REGISTRATION RIGHTS AGREEMENT dated as of March 13, 2008 by and among URSTADT BIDDLE PROPERTIES INC. and THE INVESTORS REFERRED TO HEREIN
EXHIBIT
10.2
dated as
of March 13, 2008
by and
among
URSTADT
▇▇▇▇▇▇ PROPERTIES INC.
and
THE
INVESTORS REFERRED TO HEREIN
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated as
of March 13, 2008, is made by and among Urstadt ▇▇▇▇▇▇ Properties Inc., a
Maryland corporation (the “Company”), and the
Persons named on Schedule 1 as
Investors (each a “Investor” and
collectively, the “Investors”).
RECITALS
WHEREAS,
pursuant to that certain Investment Agreement dated as of March 13, 2008, by and
between WFC Holdings Corporation (“▇▇▇▇▇ Fargo”) and the
Company (the “Investment
Agreement”), the Company issued and the Investors purchased
2,400,000 shares of 8.50% Series E Senior Cumulative Preferred Stock (the
“Series E Preferred
Stock”) of the Company; and
WHEREAS,
in connection therewith, the parties hereto desire to set forth the Investors’
rights and the Company’s obligation to cause the registration of the Series E
Preferred Stock pursuant to the Securities Act.
NOW,
THEREFORE, in consideration of the Investment Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions and
Usage. As used in this Agreement the following terms shall
have the corresponding meanings:
1.1 Definitions.
“Commission” shall
mean the Securities and Exchange Commission.
“Continuously
Effective”, with respect to a specified registration statement, shall
mean that it shall not cease to be effective and available for Transfers of
Registrable Securities thereunder for longer than either (i) any thirty
(30) calendar days, or (ii) an aggregate of sixty (60) calendar days during
the two-year period specified in Section
2.1(c).
“Demand Registration”
shall have the meaning set forth in Section 2.1.
“Exchange Act” shall
mean the Securities Exchange Act of 1934.
“Initiating Investor”
shall have the meaning set forth in Section 2.1.
“Investment Agreement”
shall have the meaning set forth in the Recitals.
“Investors” shall mean
the Persons named on Schedule 1 as
Investors and Transferees of such Persons’ Registrable Securities with respect
to the rights that such Transferees shall have acquired in accordance with Section 8, at
such times as such Persons shall own Registrable Securities.
“Majority Selling
Investors” means those Selling Investors whose Registrable Securities
included in a registration represent a majority of the Registrable Securities of
all Selling Investors included therein.
“Person” shall mean
any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or government or other agency or political subdivision
thereof.
“Register”, “registered”, and
“registration”
shall refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering by the Commission of effectiveness of such registration
statement or document.
“Registrable
Securities” shall mean, subject to Section 6.4: (i) the
2,400,000 shares of Series E Preferred Stock issued by the Company pursuant to
the Investment Agreement; and (ii) any security issued in exchange for or
otherwise in replacement of Series E Preferred Stock described in
clause (i) above; provided, however, that
Registrable Securities shall not include any securities (x) which have
theretofore been registered and sold pursuant to a transaction registered under
the Securities Act, (y) which have been sold to the public pursuant to Rule 144
or any similar rule promulgated by the Commission pursuant to the Securities
Act, or (z) which may be transferred pursuant to Rule 144 without the
requirement of a volume limitation, the current public information requirement
thereof or the manner of sale requirement thereof.
“Registrable Securities then
outstanding” shall mean, with respect to a specified determination date,
the Registrable Securities owned by all Investors on such date.
“Registration
Expenses” shall have the meaning set forth in Section 4.1.
“Securities Act” shall
mean the Securities Act of 1933, as amended.
“Selling Investors”
shall mean, with respect to a specified registration pursuant to this Agreement,
Investors whose Registrable Securities are included in such
registration.
“Series E Preferred
Stock” shall have the meaning set forth in the Recitals.
“Transfer” shall mean
and include the act of selling, giving, transferring, creating a trust (voting
or otherwise), assigning or otherwise disposing of (other than pledging,
hypothecating or otherwise transferring as security) (and correlative words
shall have correlative meanings); provided however, that any
transfer or other disposition upon foreclosure or other exercise of remedies of
a secured creditor after an event of default under or with respect to a pledge,
hypothecation or other transfer as security shall constitute a
“Transfer”.
“Violation” shall have
the meaning set forth in Section 5.1.
1.2 Usage.
(a) References
to a Person are also references to its assigns and successors in interest (by
means of merger, consolidation or sale of all or substantially all the assets of
such Person or otherwise, as the case may be).
(b) References
to Registrable Securities “owned” by an Investor shall include Registrable
Securities beneficially owned by such Person but which are held of record in the
name of a nominee, trustee, custodian, or other agent, but shall exclude the
Series E Preferred Stock held by a Investor in a fiduciary capacity for
customers of such Person.
(c) References
to a document are to it as amended, waived and otherwise modified from time to
time and references to a statute or other governmental rule are to it as amended
and otherwise modified from time to time (and references to any provision
thereof shall include references to any successor provision).
(d) References
to Sections or to Schedules or Exhibits are to sections hereof or schedules or
exhibits hereto, unless the context otherwise requires.
(e) The
definitions set forth herein are equally applicable both to the singular and
plural forms and the feminine, masculine and neuter forms of the terms
defined.
(f) The term
“including” and correlative terms shall be deemed to be followed by “without
limitation” whether or not followed by such words or words of like
import.
(g) The term
“hereof” and similar terms refer to this Agreement as a whole.
(h) The “date
of” any notice or request given pursuant to this Agreement shall be determined
in accordance with Section 10.2.
2. Demand
Registration.
2.1 If the
Company shall receive on or after the date that is nine (9) months following the
date hereof a written request from the holders of a majority of the Registrable
Securities then outstanding (“Initiating
Investors”) that the Company file a registration statement under the
Securities Act for an offering of the Registrable Securities on a continuous
basis pursuant to Rule 415 under the Securities Act (a “Demand
Registration”), covering the registration of Registrable Securities with
an aggregate offering price, net of any placement agent fees, broker’s fees, and
commissions on similar discounts, fees or commissions, of at least $5 million,
then the Company shall, within ten (10) days of the receipt thereof, give
written notice of such request to all holders of the Registrable Securities and
shall, subject to the limitation of this Section 2.1, use its
reasonable best efforts to effect as soon as practicable, and in any event
within ninety (90) days of the receipt of such request, the registration under
the Securities Act of all Registrable Securities which the holders request to be
registered within twenty (20) days of the mailing of such notice by the
Company. Any request made pursuant to this Section 2.1
shall be addressed
to the
attention of the Secretary of the Company and shall specify the number of
Registrable Securities to be registered, the intended methods of disposition
thereof which shall not include any underwritten, agency or similar method and
that the request is for a Demand Registration pursuant to this Section 2.1. In
connection with the Demand Registration, the Company shall:
(a) Be
entitled to postpone for up to ninety (90) days from the date of request of
the Initiating Investor the filing of any Demand Registration statement
otherwise required to be prepared and filed pursuant to Section 2.1, if
the board of directors of the Company determines, in its good faith reasonable
judgment, that such registration and the Transfer or Registrable Securities
contemplated thereby would materially interfere with, or require premature
disclosure of, any financing, acquisition or reorganization involving the
Company or any of its wholly owned subsidiaries and the Company promptly gives
the Initiating Investors notice of such determination;
(b) Use its
reasonable best efforts to have the registration declared effective under the
Securities Act as soon as reasonably practicable, and in any event within ninety
(90) days of the receipt of the request for the registration, giving due regard
to the need to prepare current financial statements, conduct due diligence and
complete other actions that are reasonably necessary to effect a registered
public offering;
(c) Use its
reasonable best efforts to keep the relevant registration statement Continuously
Effective for the lesser of two (2) years or until such time as all holders who
included Registrable Securities in the Registration Statement no longer hold any
Registrable Securities (the “Registration
Period”). Notwithstanding the foregoing, if for any reason the
effectiveness of a registration pursuant to this Section 2 is
suspended or postponed, the foregoing period shall be extended by the aggregate
number of days of such suspension or postponement; and
(d) Be
obligated to effect no more than one (1) Demand Registration. For
purposes of the preceding sentence, registration shall not be deemed to have
been effected (i) unless a registration statement with respect thereto has
become effective, or (ii) if after such registration statement has become
effective, such registration or the related offer, sale or distribution of
Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to the Selling Investors and
such interference is not thereafter eliminated.
2.2 A
registration pursuant to this Section 2 shall
be on such appropriate registration form of the Commission as shall (i) be
selected by the Company and be reasonably acceptable to the Majority Selling
Investors and (ii) permit the disposition of the Registrable Securities in
accordance with the intended method of disposition specified in Section 2.1.
2.3 The
Company shall furnish to one firm of counsel for the Selling Investors (selected
by Majority Selling Investors) copies of the filed registration statement or
prospectus or any amendments or supplements thereto in the form substantially as
proposed to be filed with the Commission at least five (5) business days prior
to filing for review and comment by such counsel, which opportunity to comment
shall include the right to contest disclosure if the
applicable
Selling Investor reasonably believes that such disclosure contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
2.4 The
Company shall prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act and rules thereunder with respect to the
disposition of all securities covered by such registration
statement. The Company shall amend the registration statement or
supplement the prospectus so that it will remain current and in compliance with
the requirements of the Securities Act for the Registration Period, and if
during such period any event or development occurs as a result of which the
registration statement or prospectus contains a misstatement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, the Company shall promptly notify
each Selling Investor, amend the registration statement or supplement the
prospectus so that each will thereafter comply with the Securities Act and
furnish to each Selling Investor of Registrable Securities such amended or
supplemented prospectus, which each such Investor shall thereafter use in the
Transfer of Registrable Securities covered by such registration
statement. Pending such amendment or supplement each such Investor
shall cease making offers or Transfers of Registrable Securities pursuant to the
prior prospectus. In the event that any Registrable Securities
included in a registration statement subject to, or required by, this Agreement
remain unsold at the end of the period during which the Company is obligated to
use its reasonable best efforts to maintain the effectiveness of such
registration statement, the Company may file a post-effective amendment to the
registration statement for the purpose of removing such Securities from
registered status.
2.5 The
Company shall furnish to each Selling Investor of Registrable Securities,
without charge, such numbers of copies of the registration statement, any
pre-effective or post-effective amendment thereto, the prospectus, including
each preliminary prospectus and any amendments or supplements thereto, in each
case in conformity with the requirements of the Securities Act and the rules
thereunder, and such other related documents as any such Selling Investor may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by such Selling Investor.
2.6 The
Company shall use its reasonable best efforts (i) to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such states or jurisdictions as shall be
reasonably requested by the Majority Selling Investors, and (ii) to obtain
the withdrawal of any order suspending the effectiveness of a registration
statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of the offer and transfer of any of the Registrable
Securities in any jurisdiction, at the earliest possible moment; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business, subject itself to taxation in any such states or
jurisdictions or to file a general consent to service of process in any such
states or jurisdictions.
2.7 The
Company shall promptly notify each Selling Investor of any stop order issued or
threatened to be issued by the Commission in connection therewith (and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered).
2.8 The
Company shall make generally available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act
no later than ninety (90) days after the end of the twelve (12)-month period
beginning with the first month of the Company’s first fiscal quarter commencing
after the effective date of each registration statement filed pursuant to this
Agreement.
2.9 The
Company shall make available for inspection by any Selling Investor and the
representatives of such Selling Investor (but not more than one firm of counsel
to such Selling Investors), all financial and other information as shall be
reasonably requested by them, and provide the Selling Investor and the
representatives of such Selling Investor the opportunity to discuss the business
affairs of the Company with its principal executives and independent public
accountants who have certified the audited financial statements included in such
registration statement, in each case, as shall be necessary to enable them to
exercise their due diligence responsibility under the Securities Act; provided, however, that
information that the Company determines, in good faith, to be confidential and
which the Company advises such Person in writing, is confidential shall not be
disclosed unless such Person signs a confidentiality agreement reasonably
satisfactory to the Company or the related Selling Investor of Registrable
Securities agrees to be responsible for such Person’s breach of confidentiality
on terms reasonably satisfactory to the Company.
2.10 The
Company shall provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration
statement.
2.11 The
Company shall use its reasonable best efforts to provide a CUSIP number for the
Registrable Securities prior to the earlier of the listing of such Registrable
Securities on the New York Stock Exchange or the effective date of the first
registration statement including Registrable Securities.
2.12 The
Company shall take such other actions as are reasonably required in order to
expedite or facilitate the disposition of Registrable Securities included in the
Demand Registration.
3. Investors’
Obligations. It shall be a condition precedent to the
obligations of the Company to take any action with respect to the registration
of the Registrable Securities pursuant to this Agreement of any Selling Investor
that such Selling Investor shall furnish on a timely basis to the Company such
information regarding such Selling Investor, the number of the Registrable
Securities owned by it, and the intended method of disposition of such
securities as may be reasonably requested by the Company from time to time to
effect the registration of the Registrable Securities, and cooperate with the
Company in preparing such registration.
4. Expenses of
Registration. Expenses in connection with registrations
pursuant to this Agreement shall be allocated and paid as follows:
4.1 The
Company shall bear and pay all expenses incurred in connection with the Demand
Registration for each Selling Investor, including all registration, filing and
Financial Industry Regulatory Authority fees, all fees and expenses of complying
with securities or blue sky laws, all out-of-pocket word processing, duplicating
and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company, and of the Company’s independent
public accountants, and the reasonable fees and disbursements of one firm of
counsel for the Selling Investors of Registrable Securities (selected by the
Majority Selling Investors) in connection with a proposed filing pursuant to
Section 2.1
(the “Registration
Expenses”), but excluding any placement agent fees, broker’s fees and
commissions on similar discounts, fees or commissions relating to Registrable
Securities (which shall be paid by the Selling Investors).
4.2 Any
failure of the Company to pay any Registration Expenses as required by this
Section 4
shall not relieve the Company of its obligations under this
Agreement.
5. Indemnification;
Contribution. If any Registrable Securities are included in a
registration statement under this Agreement:
5.1 To the
extent permitted by applicable law, the Company shall indemnify and hold
harmless each Selling Investor, each Person, if any, who controls such Selling
Investor within the meaning of the Securities Act, and each officer, director,
manager, partner, and employee of such Selling Investor and such controlling
Person, against any and all losses, claims, damages, liabilities and reasonable
expenses (joint or several), including attorneys’ fees and disbursements and
expenses of investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may become subject under the Securities Act, the Exchange Act
or other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any of the following
statements, omissions or violations (collectively a “Violation”):
(a) Any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein, or any amendments or supplements
thereto;
(b) The
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading;
or
(c) Any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any applicable state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any applicable state
securities law;
provided, however, that the
indemnification required by this Section 5.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such
settlement
is effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability or expense to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished to the Company by the indemnified party
expressly for use in connection with such registration.
5.2 To the
extent permitted by applicable law, each Selling Investor shall indemnify and
hold harmless the Company, each of its directors and each of its officers and
each Person, if any, who controls the Company within the meaning of the
Securities Act, any other Selling Investor, any controlling Person of any such
other Selling Investor and each officer, director, partner, and employee of such
other Selling Investor and such controlling Person, against any and all losses,
claims, damages, liabilities and expenses (joint and several), including
attorneys’ fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may otherwise become
subject under the Securities Act, the Exchange Act or other federal or state
laws, insofar as such losses, claims, damages, liabilities and expenses arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Selling Investor expressly for use in
connection with such registration; provided, however, that
(x) the indemnification required by this Section 5.2
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if settlement is effected without the consent of the
relevant Selling Investor of Registrable Securities, which consent shall not be
unreasonably withheld, and (y) in no event shall the amount of any
indemnity under this Section 5.2
exceed the gross proceeds from the applicable offering received by such Selling
Investor.
5.3 Promptly
after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this Section 5, such
indemnified party shall deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties. The
failure to deliver written notice to the indemnifying party within a reasonable
time following the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 5 but
shall not relieve the indemnifying party of any liability that it may have to
any indemnified party otherwise than pursuant to this Section 5. Any
fees and expenses incurred by the indemnified party (including any fees and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the indemnified party, as incurred,
within thirty (30) days of written notice thereof to the indemnifying party
(regardless of whether it is ultimately determined that an indemnified party is
not entitled to indemnification hereunder). Any such indemnified
party shall have the right to employ separate counsel in any such action, claim
or proceeding and to participate in the defense thereof, and the fees and
expenses of such counsel shall be the expenses of the indemnifying party if
(i) the indemnifying party has agreed to pay such fees and expenses or
(ii) the indemnifying party shall have failed to promptly
assume
the
defense of such action, claim or proceeding or (iii) representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding (in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action, claim or proceeding on behalf of such indemnified
party, it being understood, however, that the indemnifying party shall not, in
connection with any one such action, claim or proceeding or separate but
substantially similar or related actions, claims or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (together with appropriate local counsel) at any time for all such
indemnified parties, unless in the reasonable judgment of such indemnified party
a conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such action, claim or proceeding, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels). No indemnifying
party shall be liable to an indemnified party for any settlement of any action,
proceeding or claim without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld.
5.4 If the
indemnification required by this Section 5 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to in
this Section 5:
(a) The
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying
party and indemnified parties shall be determined by reference to, among other
things, whether any Violation has been committed by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such Violation. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in Section 5.1 and
Section 5.2, any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
(b) The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5.4 were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in Section 5.4(a). 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.
5.5 If
indemnification is available under this Section 5, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 5
without regard to
the
relative fault of such indemnifying party or indemnified party or any other
equitable consideration referred to in Section 5.4.
5.6 The
obligations of the Company and the Selling Investors of Registrable Securities
under this Section 5 shall
survive the completion of any offering of Registrable Securities pursuant to a
registration statement under this Agreement, and otherwise.
6. Covenants of the
Company. The Company hereby agrees and covenants as
follows:
6.1 If the
Company shall receive at any time after six (6) months from the date of this
Agreement, a written request from the holders of a majority of the Registrable
Securities then outstanding, the Company shall use its reasonable best efforts
to cause all of the Series E Preferred Stock to be listed on the New York Stock
Exchange as soon as practicable and in any event within thirty (30) days
following the date of such request, with such listing to be maintained
continuously for the shorter of (i) a period of ten (10) years or (ii) until
such time as all shares of the Series E Preferred Stock have been redeemed by
the Company in accordance with Sections 11.7 or 11.8 of the Articles
Supplementary.
6.2 The
Company shall file as and when applicable, on a timely basis, all reports
required to be filed by it under the Exchange Act. If the Company is
not required to file reports pursuant to the Exchange Act, upon the request of
any Investor of Registrable Securities, the Company shall make publicly
available the information specified in subparagraph (c)(2) of Rule 144 of
the Securities Act, and take such further action as may be reasonably required
from time to time and as may be within the reasonable control of the Company, to
enable the Investors to Transfer Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 under the Securities Act or any similar rule or regulation
hereafter adopted by the Commission.
6.3 For so
long as an Investor owns any shares of the Series E Preferred Stock not subject
to an effective Registration Statement, the Company shall, upon its receipt of
written request therefor, deliver to Investor a certificate of the Company’s
chief executive officer or its chief financial officer stating that the Company
has filed all reports required under the Exchange Act during the preceding
twelve (12) months (other than Form 8-K reports) and has been subject to such
filing requirements for at least the preceding 90 days.
6.4 Unless
the Company shall validly and legally exercise its right under Section 11.8(b)
of the Articles Supplementary to redeem all outstanding shares of Series E
Preferred Stock that are then Registrable Securities, the Company shall not,
directly or indirectly, (x) enter into any merger, consolidation or
reorganization in which the Company shall not be the surviving corporation or
(y) Transfer or agree to Transfer all or substantially all the Company’s
assets, unless prior to such merger, consolidation, reorganization or asset
Transfer, the surviving corporation or the Transferee, respectively, shall have
agreed in writing to assume the obligations of the Company under this Agreement,
and for that purpose references hereunder to “Registrable Securities” shall be
deemed to include the securities which the Investors of
Registrable
Securities would be entitled to receive in exchange for Registrable Securities
pursuant to any such merger, consolidation or reorganization.
6.5 The
Company shall not grant to any Person (other than a Investor of Registrable
Securities) any registration rights with respect to securities of the Company,
or enter into any agreement, that would entitle the holder thereof to have
securities owned by it included in the Demand Registration.
7. Amendment, Modification and
Waivers; Further Assurances.
7.1 Any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investors
owning Registrable Securities possessing a majority in number of the Registrable
Securities outstanding at the time of the amendment or waiver. Any
amendment or waiver effected in accordance with this Section 7.1 shall be
binding upon each Investor and the Company. No waiver of any terms or
conditions of this Agreement shall operate as a waiver of any other breach of
such terms and conditions or 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. No written waiver hereunder, unless it by its
own terms explicitly provides to the contrary, shall be construed to effect a
continuing waiver of the provisions being waived and no such waiver in any
instance shall constitute a waiver in any other instance or for any other
purpose or impair the right of the party against whom such waiver is claimed in
all other instances or for all other purposes to require full compliance with
such provision.
7.2 Each of
the parties hereto shall execute all such further instruments and documents and
take all such further action as any other party hereto may reasonably require in
order to effectuate the terms and purposes of this Agreement.
8. Transfer of Investor
Rights. All rights of an Investor pursuant to this Agreement
may be Transferred by such Investor to any Person in connection with the
Transfer of Registrable Securities to such Person, in all cases, if (i) any
such Transferee that is not a party to this Agreement shall have executed and
delivered to the Secretary of the Company a properly completed agreement
substantially in the form of Exhibit A, and
(ii) the Transferor shall have delivered to the Secretary of the Company,
no later than fifteen (15) days following the date of the Transfer, written
notification of such Transfer setting forth the name of the Transferor, name and
address of the Transferee, and the number of Registrable Securities which shall
have been so Transferred.
9. Assignment;
Benefit. This Agreement and all of the provisions hereof shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, assigns, executors, administrators or successors; provided, however, that except
as specifically provided herein with respect to certain matters, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned or delegated by the Company without the prior written consent of
Investors owning Registrable Securities possessing a majority in number of the
Registrable Securities outstanding on the date as of which such delegation or
assignment is
to become
effective. A Investor may Transfer its rights hereunder to a
successor in interest to the Registrable Securities owned by such assignor only
as permitted by Section 8.
10. Miscellaneous.
10.1 Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF, WITH THE EXCEPTION OF SECTION 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK.
10.2 Notices. All
notices and requests given pursuant to this Agreement shall be in writing and
shall be made by hand-delivery, first-class mail (registered or certified,
return receipt requested), confirmed facsimile or overnight air courier
guaranteeing next business day delivery to the relevant address specified on
Schedule 2
to this Agreement or in the relevant agreement in the form of Exhibit A
whereby such party became bound by the provisions of this Agreement; provided
that any notice given by facsimile shall also be given by overnight courier
guaranteeing next business day delivery. Except as otherwise provided
in this Agreement, the date of each such notice and request shall be deemed to
be, and the date on which each such notice and request shall be deemed given
shall be: at the time delivered, if personally delivered or mailed;
when receipt is acknowledged, if sent by facsimile; and the next business day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next business day delivery.
10.3 Entire Agreement;
Integration. This Agreement supersedes all prior agreements
between or among any of the parties hereto with respect to the subject matter
contained herein and therein, and such agreements embody the entire
understanding among the parties relating to such subject matter.
10.4 Injunctive
Relief. Each of the parties hereto acknowledges that in the
event of a breach by any of them of any material provision of this Agreement,
the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief,
the aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
10.5 Section
Headings. Section headings are for convenience of reference
only and shall not affect the meaning of any provision of this
Agreement.
10.6 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, and all of which shall together constitute one and the same
instrument. All signatures need not be on the same
counterpart.
10.7 Facsimile
Signatures. Any signature page delivered pursuant to this
Agreement via facsimile shall be binding to the same extent as an original
signature. Any party who delivers such a signature page agrees to
later deliver an original counterpart to any party that requests
it.
10.8 Severability. If
any provision of this Agreement shall be invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity and enforceability
of the remaining provisions of this Agreement, unless the result thereof would
be unreasonable, in which case the parties hereto shall negotiate in good faith
as to appropriate amendments hereto.
10.9 Filing. A
copy of this Agreement and of all amendments thereto shall be filed at the
principal executive office of the Company with the corporate recorder of the
Company.
10.10 Termination. This
Agreement may be terminated at any time by a written instrument signed by the
parties hereto. Unless sooner terminated in accordance with the
preceding sentence, this Agreement (other than Section 5
hereof) shall terminate in its entirety on such date as there shall be no
Registrable Securities outstanding, provided that any
Series E Preferred Stock previously subject to this Agreement shall not be
Registrable Securities following the sale of any such shares in an offering
registered pursuant to this Agreement.
10.11 Attorneys’
Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys’ fees (including any fees incurred in any appeal) in addition to its
costs and expenses and any other available remedy.
10.12 No Third Party
Beneficiaries. Nothing herein expressed or implied is intended
to confer upon any Person, other than the parties hereto or their respective
permitted assigns, successors, heirs and legal representatives, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
[Signature
Page Follows]
IN WITNESS WHEREOF, this
Agreement has been duly executed by the parties hereto as of the date first
written above.
URSTADT
▇▇▇▇▇▇ PROPERTIES INC.
By: /s/ Willing ▇.
▇▇▇▇▇▇
Name:
Willing ▇. ▇▇▇▇▇▇
Title:
President
INVESTORS:
WFC
HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇
Title: Executive
Vice President
Signature
Page to
Urstadt
Registration Rights Agreement
SCHEDULE
1
INVESTORS
WFC
Holdings Corporation
Schedule
1 to
Urstadt
Registration Rights Agreement
SCHEDULE
2
NOTICE
ADDRESSES
▇▇▇▇▇
Fargo & Company
Securities
Investment Group
MAC
A0112-144
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, CFA
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
With
copies to:
Sidley
Austin LLP
▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Urstadt
▇▇▇▇▇▇ Properties Inc.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief
Financial Officer
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
With a
copy to:
Urstadt
▇▇▇▇▇▇ Properties Inc.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal
Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a
copy to:
▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Schedule
2 to
Urstadt
Registration Rights Agreement
EXHIBIT
A
to
Registration
Rights
Agreement
AGREEMENT
TO BE BOUND
The
undersigned, being the transferee of ______ 8.50% Series E Senior Cumulative
Preferred Stock [or describe other capital stock received in exchange for such
preferred stock] (the “Registrable
Securities”), of Urstadt ▇▇▇▇▇▇ Properties Inc., a Maryland corporation
(the “Company”), as a
condition to the receipt of such Registrable Securities, acknowledges that
matters pertaining to the registration of such Registrable Securities is
governed by the Registration Rights Agreement dated as of March 13, 2008
initially among the Company and the Investors referred to therein (the “Agreement”), and the
undersigned hereby (1) acknowledges receipt of a copy of the Agreement, and
(2) agrees to be bound as a Investor by the terms of the Agreement, as the
same has been or may be amended from time to time.
Agreed to
this __ day of ______________, ____________.
_________________________________
_________________________________*
_________________________________*
*Include
address for notices.
A-1
Urstadt
Registration Rights Agreement