed mailing of proxy materials for election of directors
of the Company. PPD shall within 10 days of receipt of such notice from the
Company give written notice (a "Section 3.2(b) Notice") to the Company of the
name of the person that PPD intends to nominate for election or reelection to
the Board of Directors of the Company and all information relating to such
person that is required to be disclosed in solicitation of proxies for election
of directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Exchange Act (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected). At
the request of the Board of Directors of the Company, any person so nominated
for election as a director shall furnish to the Secretary of the Company that
information required to be set forth in the Section 3.2(b) Notice.
(c) In addition, the Company agrees that in the event of any vacancies
on the Board of Directors resulting from the death, removal or resignation of
any person nominated by the PPD Persons as a director, the other directors of
the Company will vote in favor of the person designated by PPD to fill such
vacancy."
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4. Amendment to Article IV. Article IV is hereby amended to read in
its entirety as follows:
"ARTICLE IV
PROPORTIONAL PURCHASE
SECTION 4.1 Proportional Purchase Rights. For so long as PPD Persons
beneficially own in the aggregate shares of Common Stock equal to or exceeding
15% of the total outstanding shares of Common Stock, if from time to time the
Purchase Percentage of any PPD Person would be reduced as a result of any
issuance of Common Stock by the Company or could be reduced as a result of any
issuance of Convertible Securities (assuming, in the case of Convertible
Securities, the conversion, exchange or exercise at such time of all Convertible
Securities to be issued in such issuance) by the Company (in either case,
whether for cash, property or otherwise), the Company shall so notify the PPD
Persons then, directly or indirectly, owning Common Stock in writing not less
than 7 days (or, if longer, the minimum period of notice given to any other
person who may be granted proportional purchase rights to acquire Common Stock
in the future) prior to the proposed date of any such issuance and shall offer
to sell to each such PPD Person, and, if such offer is accepted in writing by
such PPD Person (x) if such issuance is made pursuant to an underwriting or
private placement purchase agreement, the day such agreement is executed (it
being understood that the Company will give each such PPD Person at least four
Business Day's prior notice of such date of execution) or (y) if such issuance
is not made pursuant to such an agreement, the fifth Business Day prior to the
proposed date of such issuance, the Company shall sell to each such PPD Person,
that number of shares of Common Stock or the number of Convertible Securities to
be issued which would result in the Purchase Percentage of such PPD Person
immediately after such issuance equaling the Purchase Percentage of such PPD
Person in effect immediately prior to such issuance (assuming, in the case of
Convertible Securities, the conversion, exchange or exercise at such time of all
Convertible Securities to be issued in such issuance), or any lesser amount of
Common Stock or Convertible Securities to be issued in such issuance as may be
designated by the PPD Person, in either case at a price per share or other
trading unit of such Common Stock or Convertible Securities, as the case may be,
to be received by the Company in such issuance, less any underwriting discounts
and commissions, and otherwise on the same terms as may be applicable to such
issuance; provided, however, that this Section 4.1 shall not be applicable to
the issuance of shares of Common Stock or Convertible Securities pursuant to
grants under the Company's stock option, stock incentive and other compensatory
plans or the issuance of Common Stock or Convertible Securities pursuant to any
merger, acquisition or similar transaction."
5. Effect of Amendment. This Amendment shall become effective on the
later of (i) the date of this Amendment first set forth above and (ii) the date
on which the Board of Directors of the Company adopts a resolution continuing
the current 12.75% Ownership Limit for Acktion Corporation beyond January 12,
2001. Except to the extent expressly modified by this Amendment, the Agreement
shall remain in full force and effect.
6. Conflicting Terms. Wherever the terms of this Amendment and the
terms and conditions of the Agreement are in conflict, the terms of this
Amendment shall be deemed to supersede the conflicting terms of the Agreement.
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NEXT PAGE SIGNATURE PAGE
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
PAN PACIFIC RETAIL PROPERTIES, INC.,
a Maryland corporation
By: /s/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
XXXXXX X. XXXX
/s/ XXXXXX X. XXXX
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REVENUE PROPERTIES (U.S.) INC.,
a Delaware corporation
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
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