REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of the 13th day of November, 1997 by and between Urban Shopping Centers,
Inc., a Maryland corporation (the "Company"), and Security Capital Preferred
Growth Incorporated, a Maryland corporation (the "Investor").
WHEREAS, pursuant to that certain Preferred Share Purchase Agreement,
dated as of November 5, 1997 (the "Purchase Agreement"), by and among the
Company, Urban Shopping Centers, L.P., an Illinois limited partnership, and
the Investor, the Investor has agreed to purchase 2,999,400 shares of Series
A Cumulative Convertible Redeemable Preferred Stock, par value $.01 per share,
of the Company (the "Preferred Stock"), all of which Preferred Stock may be
converted into shares of the Company's common stock, par value $.01 per share
(the "Common Stock"), pursuant to the terms of such Preferred Stock; and
WHEREAS, in connection with the Purchase Agreement, the Company has
agreed to register for sale by the Investor and certain transferees, the
shares of Common Stock issued or issuable upon conversion of shares of
Preferred Stock (collectively, the "Registrable Shares"); and
WHEREAS, the parties hereto desire to enter into this Agreement to
evidence the foregoing agreement of the Company and the mutual covenants of
the parties relating thereto.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
0. CERTAIN DEFINITIONS. In this Agreement, the following terms shall have
the following respective meanings:
"Accredited Investor" shall have the meaning set forth in Rule 501
under the Securities Act.
"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) the Investor and (b) each Person holding
Registrable Shares as a result of a transfer or assignment to that Person of
Registrable Shares other than pursuant to an effective registration statement
or Rule 144.
"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
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.
"Registration Expenses" shall mean all out-of-pocket expenses
(excluding Selling Expenses) incurred by the Company in complying with
Section 2, including, without limitation, the following: (a) all registration,
filing and listing fees; (b) fees and expenses of compliance with federal and
state securities or real estate syndication laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with
state securities and real estate syndication qualifications of the
Registrable Shares under the laws of such jurisdictions as the Holders may
reasonably designate); (c) printing (including, without limitation, expenses
of printing or engraving certificates for the Registrable Shares in a form
eligible for deposit with The Depository Trust Company and otherwise meeting
the requirements of any securities exchange on which they are listed and of
printing registration statements and prospectuses), messenger, telephone,
shipping and delivery expenses; (d) fees and disbursements of counsel for the
Company; (e) fees and disbursements of all independent public accountants of
the Company (including, without limitation, the expenses of any annual or
special audit and "cold comfort" letters required by the managing underwriter);
(f) fees and expenses incurred in connection with the listing of the
Registrable Shares on each securities exchange on which securities of the same
class are then listed; and (g) fees and expenses associated with any filing
with the National Association of Securities Dealers, Inc. required to be made
in connection with the registration statement.
"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.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to any sale of Registrable
Shares and, if neither the Company nor any Person not a Holder shall include
securities within the subject Registration, shall include all travel and
other expenses of members of the management of the Company and its affiliates
in connection with the matters described in SECTION 6 (and if the Company or
any such Person shall so include securities, Selling Expenses shall include
a pro rata portion of such travel and other expenses).
1. REGISTRATION.
() Upon receipt of a written request (a "Registration Request")
delivered not earlier than nine months from the date hereof from Holders
holding at least 50% of the shares of Preferred Stock and Registrable Shares
then outstanding, the Company shall, as soon as practicable but not later than
30 days after its receipt of such Registration Request, 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 90 days after its receipt of such Registration Request
(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 Company 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 Company would be
required to execute a general consent to service of process in effecting such
Registration, qualification or compliance unless the Company is already
subject to service in such jurisdiction.
Notwithstanding the foregoing, the Company 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 60
days each during each calendar year, if the Company furnishes to the Holders a
certificate signed by the President or any other executive officer or any
director of the Company stating that, in the good faith judgment of the
Company, it would be detrimental to the Company 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 Company has
elected to defer the filing of such registration statement (or to suspend
sales under a filed registration statement).
(a) The Company shall promptly notify the Holders of the occurrence
of the following events:
() when any registration statement relating to the Registrable
Shares or post-effective amendment thereto filed with the Commission has
become effective;
(i) the issuance by the Commission of any stop order
suspending the effectiveness of any registration statement relating to the
Registrable Shares;
(ii) the suspension of an effective registration statement by
the Company in accordance with the last paragraph of Section 2(a);
(iii) the Company'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
(iv) 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
during the distribution of securities.
The Company agrees to 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.
(b) The Company 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 as the requesting
Holders may reasonably request in order to facilitate the disposition of the
Registrable Shares covered by such registration statement. The Company
consents to the use of 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 Company
shall also file a sufficient number of copies of the prospectus and any post-
effective amendment or supplement thereto with the New York Stock Exchange
(or, if the Common Stock is no longer listed thereon, with such other
securities exchange or market on which the Common Stock is then listed) so as
to enable the Holders to have the benefits of the prospectus delivery
provisions of Rule 153 under the Securities Act.
(c) The Company agrees to 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.
(d) Subject to the Company'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 Company
agrees to notify the Holders and prepare and furnish to the Holders a post-
effective amendment to the registration statement or supplement to the
prospectus or any document incorporated therein by reference or 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.
(e) The Company agrees to 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 securities of the same class are then listed.
(f) The Company agrees to 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 earning statement satisfying the
provisions of Section 11(a) of the Securities Act.
(g) The Company agrees to 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 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.
2. EXPENSES OF REGISTRATION. The Company shall pay all Registration Expenses
incurred in connection with the Registration, qualification or compliance
pursuant to Section 2. All Selling Expenses incurred in connection with the
sale of Registrable Shares by any of the Holders shall be borne by the Holder
selling such Registrable Shares. Each Holder shall pay the expenses of its own
counsel.
3. INDEMNIFICATION.
() The Company 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 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 Company 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 upon and in conformity with information furnished
in writing to the Company by such Holder for inclusion therein.
(a) Each Holder shall indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by
such registration statement, and each person who controls the Company 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 upon and in conformity with information furnished in writing to the
Company or such underwriter by such Holder for inclusion therein.
(b) 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.
(c) 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 Company and each holder of
Registrable Shares agrees 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).
(d) 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.
(e) 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.
4. INFORMATION TO BE FURNISHED BY HOLDERS. Each Holder shall furnish to the
Company such information as the Company 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 Company with such
information within two weeks of the Company's request, the Company'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.
5. UNDERTAKING TO PARTICIPATE IN UNDERWRITING. If the Holders of at least
$50 million of the Registrable Securities propose to sell Registrable
Securities in an underwritten public offering, the Company shall make
available members of the management of the Company and its affiliates for
reasonable assistance in selling efforts relating to such offering, to the
extent customary for a public offering (including, without limitation, to the
extent customary, senior management attendance at due diligence meetings with
underwriters and their counsel and road shows) and shall enter into
underwriting agreements containing usual and customary terms and conditions
reasonably acceptable to the Company for such types of offerings.
6. RULE 144 SALES.
The Company covenants that it shall file the reports required to be
filed by the Company under the Exchange Act, so as to enable any Holder to
sell Registrable Shares pursuant to Rule 144.
In connection with any sale, transfer or other disposition by any Holder
of any Registrable Shares pursuant to Rule 144, the Company 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.
7. MISCELLANEOUS.
() 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.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof.
(b) 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.
(c) 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 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 an Investor, at
such Investor's address or fax number set forth below its signature hereto,
or at such other address or fax number as such Investor furnished to the
Company in writing, or (ii) if to any assignee or transferee of an Investor,
at such address or fax number as such assignee or transferee furnished to the
Company in writing, or (iii) if to the Company, 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 Company furnished to the Investor
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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) REMEDIES. The Company and the Investor 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 Company 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.
(i) ATTORNEYS' FEES. If the Company 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
URBAN SHOPPING CENTERS, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Senior Vice President
SECURITY CAPITAL PREFERRED
GROWTH INCORPORATED
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Vice President
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