Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
April 5,2006 by and among Kimco Realty Corporation, a Maryland corporation (the
"Company"), and the persons listed on Exhibit A (each, a Holder and
collectively, the "Holders"), which contemporaneously herewith are to become
members of Kimco Pergament, LLC, a Delaware limited liability company (the
"LLC").
WHEREAS, the Holders are to receive contemporaneously herewith Class B
Units of limited liability company interests in the LLC ("Units"), issued
without registration under the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the contribution to the LLC of direct or
indirect interests in real property pursuant to that certain Agreement to
Contribute and Form Limited Liability Company among Centereach Associates, LLC,
Bay Shore Associates, LLC, Kimco Pergament, Inc., as assignee of KRC Acquisition
Corp., and the Company, dated as of December 9, 2005 (the "Contribution
Agreement");
WHEREAS, pursuant to the Limited Liability Company Agreement of the LLC
(the "Limited Liability Company Agreement") such Units may, after the first
anniversary of the Effective Date with (the "Lock-Up Expiration Date"), be
tendered by the Holder thereof for redemption by the LLC for cash or, at the
Company's election, shares of the Company's common stock, par value $.01 per
share ("Common Stock"); and
WHEREAS, it is a condition precedent to the closing of the Contribution
Agreement that the Company provide the Holders with the registration rights set
forth in Section 2 hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Effective Date" shall mean April 5, 2006.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NYSE" shall mean the New York Stock Exchange.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust, or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration Statement
at the time the Registration Statement was declared effective by the SEC, as
subsequently amended or supplemented by any prospectus supplement relating to
the terms of the offering of any portion
of the Registrable Shares covered by such Registration Statement, and in each
case including all material incorporated by reference therein.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for which
a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement (including, without limitation, Shares issued to the
Holders in exchange for Units pursuant to an effective original issuance
Registration Statement), (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible (or which would be eligible in the
absence of the Holder's ownership of Common Stock other than Registrable Shares)
for sale pursuant to Rule 144(k) under the Securities Act. For clarification, it
is understood that once Shares have been issued to a Holder under an effective
Registration Statement, such Shares are no longer Registrable Shares no matter
who holds such Shares, and, accordingly, neither the Holder nor any subsequent
holder (whether or not such holder is an affiliate of the Company) of such
Shares has any further registration rights with respect to such Shares under
this Agreement.
"Registration Expenses" shall mean any and all expenses incurred by the
Company incident to the performance of or compliance with this Agreement,
including, without limitation: (i) all SEC, stock exchange or NASD registration
and filing fees; (ii) all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws and the rules of the NYSE or
the NASD; (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement; (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Shares on any securities exchange or exchanges pursuant to Section 2(e) hereof;
and (v) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance and compliance. Registration Expenses shall specifically exclude
underwriting discounts and commissions relating to the sale or disposition of
Registrable Shares by a selling Holder, the fees and disbursements of counsel
representing a selling Holder, fees and expenses of any underwriter engaged by a
selling Holder and transfer taxes, if any, relating to the sale or disposition
of Registrable Shares by a selling Holder, all of which shall be borne by such
Holder in all cases.
"Registration Statement" shall mean any registration statement of the
Company pursuant to the requirements of the Securities Act which covers any of
the Registrable Shares on an appropriate form, and all amendments and
supplements to such registration statement, including post-effective amendments
and supplements, in each case including the Prospectus contained therein, all
exhibits thereto and all materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" shall mean the shares of Common Stock issued or to be issued to
the Holder(s) upon redemption or in exchange for its or their Units, as
appropriately adjusted on account of any stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization.
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2. Registration.
(a) Filing of Issuance Registration Statement. Subject to the
provisions of Section 2(b) below, the Company will file with the SEC a
Registration Statement on Form S-3 (the "Initial Issuance Registration
Statement") under Rule 415 under the Securities Act, relating to the issuance to
the Holders of Shares in exchange for the Units acquired pursuant to the
Contribution Agreement, such filing to be made on a date (the "Filing Date")
which is no earlier than two weeks before the Lock-Up Expiration Date and no
later than two weeks after the LockUp Expiration Date; provided, however, that,
notwithstanding the foregoing, the Filing Date may be such other date as may be
required under applicable provisions of the Securities Act or as may be required
by the SEC pursuant to its interpretation of applicable federal securities laws
and the rules and regulations promulgated thereunder. Unless a Successor
Issuance Registration Statement is an "automatic shelf registration statement"
as defined in Rule 405 under the Securities Act, the Company shall use its
reasonable efforts to cause the Initial Issuance Registration Statement to be
declared effective by the SEC for all of the Registrable Shares covered thereby
within ninety (90) days after the Filing Date. In the event that the Company is
unable to cause the Initial Issuance Registration Statement to be declared
effective by the SEC within ninety (90) days following the Filing Date, then the
provisions of Section 2(b) shall apply. Notwithstanding the availability of
rights under Section 2(b), the Company shall continue to use its reasonable
efforts to cause such Initial Issuance Registration Statement to be declared
effective by the SEC until such time as the Company shall file and have declared
effective a Resale Shelf Registration Statement (as hereinafter defined) in
accordance with Section 2(b). In the event that the Initial Issuance
Registration Statement will cease to be effective pursuant to Rule 415(a)(5)
under the Securities Act prior to the Issuance Registration Expiration Date (as
defined below), then, immediately prior to the time such Initial Issuance
Registration Statement would cease to be effective, the Company will file with
the SEC a Registration Statement on Form S-3 under Rule 415 under the Securities
Act (a "Successor Issuance Registration Statement", and together with the
Initial Issuance Registration Statement, the "Issuance Registration
Statements"), relating to the issuance to the Holders of Shares covered by such
Initial Issuance Registration Statement. Additionally, in the event that any
Successor Issuance Registration Statement will cease to be effective pursuant to
Rule 415(a)(5) under the Securities Act prior to the Issuance Registration
Expiration Date, then, immediately prior to the time such Successor Issuance
Registration Statement would cease to be effective, the Company will file an
additional Successor Issuance Registration Statement relating to the issuance to
the Holders of Shares covered by such then effective Successor Issuance
Registration Statement. Unless a Successor Issuance Registration Statement is an
"automatic shelf registration statement" as defined in Rule 405 under the
Securities Act, the Company will use its reasonable efforts to cause such
Successor Issuance Registration Statement to be declared effective by the SEC
for all Registrable Securities covered thereby within one hundred eighty (180)
days of the third anniversary of the initial effective date of the Registration
Statement it is to succeed. In the event that the Company is unable to cause a
Successor Issuance Registration Statement to be declared effective by the SEC
within one hundred eighty (180) days of the third anniversary of the initial
effective date of the Registration Statement it is to succeed, then the
provisions of Section 2(b) shall apply. Notwithstanding the availability of
rights under Section 2(b), the Company shall continue to use its reasonable
efforts to cause such Successor Issuance
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Registration Statement to be declared effective by the SEC until such time as
the Company shall file and have declared effective a Resale Shelf Registration
Statement (as hereinafter defined) in accordance with Section 2(b). The Company
agrees to use its reasonable efforts to keep an Issuance Registration Statement
effective at all times until the date (the "Issuance Registration Expiration
Date") which is the earlier of (i) the date on which all Holders have tendered
their Units for redemption and the redemption price therefor (whether paid in
cash or in Common Shares) has been delivered to the Holders or (ii) the date on
which the Holders no longer hold any Units or Registrable Shares. The Company
shall use its reasonable efforts to cause each Issuance Registration Statement
to be an "automatic shelf registration statement" as defined in Rule 405 under
the Securities Act, to the extent that the Company is eligible to do so.
(b) Registration Statement Covering Resale of Common Shares. In the
event that, for any reason, the Company determines that it (i) is unable to
cause the Initial Issuance Registration Statement to be declared effective by
the SEC within ninety (90) days following the Filing Date, (ii) unable to cause
a Successor Issuance Registration Statement to be declared effective by the SEC
within one hundred eighty (180) days of the third anniversary of the initial
effective date of the Registration Statement it is to succeed, or (iii) (except
as otherwise permitted by Section 7) is unable or it is impracticable to keep an
Issuance Registration Statement relating to the issuance to the Holders of
Shares in exchange for the Units effective at all times after the Lock-Up
Expiration Date and until the Issuance Registration Expiration Date, the Company
shall file with the SEC a Registration Statement on Form S-3 (a "Resale Shelf
Registration Statement") under Rule 415 under the Securities Act relating to the
resale by the Holders of their Registrable Shares. The Company shall use its
reasonable efforts to cause such Resale Shelf Registration Statement to be
declared effective by the SEC as soon as practicable thereafter. The Company
agrees to use its reasonable efforts to keep the Resale Shelf Registration
Statement, after its date of effectiveness, continuously effective until the
date (the "Resale Shelf Registration Expiration Date") which is the earlier of
(x) the date on which all Registrable Shares have been disposed of by the
Holders or (y) the date on which all Registrable Shares are eligible for sale
pursuant to Rule 144(k) (or any successor provision). After the Company has
filed the Resale Shelf Registration Statement, any obligation of the Company to
file an Issuance Registration Statement pursuant to Section 2(a) above with
respect to the Registrable Shares registered by the Resale Shelf Registration
Statement shall be suspended for as long as the Resale Shelf Registration
Statement remains effective. The Company shall use its reasonable efforts to
cause each Resale Shelf Registration Statement to be an "automatic shelf
registration statement" as defined in Rule 405 under the Securities Act, to the
extent that the Company is eligible to do so.
(c) Right to Satisfy with Cash in Lieu of Shares. In the event that
(x) the Company fails for any reason to file or obtain the effectiveness of an
Issuance Registration Statement or the Resale Shelf Registration Statement or
(except as otherwise permitted by Sections 7(a), 7(b) and 8) does not keep any
such Issuance Registration Statement or Resale Shelf Registration Statement
effective until the Issuance Registration Statement Expiration Date or the
Resale Shelf Registration Statement Expiration Date, as applicable, and (y) the
Company satisfies a Holder's redemption right with respect to Units by causing
the redemption or exchange of such Units for cash as permitted under the Limited
Liability Company Agreement,
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then the Company shall not be deemed to have breached any of its obligations
under this Agreement with respect to such Holder.
(d) Notification and Distribution of Materials. The Company shall
notify each Holder of the effectiveness of any Registration Statement applicable
to the Shares of such Holder and, in the case of a Resale Shelf Registration
Statement, shall furnish to each such Holder the number of copies of such
Registration Statement and the Prospectus contained therein as such Holder may
reasonably request in order to facilitate its sale of the Registrable Shares in
the manner described in such Registration Statement.
(e) Amendments and Supplements; Exchange Listing Applications. The
Company shall prepare and file with the SEC from time to time such amendments
and supplements to any Registration Statement and Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all the Registrable Shares until the earlier of (i) such time as
all of the Registrable Shares have been issued or disposed of in accordance with
the intended methods of disposition by the Holders or issuance by the Company as
set forth in such Registration Statement or (ii) the date on which such
Registration Statement ceases to be effective in accordance with the terms of
this Section 2. Upon twenty (20) business days' notice, the Company shall file
any supplement or post-effective amendment to such Registration Statement or
Prospectus with respect to the plan of distribution or such Holder's ownership
interests in Registrable Shares that is reasonably necessary to permit the sale
of the Holder's Registrable Shares pursuant to the Registration Statement. The
Company shall file any necessary listing applications or amendments to the
existing applications to cause the Shares registered under the Registration
Statement to be then listed or quoted on the primary exchange or quotation
system on which the Common Stock is then listed or quoted.
(f) Notice of Certain Events. At any time when a Prospectus relating
to a Registration Statement is required to be delivered under the Securities Act
by a Holder to a transferee, the Company shall immediately notify each Holder of
the happening of any event as a result of which the Prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. In such event, the Company shall promptly
prepare and furnish to each applicable Holder a reasonable number of copies of
a supplement to or an amendment of such Prospectus as may be necessary so that,
as thereafter delivered to the purchasers of Registrable Shares sold under the
Prospectus, such Prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading. The Company will, if necessary, amend the Registration
Statement of which such Prospectus is a part to reflect such amendment or
supplement.
3. State Securities Laws. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Registration
Statement hereunder, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities
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or "Blue Sky" laws of such states as any Holder may reasonably request in
writing, and the Company shall use its reasonable efforts to cause such filings
to become effective; provided, however, that the Company shall not be obligated
to qualify as a foreign corporation to do business under the laws of any such
state in which it is not then qualified or to file any general consent to
service of process in any such state. Once effective, the Company shall use its
reasonable efforts to keep such filings effective until the earlier of (a) such
time as all of the Registrable Shares have been disposed of in accordance with
the intended methods of disposition by the Holder as set forth in the applicable
Registration Statement, (b) in the case of a particular state, a Holder has
notified the Company that it no longer requires an effective filing in such
state in accordance with its original request for filing or (c) the date on
which the applicable Registration Statement ceases to be effective in accordance
with Section 2. The Company shall promptly notify each Holder of, and confirm in
writing, the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Shares for sale under the
securities or "Blue Sky" laws of any jurisdiction or the initiation of any
threat of any proceeding for such purpose.
4. Expenses. Except as otherwise provided in this Section 4, the Company
shall bear all Registration Expenses incurred by the Company in connection with
the registration of the Registrable Shares pursuant to this Agreement. Each
Holder shall be responsible for any brokerage or underwriting fees, discounts or
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable Shares
sold by it, for any fees and expenses of any underwriter engaged by it, and for
any legal, accounting and other expenses incurred by it. In the event that the
Company (in its sole discretion and without any obligation to do so) amends a
Registration Statement in response to a request by a Holder for such amendment
for the purpose of (i) reflecting ownership of Units or Shares by a Person to
whom the Holder transferred such Units or Shares, or (ii) reflecting a change in
the plan of distribution or ownership interests with respect to a Holder's
Registrable Shares, then the Holder requesting such amendment shall bear all
fees, costs and expenses incurred by the Company or by such Holder in connection
therewith, including fees related to the delisting of Shares from any national
securities exchange or quotation system on which such Shares had been listed for
trading.
5. Indemnification by the Company.
(a) The Company agrees to indemnify each Holder and, if a Holder is a
person other than an individual, such Holder's respective officers, directors,
employees, agents, representatives and affiliates, and each person or entity, if
any, that controls such Holder within the meaning of the Securities Act (each an
"Indemnitee") against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including, without limitation, reasonable fees, expenses and
disbursements of attorneys documented in writing), joint or several, arising out
of or based upon any untrue or alleged untrue statement of material fact
contained in the Registration Statement or any Prospectus, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided that the Company shall not be
liable to such Indemnitee or any other person to the extent that any such loss,
claim,
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damage, liability (or action or proceeding in respect thereof), cost or expense
arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement,
any such Prospectus in reliance upon and in conformity with information which
was furnished to the Company for use in connection with the Registration
Statement or the Prospectus contained therein by or on behalf of a Holder or any
other Indemnitee or (ii) a Holder's failure to send or give a copy of the most
current Prospectus furnished to the Holders by the Company at or prior to the
time such action is required by the Securities Act to the person claiming an
untrue statement or alleged untrue statement or omission or alleged omission if
such statement or omission was corrected in such Prospectus.
(b) In the event the Company or any Holder receives a complaint, claim
or other notice of any loss, claim, damage, action or liability (collectively, a
"Liability") giving rise to a claim for indemnification under Section 5(a) above
or Section 6 below, the indemnified party shall promptly notify the person(s)
against whom indemnification is sought of such complaint, claim or other notice,
and the indemnifying party shall have the right to investigate and defend any
such loss, claim, damage, liability or action; provided, that the failure to
promptly give notice shall not relieve the indemnifying party from the
indemnification obligations hereunder except to the extent that such party is
materially prejudiced by the failure or delay of the indemnified party in giving
such notice. If any such complaint, claim or other notice of any Liability is
brought against any indemnified party and it notifies the indemnifying party of
its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified
party promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
shall not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel shall be at the
expense of the indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (ii)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties
different from or in addition to those available to the indemnifying party or
parties, (iii) a conflict or potential conflict exists (based on advice of
counsel to the indemnified party) between the indemnified party and 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)
or (iv) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action or has failed to employ counsel reasonably
satisfactory to such indemnified party, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. The indemnifying party or parties shall not,
unless there exists a conflict of interest among the indemnified parties, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such
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jurisdiction at any time for all such indemnified parties. All such fees,
disbursements and other charges shall be reimbursed by the indemnifying party
promptly as they are incurred. An indemnifying party shall not be liable for any
settlement of any action or claim effected without its written consent (which
consent will not be unreasonably withheld). No indemnifying party shall, without
the prior written consent of each affected indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this section
unless such settlement, compromise or consent includes an unconditional release
of each such indemnified party from all liability arising or that may arise out
of such claim, action or proceeding. If a settlement is reached with such
consent or if a final judgment is entered for the plaintiff, the indemnifying
party agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
6. Covenants of Holder(s). Each Holder hereby agrees (a) to cooperate with
the Company and to promptly furnish to the Company all such information
concerning its plan of distribution and its ownership interests with respect to
its Registrable Shares, and all such other information required to be furnished
by the Securities Act in connection with the preparation of a Registration
Statement with respect to such Holder's Registrable Shares and any filings with
any state securities commissions as the Company may reasonably request, (b) to
deliver or cause delivery of the Prospectus contained in such Registration
Statement (other than an Issuance Registration Statement) to any purchaser of
the shares covered by such Registration Statement from the Holder and (c) to
indemnify the Company, its officers, directors, employees, agents,
representatives and affiliates, and each person, if any, who controls the
Company within the meaning of the Securities Act and each other person or
entity, if any, subject to liability because of his, her or its connection with
the Company against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including, without limitation, reasonable fees, expenses and
disbursements of attorneys documented in writing) arising out of or based upon
(i) any untrue statement or alleged untrue statement of material fact contained
in either such Registration Statement or the Prospectus contained therein, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if and to the extent
that such statement or omission occurs from reliance upon and in conformity with
information regarding a Holder, its plan of distribution or its ownership
interests, which was furnished to the Company by or on behalf of a Holder for
use therein unless such statement or omission was corrected in a writing
delivered to the Company not less than five (5) business days prior to the date
of the final Prospectus or (ii) the failure by a Holder or any underwriter,
broker, dealer or agent acting for on behalf of such Holder to deliver or cause
to be delivered the most current Prospectus furnished by the Company to the
Holder to any purchaser of the shares covered by such Registration Statement
from the Holder. In connection with the preparation of a Registration Statement
with respect to such Holders' Registrable Shares, the Company may distribute to
the Holders one or more questionnaires or other documents (each, a "Request for
Information") intended to solicit and/or update and/or confirm information with
respect to each Holder (including, without limitation, such Holder's plan of
distribution and then-current beneficial ownership of shares of Common Stock).
The parties hereto expressly agree that the failure by a Holder to respond to
any such Request for Information within the time period
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established therein by the Company (which may be no shorter than ten (10)
business days after sending such Request for Information) may, at the Company's
election, be deemed either (x) a representation and warranty from such Holder to
the Company that all information set forth in such Request for Information (1)
is true, correct and complete in all material respects and (2) may be relied
upon by the Company in preparing such Registration Statement with the same
effect under this Agreement as if such information were provided directly by the
Holder to the Company, or (y) a waiver of any obligation of the Company
hereunder to include such Holder's Registrable Shares in such Registration
Statement.
7. Suspension of Registration Requirement.
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement with respect to such Holder's Registrable Shares or
the initiation of any proceedings for that purpose. The Company shall use its
best efforts to obtain the withdrawal of any order suspending the effectiveness
of such a Registration Statement as soon as reasonably practicable.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a Registration Statement shall be suspended
in the event and during such period as circumstances exist (including, without
limitation, pending negotiations relating to, or consummation of, a transaction
or the occurrence of an event that would require additional disclosure of
material information by the Company in the Registration Statement or such
filing, as to which the Company has a bona fide business purpose for preserving
confidentiality or which renders the Company unable to comply with SEC
requirements) that would make it impractical or unadvisable to cause the
Registration Statement or such filings to become effective or to amend or
supplement the Registration Statement (such circumstances being hereinafter
referred to as a "Suspension Event"), but such suspension shall continue only
for so long as such event or its effect is continuing. The Company shall notify
each Holder of the existence of any Suspension Event.
8. Black-Out Period. Each Holder agrees that, following the effectiveness
of any Registration Statement (except an Issuance Registration Statement)
relating to Registrable Shares of such Holder, such Holder will not effect any
sales of the Registrable Shares pursuant to the Registration Statement or any
filings with any state securities commissions at any time after such Holder has
received notice from the Company to suspend sales as a result of the occurrence
or existence of any Suspension Event or so that the Company may correct or
update the Registration Statement or such filing. The Holder may recommence
effecting sales of the Shares pursuant to the Registration Statement or such
filings following further notice to such effect from the Company ("Advice").
Each Holder further agrees that, following the effectiveness of any Issuance
Registration Statement, as a result of the occurrence or existence of any
Suspension Event or so that the Company may correct or update the Registration
Statement or any filings with any state securities commissions and until
issuance of an Advice, (i) the Company may suspend during such period the
issuance of Common Stock pursuant to an Issuance Registration
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Statement (but any Common Stock not issued because of any such suspension must
be delivered promptly following issuance of the Advice), and (ii) neither the
LLC nor the Company shall be obligated during such period to redeem or exchange
Units for cash. Any Advice given pursuant to this Section 8 shall be given by
the Company promptly, but in any event not later than five (5) business days,
after the conclusion of a Suspension Event.
9. Additional Shares. The Company, at its option, may register, under any
Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of Common Stock
of the Company or any shares of Common Stock or other securities of the Company
owned by any other securityholder(s) of the Company.
10. Contribution. If the indemnification provided for in Sections 5 and 6
hereof is unavailable to an indemnified party with respect to any losses,
claims, damages, actions, liabilities, costs or expenses referred to therein or
is insufficient to hold the indemnified party harmless as contemplated therein,
then 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, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Indemnitee, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Indemnitee, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
party to contribute under this Section 10 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Section 5 or 6 hereof had been available
under the circumstances.
The Company and each of the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph.
Notwithstanding the provisions of this Section 10, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of Shares exceeds the amount of any damages that the
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
10
11. No Other Obligation to Register. Except as otherwise expressly provided
in this Agreement, the Company shall have no obligation to the Holders to
register the Registrable Shares under the Securities Act.
12. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified, supplemented or waived, in a manner adverse to a Holder who
has not agreed with respect thereto, without the prior written consent of the
Company and the Holders of in excess of fifty percent (50%) of the aggregate of
all outstanding Registrable Shares and Units that are convertible into
Registrable Shares (which, for the purpose of this Section 12, are to be counted
as if all such Units were converted into shares of Common Stock).
13. Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 2(e) or
Section 7, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Kimco Realty Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
New Hyde Park, New York 11042-0020
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to: Kimco Realty Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
New Hyde Park, New York 11042-0020
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
and to:
▇▇▇▇▇▇▇ Procter LLP
Exchange Place
Boston, MA 02109-2881
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to a Holder: at the address listed under such Holder's name
on the Holder's signature page
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
In addition to the manner of notice permitted above, notices given pursuant to
Sections 2, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
14. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, provided, however, that the Company shall not be obligated to
file or amend a Registration Statement for a permitted transferee of Units and,
if the Company does make such filing or amendment, may condition the same on
payment of expenses as contemplated by Section 4. This Agreement may not be
assigned by any Holder without the written consent of the Company, which may be
withheld in its sole discretion, and any attempted assignment hereof by any
Holder without such consent will be void and of no effect and shall terminate
all obligations of the Company hereunder, and the Holders shall indemnify the
Company and the LLC against any and all losses, claims, damages, actions,
liabilities, costs and expenses (including without limitation reasonable fees,
expenses and disbursements of attorneys and other professionals), arising out of
or based upon such attempted assignment.
15. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed wholly within said State.
17. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereof shall be enforceable to the fullest extent permitted by law.
18. Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be the complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
19. Additional Representations. Each Holder of Units agrees that upon
surrender of any such Units for redemption or exchange as provided in the
Limited Liability Company
12
Agreement and this Agreement, such Holder shall make such investment and other
representations in connection with (and as a condition to) the issuance of
Common Stock in exchange for such Units as the Company or the LLC may reasonably
request in order to comply with federal and state securities law.
[Remainder of page intentionally left blank]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
KIMCO REALTY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
[See Attached Signature Page(s) of Holder(s)]
[Signature Page to Registration Rights Agreement]
14
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
The undersigned, desiring to become a Holder under, and legally bound by,
that certain Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of April 5, 2006, by and among Kimco Realty Corporation
and certain members of KIMCO Pergament LLC, hereby becomes a party to the
Registration Rights Agreement. The undersigned agrees that this signature page
may be attached to any counterpart copy of the Registration Rights Agreement.
Holder: The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1999
Trust f/b/o Issue of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Trustee
Address: c/o Pryor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Federal Tax ID#: ▇▇-▇▇▇▇▇▇▇
Address for Notice:
c/o Pryor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
The Holder Represents that, as of this
day and without regard to Units owned by
the Holder, it has beneficial ownership
of (check one):
X No shares of Common Stock of Kimco
--- Realty Corporation
The following number of shares of
--- Common Stock of Kimco Realty
Corporation:
-----------------------------------
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
The undersigned, desiring to become a Holder under, and legally bound by,
that certain Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of April 5, 2006, by and among Kimco Realty Corporation
and certain members of KIMCO Pergament LLC, hereby becomes a party to the
Registration Rights Agreement. The undersigned agrees that this signature page
may be attached to any counterpart copy of the Registration Rights Agreement.
Holder: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Federal Tax ID#: ###-##-####
Address for Notice:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The Holder Represents that, as of this
day and without regard to Units owned by
the Holder, it has beneficial ownership
of (check one):
X No shares of Common Stock of Kimco
--- Realty Corporation
The following number of shares of
--- Common Stock of Kimco Realty
Corporation:
-----------------------------------
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
The undersigned, desiring to become a Holder under, and legally bound by,
that certain Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of April 5, 2006, by and among Kimco Realty Corporation
and certain members of KIMCO Pergament LLC, hereby becomes a party to the
Registration Rights Agreement. The undersigned agrees that this signature page
may be attached to any counterpart copy of the Registration Rights Agreement.
Holder: Centereach Associates, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Manager
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Federal Tax ID#: ▇▇▇▇▇▇▇▇▇
Address for Notice:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Holder Represents that, as of this
day and without regard to Units owned by
the Holder, it has beneficial ownership
of (check one):
X No shares of Common Stock of Kimco
--- Realty Corporation
The following number of shares of
--- Common Stock of Kimco Realty
Corporation:
-----------------------------------
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
The undersigned, desiring to become a Holder under, and legally bound by,
that certain Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of April 5, 2006, by and among Kimco Realty Corporation
and certain members of KIMCO Pergament LLC, hereby becomes a party to the
Registration Rights Agreement. The undersigned agrees that this signature page
may be attached to any counterpart copy of the Registration Rights Agreement.
Holder: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Address: ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Federal Tax ID#: ###-##-####
Address for Notice:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Holder Represents that, as of this
day and without regard to Units owned by
the Holder, it has beneficial ownership
of (check one):
X No shares of Common Stock of Kimco
--- Realty Corporation
The following number of shares of
--- Common Stock of Kimco Realty
Corporation:
-----------------------------------
EXHIBIT A
HOLDERS
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1999 Trust F/B/O the issue of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
16