EXHIBIT 10.9
REGISTRATION RIGHTS AGREEMENT
by and among
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PROPERTIES, INC.
and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III and the other parties named herein
dated as of
June 1, 1997
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TABLE OF CONTENTS
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Page
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Section 1. Definitions........................... 1
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(a) "Agreement"........................... 1
(b) "Commencement Date"................... 1
(c) "Company"............................. 1
(d) "Company Registration Expenses"....... 1
(e) "Commission".......................... 2
(f) "Demand Registration"................. 2
(g) "Exchange Act"........................ 2
(i) "Lazard".............................. 2
(j) "NASD"................................ 2
(l) "Registrable Securities".............. 2
(m) "Registration Expenses"............... 2
(n) "Registration Suspension Period"...... 3
(o) "Securities Act"...................... 3
(p) "Stockholders' Agreement"............. 3
(q) "Stock Purchase Agreement"............ 3
(r) "Suspension Notice"................... 3
(s) "Underwritten/Placed Offering"........ 3
Section 2. Demand Registration................... 3
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(a) Obligation to File.................... 3
(b) Black-Out Periods of the Haagen Family 4
(c) Number of Demand Registrations........ 5
(d) Notice................................ 5
(e) Expenses.............................. 5
(f) Selection of Underwriters............. 5
Section 3. Incidental Registrations.............. 5
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(a) Notification and Inclusion............ 5
(b) Cut-back Provisions................... 6
(c) Expenses.............................. 7
(d) Duration of Effectiveness............. 7
Section 4. Registration Procedures............... 7
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Section 5. Requested Underwritten Offerings...... 10
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Section 6. Preparation; Reasonable Investigation. 10
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Section 7. Indemnification....................... 11
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(a) Indemnification by the Company........ 11
(b) Indemnification by the Haagen Family.. 12
(c) Notices of Claims, etc. .............. 12
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Page
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(d) Other Indemnification................. 13
(e) Indemnification Payments.............. 13
(f) Contribution.......................... 13
Section 8. Covenants Relating to Rule 144........ 13
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Section 9. Miscellaneous......................... 14
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(a) Counterparts.......................... 14
(b) Governing Law......................... 14
(c) Entire Agreement...................... 14
(d) Notices............................... 14
(e) Successors and Assigns................ 15
(f) Headings.............................. 15
(g) Amendments and Waivers................ 16
(h) Interpretation; Absence of Presumption 16
(i) Severability.......................... 16
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REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of June 1,
1997, by and among ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties, Inc., a Maryland corporation
(the "Company") and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III, or
a controlled affiliate thereof (the "Haagen Family"). Capitalized terms not
otherwise defined herein have the meaning ascribed to them in the Stock Purchase
Agreement (as herein after defined).
WHEREAS, the Company and LF Strategic Realty Investors L.P. and
Prometheus Western Retail, LLC (collectively, "Lazard") have entered into a
Stock Purchase Agreement, dated as of June 1, 1997 (the "Stock Purchase
Agreement"), that provides for the purchase by Lazard and sale by the Company to
Lazard of shares of Company Common Stock; and
WHEREAS, the Company, Lazard and the Haagen Family have entered into
various agreements, including a voting agreement dated as of June 1, 1997 (the
"Voting Agreement"), that provides for the Haagen Family to vote in favor of the
Stock Purchase Agreement and the Stockholders' Agreement, dated as of June 1,
1997 (the "Stockholders' Agreement")
WHEREAS, in order to induce the Haagen Family to enter into the Voting
Agreement, the Company has agreed to provide the registration rights set forth
herein;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
Section 1. Definitions. As used herein, the following terms shall
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have the following meanings:
(a) "Agreement" shall have the meaning set forth in the first
paragraph hereof.
(b) "Commencement Date" shall mean the first anniversary of the date
of this Agreement.
(c) "Company" shall have the meaning set forth in the first paragraph
hereof.
(d) "Company Registration Expenses" shall mean the fees and
disbursements of counsel and independent public accountants for the Company
incurred in connection with the Company's performance of or compliance with
this Agreement, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, and any premiums and other costs of policies of insurance
obtained by the Company against liabilities arising out of the sale of any
securities.
(e) "Commission" shall mean the Securities and Exchange Commission,
and any successor thereto.
(f) "Demand Registration" shall have the meaning set forth in Section
2(a).
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor thereto, and the rules and regulations
thereunder.
(h) "Haagen Family" shall have the meaning set forth in the first
paragraph hereof.
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(i) "Lazard" shall have the meaning set forth in the second paragraph
hereof.
(j) "NASD" shall mean the National Association of Securities Dealers,
Inc.
(k) "OP Units" shall mean the units of limited partnership interest in
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties Operating Partnership, L.P., a California
limited partnership.
(l) "Registrable Securities" shall mean (i) any and all shares of
Company Common Stock held by the Haagen Family, (ii) any and all shares of
Company Common Stock issuable upon exchange of OP Units or upon exercise of
Company stock options , (iii) any and all securities acquired by the Haagen
Family pursuant to Section 1 of the Stockholders Agreement, and (iv) any
securities issued or issuable with respect to any Company Common Stock or
other securities referred to in clause (i) or (iii) by way of conversion,
exchange, stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization
or otherwise. As to any particular Registrable Securities, once issued
such securities shall cease to be Registrable Securities when (A) a
registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (B)
such securities shall have been sold in accordance with Rule 144 (or any
successor provision) under the Securities Act or (C) such securities are
eligible to be resold pursuant to Rule 144(k).
(m) "Registration Expenses" shall mean all registration, filing and
stock exchange or NASD fees, all fees and expenses of complying with
securities or blue sky laws, all printing expenses, messenger and delivery
expenses, any fees and disbursements of any separate counsel retained by
the Haagen Family, and transfer taxes, if any, and any premiums and other
costs of policies of insurance obtained by the Haagen Family against
liabilities arising out of the public offering of securities, including
Company Registration Expenses, but specifically excludes any fees and
disbursements of underwriters customarily paid by sellers of securities who
are not the issuers of such securities and all underwriting discounts and
commissions.
(n) "Registration Suspension Period" shall have the meaning set forth
in Section 2(b).
(o) "Securities Act" shall mean the Securities Act of 1933, as
amended, and any successor thereto, and the rules and regulations
thereunder.
(p) "Stockholders' Agreement" shall have the meaning set forth in the
third paragraph hereof.
(q) "Stock Purchase Agreement" shall have the meaning set forth in the
second paragraph hereof.
(r) "Suspension Notice" shall have the meaning set forth in Section
2(b).
(s) "Underwritten/Placed Offering" shall mean a sale of securities of
the Company to an underwriter or underwriters for reoffering to the public
or on behalf of a person other than the Company through an agent for sale
to the public.
Section 2. Demand Registration
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(a) Obligation to File. At any time following the Commencement Date,
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promptly upon the written request of the Haagen Family, the Company will
use its reasonable best efforts to file with the Commission a registration
statement under the Securities Act for the offering of all of the
Registrable Securities which the Haagen Family requests to be registered
(the "Demand Registration"). The Demand Registration shall be on an
appropriate form and the Demand Registration and any form of prospectus
included therein shall reflect such plan of distribution or method of sale
as the Haagen Family notifies the Company, including the sale of some or
all of the Registrable Securities in a public offering or, if requested by
the Haagen Family, subject to receipt by the Company of such information
(including information relating to purchasers) as the Company reasonably
may require, (i) in a transaction constituting an offering outside the
United States which is exempt from the registration requirements of the
Securities Act in which the seller undertakes to effect registration after
the completion of such offering in order to permit such shares to be freely
tradeable in the United States, (ii) in a transaction constituting a
private placement under Section 4(2) of the Securities Act in connection
with which the seller undertakes to effect a registration after the
conclusion of such placement to permit such shares to be freely tradeable
by the purchasers thereof, or (iii) in a transaction under Rule 144A of the
Securities Act in connection with which the seller undertakes to effect a
registration after the conclusion of such transaction to permit such shares
to be freely tradeable by the purchasers thereof. The Company shall use its
reasonable best efforts to cause the Demand Registration to become
effective, and, upon the request of the Haagen Family, keep the Demand
Registration effective for up to 90 days, unless the distribution of
securities registered thereunder has been earlier completed; provided,
however, that if such Demand Registration will require the Company to
prepare or file audited financial statements with respect to any fiscal
year by a date prior to the date on which the Company would otherwise be
required to prepare and file such audited financial statements, then the
Haagen Family must notify the Company at least thirty days in advance of
the date upon which such audited financial statements will be required to
be filed. During the period during which the Demand Registration is
effective, the Company shall supplement or make amendments to the Demand
Registration, if required by the Securities Act or if reasonably requested
by the Haagen Family or an underwriter of Registrable Securities, including
to reflect any specific plan of distribution or method of sale, and shall
use its reasonable best efforts to have such supplements and amendments
declared effective, if required, as soon as practicable after filing.
(b) Black-Out Periods of the Haagen Family. Notwithstanding anything
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herein to the contrary, (i) the Company shall have the right from time to
time to require the Haagen Family not to sell under the Demand Registration
or to suspend the effectiveness thereof during the period starting with the
date 30 days prior to the Company's good faith estimate, as certified in
writing by an executive officer of the Company to the Haagen Family, of the
proposed date of filing of a registration statement or a preliminary
prospectus supplement relating to an existing shelf registration statement,
in either case, pertaining to an underwritten public offering of equity
securities of the Company for the account of the Company, and ending on the
date 75 days following the effective date of such registration statement or
the date of filing of the final prospectus supplement, and (ii) the Company
shall be entitled to require the Haagen Family not to sell under the Demand
Registration or to suspend the effectiveness thereof (but not for a period
exceeding 75 days in any calendar year) if the Company determines, in its
good faith judgment, that such offering or continued effectiveness would
interfere with any material financing, acquisition, disposition, corporate
reorganization or other material transaction involving the Company or any
of its subsidiaries or public disclosure thereof would be required prior to
the time such disclosure might otherwise be required, or when the Company
is in possession of material information that it deems advisable not to
disclose in a registration statement.
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Once any registration statement filed pursuant to this Section 2 or in
which Registrable Securities are included pursuant to Section 3 has been
declared effective, any period during which the Company fails to keep such
registration statement effective and usable for resale of Registrable
Securities for the period required by Section 4(b) shall be referred to as
a "Registration Suspension Period". A Registration Suspension Period shall
commence on and include the date that the Company gives written notice to
the Haagen Family of its determination that such registration statement is
no longer effective or usable for resale of Registrable Securities (the
"Suspension Notice") to and including the date when the Company notifies
the Haagen Family that the use of the prospectus included in such
registration statement may be resumed for the disposition of Registrable
Securities.
(c) Number of Demand Registrations. The Company shall be obligated to
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effect, under this Section 2, only three Demand Registrations. A Demand
Registration shall not be deemed to have been effected, nor shall it be
sufficient to reduce the number of Demand Registrations available to the
Haagen Family under this Section 2, if such registration cannot be used by
the Haagen Family for more than 60 days as a result of any stop order,
injunction or other order of the Commission or other Government Authority
for any reason other than an act or omission of the Haagen Family and all
the Registerable Securities registered thereunder are not sold.
(d) Notice. The Company shall give the Haagen Family prompt notice in
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the event that the Company has suspended sales of Registrable Securities
under Section 2(b).
(e) Expenses. All Registration Expenses incurred in connection with
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the first Demand Registration which may be requested under this Section 2
shall be borne by the Company, with the Haagen Family only paying
underwriting fees and discounts. The Registration Expenses incurred in
connection with the second Demand Registration which may be requested under
this Section 2 shall be borne equally by the Company and the Haagen Family.
All Registration Expenses and underwriting fees and discounts incurred in
connection with the remaining Demand Registration which may be requested
under this Section 2 shall be borne by the Haagen Family.
(f) Selection of Underwriters. Any and all underwriters or other
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agents involved in any sale of Registrable Securities pursuant to a
registration statement contemplated by this Section 2 shall include such
underwriter(s) or other agent(s) as selected by the Haagen Family and
approved of by the Company, which approval shall not be unreasonably
withheld.
Section 3. Incidental Registrations
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(a) Notification and Inclusion. If the Company proposes to register
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for its own account any common equity securities of the Company or any
securities convertible into common equity securities of the Company under
the Securities Act (other than a registration relating solely to the sale
of securities to participants in a dividend reinvestment plan, a
registration on Form S-4 relating to a business combination or similar
transaction permitted to be registered on such Form S-4, a registration on
Form S-8 relating solely to the sale of securities to participants in a
stock or employee benefit plan, a registration permitted under Rule 462
under the Securities Act registering additional securities of the same
class as were included in an earlier registration statement for the same
offering, and declared effective), the Company shall, at each such time
after the Commencement Date until the Haagen Family no longer holds
Registerable Securities, promptly give written notice of such registration
to the Haagen Family. Upon the written request of the Haagen Family given
within 10 days after receipt of such notice by the Haagen Family, the
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Company shall seek to include in such proposed registration such
Registrable Securities as the Haagen Family shall request be so included
and shall use its reasonable best efforts to cause a registration statement
covering all of the Registrable Securities that the Haagen Family has
requested to be registered to become effective under the Securities Act.
The Company shall be under no obligation to complete any offering of
securities it proposes to make under this Section 3 and shall incur no
liability to the Haagen Family for its failure to do so. If, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any
reason not to register or to delay registration of such securities, the
Company may, at its election, give written notice of such determination to
the Haagen Family and, thereupon, (i) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses incurred in connection
therewith) and (ii) in the case of a determination to delay registering,
the Company shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering such other
securities.
(b) Cut-back Provisions. If a registration pursuant to this Section 3
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involves an Underwritten/Placed Offering of the securities so being
registered, whether or not solely for sale for the account of the Company,
which securities are to be distributed by or through one or more
underwriters of recognized standing under underwriting terms customary for
such transaction, and the underwriter or the managing underwriter, as the
case may be, of such Underwritten/Placed Offering shall inform the Company
of its belief that the amount of securities requested to be included in
such registration or offering exceeds the amount which can be sold in (or
during the time of) such offering without delaying or jeopardizing the
success of the offering (including the price per share of the securities to
be sold), then the Company will include in such registration (i) first, all
the securities of the Company which the Company proposes to sell for its
own account or the account of others (other than the Haagen Family)
requesting inclusion in such registration on request and (ii) second, to
the extent of the amount which the Company is so advised can be sold in (or
during the time of) such offering, Registrable Securities and other
securities requested to be included in such registration, pro rata among
the Haagen Family and others exercising incidental registration rights, on
the basis of the shares of Company Common Stock owned by all such persons.
(c) Expenses. The Company shall bear and pay all Company Registration
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Expenses incurred in connection with any registration of Registrable
Securities pursuant to this Section 3 for the Haagen Family, and all
Registration Expenses incurred in connection with any registration of any
securities sold for the account of the Company referred to in the first
sentence of Section 3(a), and the Haagen Family shall bear and pay all
Registration Expenses (other than Company Registration Expenses) and all
underwriting fees and discounts incurred in connection with any
registration of Registrable Securities pursuant to this Section 3 for the
Haagen Family.
(d) Duration of Effectiveness. At the request of the Haagen Family,
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the Company shall, subject to Section 2(b), use its reasonable best efforts
to keep any registration statement for which Registrable Securities are
included under this Section 3 effective and usable for up to 90 days
(subject to extension for the length of any Registration Suspension
Period), unless the distribution of securities registered thereunder has
been earlier completed; provided, however, that in no event will the
Company be required to prepare or file audited financial statements with
respect to any fiscal year by a date prior to the date on which the Company
would be so required to prepare and file such audited financial statements
if such registration statement were no longer effective and usable.
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Section 4. Registration Procedures. In connection with the filing of
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any registration statement as provided in Section 2 or 3, the Company shall use
its reasonable best efforts to, as expeditiously as reasonably practicable:
(a) prepare and file with the Commission the requisite registration
statement (including a prospectus therein) to effect such registration and
use its reasonable best efforts to cause such registration statement to
become effective, provided that before filing such registration statement
or any amendments or supplements thereto, the Company will furnish to the
counsel selected by the Haagen Family copies of all such documents proposed
to be filed, which documents will be subject to the review of such counsel
before any such filing is made, and the Company will comply with any
reasonable request made by such counsel to make changes in any information
contained in such documents relating to the Haagen Family;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to maintain the effectiveness of
such registration and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement until the earlier of such time as all of such
securities have been disposed of and the date which is 90 days after the
date of initial effectiveness of such registration statement;
(c) furnish to the Haagen Family such number of conformed copies of
such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statements (including each
complete prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, including
documents incorporated by reference, as the Haagen Family may reasonably
request;
(d) register or qualify all Registrable Securities under such other
securities or blue sky laws of such jurisdictions as the Haagen Family
shall reasonably request, to keep such registration or qualification in
effect for so long as such registration statement remains in effect, and
take any other action which may be reasonably necessary or advisable to
enable the Haagen Family to consummate the disposition in such
jurisdictions of the securities owned by the Haagen Family, except that the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this paragraph be obligated to be so
qualified, or to consent to general service of process in any such
jurisdiction, or to subject the Company to any material tax in any such
jurisdiction where it is not then so subject;
(e) cause all Registrable Securities covered by such registration
statement to be registered with or approved by such other Government
Authority as may be reasonably necessary to enable the Haagen Family to
consummate the disposition of such Registrable Securities;
(f) furnish to the Haagen Family a signed counterpart, addressed to
the Haagen Family (and the underwriters, if any), of
(i) an opinion of counsel for the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory in
form and substance to the Haagen Family, and
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(ii) to the extent permitted by then applicable rules of
professional conduct, a "comfort" letter, dated the effective date of
such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements included in such
registration statement, covering substantially the same matters with
respect to such registration statement (and the prospectus included
therein) and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial statements, all as are
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in underwritten
public offerings of securities;
(g) immediately notify the Haagen Family at any time when the Company
becomes aware that a prospectus relating thereto is required to be
delivered under the Securities Act, 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 not misleading in the light of the circumstances
under which they were made, and at the request of the Haagen Family
promptly prepare and furnish to the Haagen Family 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 such
securities, 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 not misleading in the
light of the circumstances under which they were made;
(h) comply or continue to comply in all material respects with the
Securities Act and the Exchange Act and with all applicable rules and
regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the
period of at least 12 months, but not more than 18 months, beginning with
the first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act, and not file any amendment or supplement to
such registration statement or prospectus to which the Haagen Family shall
have reasonably objected on the grounds that such amendment or supplement
does not comply in all material respects with the requirements of the
Securities Act, having been furnished with a copy thereof at least five
Business Days prior to the filing thereof;
(i) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement; and
(j) list all Company Common Stock covered by such registration
statement on any securities exchange on which any of the Company Common
Stock is then listed.
the Haagen Family shall furnish in writing to the Company such information
regarding the Haagen Family (and any of its affiliates), the Registrable
Securities to be sold, the intended method of distribution of such Registrable
Securities, and such other information requested by the Company as is necessary
for inclusion in the registration statement relating to such offering pursuant
to the Securities Act and the rules of the Commission thereunder. Such writing
shall expressly state that it is being furnished to the Company for use in the
preparation of a registration statement, preliminary prospectus, supplementary
prospectus, final prospectus or amendment or supplement thereto, as the case may
be.
the Haagen Family agrees by acquisition of the Registrable Securities that
upon receipt of any notice from the Company of the happening of any event of the
kind described in paragraph (g) of this
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Section 4, the Haagen Family will forthwith discontinue its disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until the Haagen Family's receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (g) of this
Section 4.
Section 5. Requested Underwritten Offerings. If requested by the
--------------------------------
underwriters for any underwritten offerings by the Haagen Family, under a
registration requested pursuant to Section 2(a), the Company will enter into a
customary underwriting agreement with such underwriters for such offering, to
contain such representations and warranties by the Company and such other terms
as are customarily contained in agreements of this type, including indemnities
to the effect and to the extent provided in Section 6. the Haagen Family shall
be a party to such underwriting agreement and may, at its option, require that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
the Haagen Family. the Haagen Family shall not be required to make any
representations or warranties to or agreement with the Company or the
underwriters other than representations, warranties or agreements regarding the
Haagen Family and the Haagen Family's intended method of distribution and any
other representation or warranty required by law.
Section 6. Preparation; Reasonable Investigation. In connection with
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the preparation and filing of the registration statement under the Securities
Act, the Company will give the Haagen Family, its underwriters, if any, and
their respective counsel, the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers, its counsel and the independent
public accountants who have certified its financial statements as shall be
necessary, in the opinion of the Haagen Family's and such underwriters'
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
Section 7. Indemnification
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(a) Indemnification by the Company. In the event of any registration
------------------------------
of any Registrable Securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless the Haagen
Family, each other person who participates as an underwriter in the
offering or sale of such securities and each other person who controls any
such underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which the
Haagen Family or any such underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the registration statement under which such Registrable
Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, 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, and the Company will reimburse the Haagen Family
and each such underwriter and controlling person for any reasonable legal
or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceedings; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus,
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amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Haagen Family or any other
person who participates as an underwriter in the offering or sale of such
securities, in either case, specifically stating that it is for use in the
preparation thereof, and provided, further, that the Company shall not be
liable to any person who participates as an underwriter in the offering or
sale of Registrable Securities or any other person, if any, who controls
such underwriter within the meaning of the Securities Act in any such case
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such person's
failure to send or give a copy of the final prospectus or supplement to the
persons asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the
sale of Registrable Securities to such person if such statement or omission
was corrected in such final prospectus or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of the Haagen Family or any such underwriter or controlling
person and shall survive the transfer of such securities by the Haagen
Family.
(b) Indemnification by the Haagen Family. The Haagen Family will, and
------------------------------------
hereby does, indemnify and hold harmless (in the same manner and to the
same extent as set forth in paragraph (a) of this Section 7) the Company,
each director of the Company, each officer of the Company and each other
person, if any, who controls the Company within the meaning of the
Securities Act, and each other person who participates as an underwriter in
the offering or sale of such securities and each other person who controls
any such underwriter within the meaning of the Securities Act, with respect
to any untrue statement or alleged untrue statement of a material fact in
or omission or alleged omission to state a material fact from such
registration statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement
thereto, if such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Haagen Family
specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer, or controlling person and shall
survive the transfer of such securities by the Haagen Family.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
-----------------------
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraphs of this Section 7, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of
this Section 7, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to the
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation.
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(d) Other Indemnification. Indemnification similar to that specified
---------------------
in the preceding paragraphs of this Section 7 (with appropriate
modifications) shall be given by the Company and the Haagen Family with
respect to any required registration or other qualification of securities
under any federal or state law or regulation of Governmental Authority
other than the Securities Act.
(e) Indemnification Payments. The indemnification required by this
------------------------
Section 7 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
(f) Contribution. If, for any reason, the foregoing indemnity is
------------
unavailable, or is insufficient to hold harmless an indemnified party, then
the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of the expense, loss, damage or
liability, (i) in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and the indemnified party
on the other (determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission relates
to information supplied by the indemnifying party or the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission), or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or provides a lesser sum to the indemnified party than the
amount hereinafter calculated, in the proportion as is appropriate to
reflect not only the relative fault of the indemnifying party and the
indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other,
as well as any other relevant equitable considerations. 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.
Section 8. Covenants Relating to Rule 144. The Company will file in
------------------------------
a timely manner (taking into account any extensions granted by the Commission),
information, documents and reports in compliance with the Exchange Act and will,
at its expense, forthwith upon the request of the Haagen Family, deliver to the
Haagen Family a certificate, signed by the Company's principal financial
officer, stating (a) the Company's name, address and telephone number (including
area code), (b) the Company's Internal Revenue Service identification number,
(c) the Company's Commission file number, (d) the number of shares of Company
Common Stock and the number of shares of Company Preferred Stock outstanding as
shown by the most recent report or statement published by the Company, and (e)
whether the Company has filed the reports required to be filed under the
Exchange Act for a period of at least 90 days prior to the date of such
certificate and in addition has filed the most recent annual report required to
be filed thereunder. If at any time the Company is not required to file reports
in compliance with either Section 13 or Section 15(d) of the Exchange Act, the
Company will, at its expense, forthwith upon the written request of the Haagen
Family, make available adequate current public information with respect to the
Company within the meaning of paragraph (c)(2) of Rule 144 of the General Rules
and Regulations promulgated under the Securities Act.
Section 9. Miscellaneous
-------------
(a) Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other party. Copies of
executed counterparts transmitted by telecopy, telefax or other electronic
transmission service shall be considered original executed counterparts for
purposes of this Section 9, provided receipt of copies of such counterparts
is confirmed.
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(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO
THE CHOICE OF LAW PRINCIPLES THEREOF.
(c) Entire Agreement. This Agreement (including agreements
----------------
incorporated herein) contains the entire agreement between the parties with
respect to the subject matter hereof and there are no agreements or
understandings between the parties other than those set forth or referred
to herein. This Agreement is not intended to confer upon any person not a
party hereto (and their successors and assigns) any rights or remedies
hereunder.
(d) Notices. All notices and other communications hereunder shall be
-------
sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or, to the extent
receipt is confirmed, telecopy, telefax or other electronic transmission
service to the appropriate address or number as set forth below. Notices
to the Company shall be addressed to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address and to the attention of such other person as the
Company may designate by written notice to the Haagen Family. Notices to the
Haagen Family shall be addressed to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Stroock & Stroock & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
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(e) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors.
Neither party shall be permitted to assign any of its rights hereunder to
any third party, except that if (i) the Haagen Family transfers or pledges
any or all Registrable Securities to a bona fide financial institution as
security for any bona fide indebtedness of any the Haagen Family and such
financial institution agrees to be bound by the Stockholders Agreement, the
pledgee of the Registrable Securities shall be considered an intended
beneficiary hereof and may exercise all rights of the Haagen Family
hereunder, and (ii) any person included within the definition of the term
the Haagen Family shall be permitted to assign its rights hereunder to any
other person included within such definition.
(f) Headings. The Section and other headings contained in this
--------
Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement. All references to
Sections or other headings contained herein mean Sections or other headings
of this Agreement unless otherwise stated.
(g) Amendments and Waivers. This Agreement may not be modified or
----------------------
amended except by an instrument or instruments in writing signed by the
party against whom enforcement of any such modification or amendment is
sought. Either party hereto may, only by an instrument in writing, waive
compliance by the other party hereto with any term or provision hereof on
the part of such other party hereto to be performed or complied with. The
waiver by any party hereto of a breach of any term or provision hereof
shall not be construed as a waiver of any subsequent breach.
(h) Interpretation; Absence of Presumption. For the purposes hereof,
--------------------------------------
(i) words in the singular shall be held to include the plural and vice
versa and words of one gender shall be held to include the other gender as
the context requires, (ii) the terms "hereof", "herein", and "herewith" and
words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, paragraph or other references are to the
Sections, paragraphs, or other references to this Agreement unless
otherwise specified, (iii) the word "including" and words of similar import
when used in this Agreement shall mean "including, without limitation,"
unless the context otherwise requires or unless otherwise specified, (iv)
the word "or" shall not be exclusive, and (v) provisions shall apply, when
appropriate, to successive events and transactions.
This Agreement shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.
(i) Severability. Any provision hereof which is invalid or
------------
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions
hereof.
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
------------------------------------------------
Name:▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-------------------------------------------
Title: Chairman, President and Chief
Executive Officer
-----------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
-----------------------------------------------------
THE HAAGEN LIVING TRUST DATED
AUGUST 17, 1988
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Co-Trustee
/s/ Autumn Haagen
-----------------------------------------------------
AUTUMN HAAGEN
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III/▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III & ▇▇▇▇▇ ▇▇▇▇▇▇
TR FBO ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ UA 10/24/88
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III/▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III & ▇▇▇▇▇ ▇▇▇▇▇▇
TR FBO ▇▇▇▇▇▇ ▇▇▇▇▇▇ UA 10/28/88
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III/▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III & ▇▇▇▇▇ ▇▇▇▇▇▇
TR FBO AUTUMN HAAGEN UA 10/24/88
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