REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of January 31, 2001, by and between CBL & Associates Properties, Inc., a
Delaware corporation (the "Company"), and the holders of SCUs listed on Schedule
A hereto (individually, a "Holder").
WHEREAS, in connection with the consummation of the transactions
contemplated by the Master Contribution Agreement, each Holder has received
Series J Special Common Units of limited partnership interest ("SCUs") in CBL &
Associates Limited Partnership, a Delaware limited partnership;
WHEREAS, in connection therewith, the Company has agreed to grant to each
Holder the registration rights set forth below;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing and
the mutual covenants and agreements hereinafter set forth, hereby agree as
follows:
ARTICLE I
DEFINITIONS
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1.1. The following terms and phrases shall, for purposes of this Agreement,
have the meanings set forth below:
"Blackout Termination Right" has the meaning set forth in Section 5.3(b).
"Business Day" means any day on which the New York Stock
Exchange is open for trading.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Common Units" means common units of the Operating Partnership issued by
the Operating Partnership in respect of or in exchange for SCUs.
"Company" has the meaning set forth in the Introductory Paragraph.
"Company Offering" has the meaning set forth in Section 3.1(b).
"Company Sale Period" has the meaning set forth in Section 3.1(b).
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"Conversion Shares" means all or any portion of the shares of Common Stock
received by the Holders, or issuable to the Holders, upon exercise of their
rights to exchange their SCUs or Common Units for shares of Common Stock
pursuant to the OP Partnership Agreement.
"Eligible Securities" means all or any portion of the Conversion Shares;
provided, that, as to any proposed offer or sale of Eligible Securities, such
securities shall cease to be Eligible Securities with respect to such proposed
offer or sale when (i) 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, (ii) such securities are permitted to be distributed pursuant to Rule
144(k) (or any successor provision to such Rule) under the Securities Act to be
confirmed in a written opinion of counsel to the Company addressed to the
Holders, or (iii) such securities shall have been otherwise transferred pursuant
to an applicable exemption under the Securities Act, new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company and such securities shall be freely transferable to the
public without registration under the Securities Act.
"Holder" shall have the meaning set forth in the Introductory Paragraph.
"Information Blackout" has the meaning set forth in Section 5.3(a).
"Master Contribution Agreement" means the Master Contribution Agreement,
dated as of September 25, 2000 and amended as of December 19, 2000, among Jacobs
Realty Investors Limited Partnership, Richard E. Jacobs as trustee for the
Richard E. Jacobs Revocable Living Trust and as trustee for the David H. Jacobs
Marital Trust, the Operating Partnership and the Company.
"Operating Partnership" means CBL & Associates Limited Partnership, a
Delaware limited partnership, and any successor in interest thereto.
"OP Partnership Agreement" means the Second Amended and Restated Agreement
of Limited Partnership of the Operating Partnership dated June 30, 1998, as
amended by the First Amendment to the Second Amended and Restated Agreement of
Limited Partnership dated as of the date hereof and as the same may be further
amended from time to time.
"Other Holder" has the meaning set forth in Section 3.2.
"Other Securities" has the meaning set forth in Section 4.1.
"Person" means an individual, a partnership (general or limited),
corporation, limited liability company, joint venture, business trust,
cooperative,
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association or other form of business organization, whether or not regarded as a
legal entity under applicable law, a trust (inter vivos or testamentary), an
estate of a deceased, insane or incompetent person, a quasi-governmental entity,
a government or any agency, authority, political subdivision or other
instrumentality thereof, or any other entity.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth herein
including, without limitation, the following: (i) the fees, disbursements and
expenses of the Company's counsel(s), accountants and experts in connection with
the registration of Eligible Securities under the Securities Act; (ii) all
expenses in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to the underwriters and dealers; (iii) the cost
of printing or producing any agreement(s) among underwriters, underwriting
agreement(s) and blue sky or legal investment memoranda, any selling agreements
and any other documents in connection with the offering, sale or delivery of
Eligible Securities; (iv) all expenses in connection with the qualification of
Eligible Securities for offering and sale under state securities laws, including
the fees and disbursements of counsel for the underwriters in connection with
such qualification and in connection with any blue sky and legal investment
surveys; (v) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
Eligible Securities; and (vi) fees and expenses incurred in connection with the
listing of Eligible Securities on each securities exchange on which securities
of the same class are then listed and all SEC or blue sky registration fees
attributable to Eligible Securities; provided, however, that Registration
Expenses with respect to any registration pursuant hereto shall not include (i)
transfer taxes applicable to Eligible Securities, (ii) underwriting discounts
and selling commissions attributable to Eligible Securities and (iii) fees and
expenses, if any, of any counsel retained by any Holder.
"Sales Blackout Period" has the meaning set forth in Section 5.3(a).
"SCUs" has the meaning set forth in the Recitals.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Selling Holders" means the Holder or Holders who request registration
pursuant to Section 3.1, 3.2 or 4.1.
"Shelf Registration Statement" has the meaning set forth in Section 3.1.
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"Suspension Event" has the meaning set forth in Section 3.1(c).
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
------------------------------------
2.1. Participation in Registration Process by Holders of
Exchangeable/Convertible Units of the Operating Partnership. Subject to the
Holder's compliance with the provisions of Article 3 or Article 4 below, as
applicable, a Holder will be permitted to exercise the registration rights
described in this Agreement in respect of the Eligible Securities issuable upon
exchange or conversion of such Holder's SCUs, Common Units or other interests in
the Operating Partnership prior to the receipt by such Holder of said Eligible
Securities so long as prior to or concurrently with the exercise or
participation in a registration process the Holder has delivered to the Company
an exchange or conversion request that complies with the terms of the interests
being exchanged or converted; provided, however, that the Company's obligations
to comply with such request for registration shall be suspended, for a period
not to exceed thirty (30) days after receipt of such exchange or conversion
request by the Company, until the Company delivers an Exchange Notice or a
Series J Election Notice (as such terms are defined in the OP Partnership
Agreement), as applicable, to the Holder, and, provided, further that the
Company will be obligated to satisfy a registration request only with respect to
the portion of such exchange or conversion request that is satisfied by the
issuance of Common Stock to the Holder.
ARTICLE III
DEMAND REGISTRATION RIGHTS
--------------------------
3.1. Notice and Registration. Upon written notice from a Holder or Holders
owning Eligible Securities requesting that the Company effect the registration
under the Securities Act of all or part of the Eligible Securities held by such
Holders, which notice shall specify the intended method or methods of
disposition of such Eligible Securities, the Company will use all commercially
reasonable efforts to effect (at the earliest possible date) the registration
under the Securities Act of such Eligible Securities for disposition in
accordance with the intended method or methods of disposition stated in such
request (which request may be satisfied by means of a shelf registration
statement pursuant to Rule 415 under the Securities Act (a "Shelf Registration
Statement") if the Company is then eligible to register the Eligible Securities
on Form S-3 under the Securities Act or any successor form; and the Company
agrees that it will use such a Shelf Registration Statement if the Company is
then eligible to do so and the Shelf Registration Statement is requested by the
Holder in its written notice requesting registration), provided that:
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(1) if the Company shall have previously effected a registration with
respect to a Holder's Eligible Securities pursuant to Article 4 hereof, the
Company shall not be required to effect a registration for such Holder's
Eligible Securities pursuant to this Article 3 until a period of six (6)
months shall have elapsed from the effective date of the most recent such
previous registration;
(2) if, upon receipt of a registration request pursuant to this
Article 3, the Company is advised in writing (with a copy to the Selling
Holders) by a nationally recognized independent investment banking firm
selected by the Company to act as lead underwriter in connection with a
public offering of securities by the Company that, in such firm's opinion,
a registration at the time and on the terms requested would materially
adversely affect such public offering of securities by the Company (other
than an offering in connection with employee benefit and similar plans) (a
"Company Offering") that had been contemplated by the Company prior to the
notice by the Holders who initially requested registration, the Company
shall not be required to effect a registration pursuant to this Article 3
until the earliest of (i) three (3) months after the completion of such
Company Offering, (ii) promptly after abandonment of such Company Offering
or (iii) three (3) months after the date of written notice from the Holders
who initially requested registration (such period a "Company Sale Period");
provided, however, that the Company may not exercise its rights to delay
any registration under this Section 3.1(b) (x) more than once in any twelve
(12) month period and (y) within four (4) months of the end of any delay
effected pursuant to Section 3.1(c); and provided further that in no event
shall Suspension Events and Company Sale Periods be permitted to take
effect for more than an aggregate of ninety (90) days in any twelve (12)
month period;
(3) if, while a registration request is pending pursuant to this
Article 3, the Company determines in the good faith judgment of the Board
of Directors of the Company, with the advice of counsel, that the filing of
a registration statement or the declaration of effectiveness would require
the disclosure of non-public material information the disclosure of which
would have a material adverse effect on the Company or would otherwise
adversely affect a material financing, acquisition, disposition, merger or
other comparable transaction involving the Company (such circumstances
being hereinafter referred to as a "Suspension Event"), the Company shall
deliver a certificate to such effect signed by its Chairman, President or
any Vice President to the Selling Holders and the Company shall not be
required to effect a registration pursuant to this Article 3 until the
earlier of (i) the date upon which such material information is disclosed
to the public or ceases to be material or (ii) sixty (60) days after the
Company makes such good faith determination; provided, however, that in no
event shall Suspension Events be permitted to take effect (x) more than
twice in any twelve (12) month period or (y) within four (4) months
following the end of any
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Suspension Event with respect to the same or substantially the same facts
or circumstances; and provided further that in no event shall Suspension
Events and Company Sale Periods be permitted to exist for more than an
aggregate of ninety (90) days in any twelve (12) month period;
(4) the Company shall not be required to effect more than one
registration for the Holders pursuant to this Section 3.1. No registration
of Eligible Securities under this Article 3 shall relieve the Company of
its obligation (if any) to effect registrations of Eligible Securities
pursuant to Article 4; and
(5) if the Eligible Securities of a Holder are registered for resale
pursuant to an effective Shelf Registration Statement filed by the Company
in compliance with this Agreement, then, for so long as that Shelf
Registration Statement is effective and available for use by that Holder in
compliance with applicable securities and other laws and without the need
for any further action by the Company, and the Company is otherwise
complying with any requirements of this Agreement relating to the Shelf
Registration Statement, the Company will be deemed to have satisfied its
obligations pursuant to this Section 3 with respect to that Holder and the
Eligible Securities so registered. For the avoidance of doubt, at any time
in its sole discretion the Company may elect to include the Eligible
Securities of any Holder, or any portion thereof, in any Shelf Registration
Statement being filed by the Company.
3.2. Other Holder Shares. Upon receipt of the written notice from Holders
requesting registration under Section 3.1, the Company may give written notice
to each of the other Holders (the "Other Holders"). Within fifteen (15) Business
Days after receipt of such notice by any Other Holder, such Other Holder may
request in writing that Eligible Securities be included in such registration
and, subject to Section 3.1 hereof, the Company shall include in such
registration the Eligible Securities of any such Other Holder requested to be so
included. Each such request by such Other Holder shall specify the number of
shares of Eligible Securities proposed to be sold and the intended method of
distribution thereof.
3.3. Limitation on Registration Rights. Each registration of Eligible
Securities requested by a Holder pursuant to Section 3.1 shall be with respect
to a minimum of the sum of (x) the number of Eligible Securities held by such
Selling Holder at such time and (y) the number of Conversion Shares issuable to
such Holder upon exchange of all SCUs and Common Units then held by such Holder.
3.4. Registration Expenses. The Company shall pay all Registration Expenses
with respect to any registration of Eligible Securities pursuant to this Article
3.
ARTICLE IV
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PIGGY-BACK REGISTRATION
-----------------------
4.1. Notice and Registration. If the Company proposes to register any
shares of Common Stock or other securities issued by it having terms
substantially similar to Eligible Securities ("Other Securities") for public
sale under the Securities Act (whether proposed to be offered for sale by the
Company or by any other Person) on a form and in a manner which would permit
registration of Eligible Securities for sale to the public under the Securities
Act, it will give prompt written notice to the Holders of its intention to do
so, which notice the Holders shall keep confidential, and upon the written
request of a Holder delivered to the Company within fifteen (15) Business Days
after the giving of any such notice (which request shall specify the number of
Eligible Securities intended to be disposed of by such Holder and the intended
method of disposition thereof) the Company will use all commercially reasonable
efforts to effect, in connection with the registration of the Other Securities,
the registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by the Selling Holders, to the extent
required to permit the disposition (in accordance with the intended method or
methods thereof as aforesaid) of Eligible Securities so to be registered,
provided that:
(1) if, at any time after giving such written notice of its intention
to register any Other 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 the Other
Securities, the Company may, at its election, give written notice of such
determination to the Holders and thereupon the Company shall be relieved of
its obligation to register such Eligible Securities in connection with the
registration of such Other Securities (but not from its obligation to pay
Registration Expenses to the extent incurred in connection therewith as
provided in Section 4.2), without prejudice, however, to the rights (if
any) of the Holders immediately to request that such registration be
effected as a registration under Article 3;
(2) the Company will not be required to effect any registration
pursuant to this Article 4 if the Company shall have been advised in
writing (with a copy to the Selling Holders) by a nationally recognized
independent investment banking firm selected by the Company to act as lead
underwriter in connection with the public offering of securities by the
Company that, in such firm's opinion, such registration at that time would
materially and adversely affect the Company's own scheduled offering,
provided, however, that if an offering of some but not all of the shares
requested to be registered by the Holders and other holders of the
Company's securities with piggyback rights would not adversely affect the
Company's offering, the offering will include all securities offered by the
Company and such number of securities with piggyback rights as is
determined by such lead underwriter is the maximum number that can be
included
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without adversely affecting the Company's offering, and the aggregate
number of shares requested to be included in such offering by the Selling
Holders and each other group of securityholders with piggyback rights shall
be reduced pro rata based on the relative number of shares being proposed
for inclusion by each; if the aggregate number of Eligible Securities to be
included in such offering is reduced in accordance with the foregoing, the
total number of shares requested to be including in such offering by each
Selling Holder shall be reduced pro rata according to the total number of
Eligible Securities requested by each Selling Holder to be registered under
the Securities Act in connection with the registration of the Other
Securities; and
(3) the Company shall not be required to effect any registration of
Eligible Securities under this Article 4 incidental to the registration of
any of its securities (i) on Form S-8 or any successor form to such Form or
in connection with any employee or director welfare, benefit or
compensation plan, (ii) on Form S-4 or any successor form to such Form or
in connection with an exchange offer, (iii) in connection with a rights
offering exclusively to existing holders of Common Stock, (iv) in
connection with an offering solely to employees of the Company or its
subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of the
Securities Act.
No registration of Eligible Securities effected under this Article 4 shall
relieve the Company of its obligation (if any) to effect registrations of
Eligible Securities pursuant to Article 3.
4.2. Registration Expenses. The Company (as between the Company and the
Selling Holders) shall be responsible for the payment of all Registration
Expenses in connection with any registration pursuant to this Article 4.
ARTICLE V
REGISTRATION PROCEDURES
-----------------------
5.1. Registration and Qualification. If and whenever the Company is
required to use all commercially reasonable efforts to effect the registration
of any Eligible Securities under the Securities Act as provided in Articles 3 or
4, the Company will as promptly as is practicable:
(1) prepare, file and use all commercially reasonable efforts to cause
to become effective a registration statement under the Securities Act
regarding the Eligible Securities to be offered;
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(2) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
and take such other actions 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 Eligible Securities until the
earlier of (A) such time as all of such Eligible Securities have been
disposed of in accordance with the intended methods of disposition by the
Selling Holders set forth in such registration statement or (B)(i) the
expiration of twelve months after such Registration Statement becomes
effective or (ii), with respect to a Shelf Registration Statement, such
longer time as all of such Eligible Securities have been disposed of in
accordance with the intended methods of disposition by the Selling Holders
set forth in such registration statement; provided, that, such longer
period will only be available (A) to the extent that Rule 415, or any
successor rule under the Securities Act, permits an offering on a
continuous or delayed basis and (B) if applicable rules under the
Securities Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (y) includes any
prospectus required by Section 10(a) of the Securities Act or (z) reflects
facts or events representing a material or fundamental change in the
information set forth in the registration statement, the incorporation by
reference of information required to be included in (y) and (z) above to be
contained in periodic reports filed pursuant to Section 12 or 15(d) of the
Securities Exchange Act of 1934, as amended, in the registration statement;
(3) furnish to the Selling Holders and to any underwriter of such
Eligible Securities 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 included
in such registration statement (including each preliminary prospectus and
any supplemental prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents as the
Selling Holders or such underwriter may reasonably request;
(4) use its commercially reasonable efforts to register or qualify all
Eligible Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the Selling Holders or
any underwriter of such Eligible Securities shall reasonably request, and
do any and all other acts and things which may be reasonably requested by
the Selling Holders or any underwriter to consummate the disposition in
such jurisdictions of the Eligible Securities covered by such registration
statement, except 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 is not so qualified, or to subject itself to
taxation in any jurisdiction where it is not then subject to
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taxation, or to consent to general service of process in any jurisdiction
where it is not then subject to service of process;
(5) use all commercially reasonable efforts to list the Eligible
Securities on each national securities exchange on which the Common Stock
is then listed, if the listing of such securities is then permitted under
the rules of such exchange;
(6) (i) furnish to the Selling Holders an opinion of counsel for the
Company, addressed to them, dated the date of the closing under the
underwriting agreement, and (ii) use its reasonable efforts to furnish to
the Selling Holders, addressed to them, a "comfort letter" signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement, addressed to them, each
such document covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of such accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to underwriters
in underwritten public offerings of securities and such other matters as
the Selling Holders may reasonably request;
(7) immediately notify the Selling Holders at any time when a
prospectus relating to a registration pursuant to Article 3 or 4 hereof 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, in the light of the circumstances
under which they were made, not misleading, and at the request of the
Selling Holders prepare and furnish to the Selling Holders as many copies
of a supplement to or an amendment of such prospectus as the Selling
Holders reasonably request so that, as thereafter delivered to the
purchasers of such Eligible 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,
in light of the circumstances under which they were made, not misleading;
and
(8) immediately notify the Selling Holders of the issuance by the SEC
or any state securities authority of any stop order suspending the
effectiveness of a registration statement filed pursuant to Article 3 or 4
hereof or the initiation of any proceedings for that purpose and take every
reasonable effort to obtain the withdrawal of any such stop order.
The Company may require the Selling Holders to furnish the Company such
information regarding the Selling Holders and the proposed method of
distribution of their respective
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Eligible Securities as the Company may from time to time reasonably request in
writing and as shall be required by law or by the SEC in connection with any
registration, and each Selling Holder shall promptly notify the Company of the
distribution of such securities. Each Holder agrees that it will respond in
writing within ten (10) Business Days to any request by the Company to provide
or verify any information regarding that Holder or the Holder's Eligible
Securities that is required to be included in a registration statement relating
to the Holder's Eligible Securities pursuant to the rules and regulations of the
SEC.
5.2. Underwriting. (1) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
requested hereunder, the Company will enter into and perform its obligations
under an underwriting agreement with such underwriters for such offering, such
agreement to contain such representations and warranties by the Company and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Article 7 hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 5.1(f).
The holders of Eligible Securities on whose behalf Eligible Securities are to be
distributed by such underwriters shall, if requested by such underwriters, be
parties to any such underwriting agreement. Notwithstanding the foregoing, any
Selling Holder may elect, in writing, prior to the effective date of the
registration statement filed in connection with such registration, not to
register such Eligible Securities in connection with such registration.
(2) In the event that any registration pursuant to Article 4 hereof
shall involve, in whole or in part, an underwritten offering, the Company
may require Eligible Securities requested to be registered pursuant to
Article 4 to be included in such underwriting on the same terms and
conditions as shall be applicable to the Other Securities being sold
through underwriters under such registration. In such case, the holders of
Eligible Securities on whose behalf Eligible Securities are to be
distributed by such underwriters shall be parties to any such underwriting
agreement. Such agreement shall contain such representations and warranties
by the Selling Holders and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution
to the effect and to the extent provided in Article 7.
(3) In the event that any registration pursuant to Article 3 hereof
shall involve, in whole or in part, an underwritten offering, the Selling
Holders shall have the right to select the underwriters for such
underwritten offering, which underwriters shall be subject to approval by
the Company, which approval shall not be unreasonably withheld or delayed.
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5.3. Blackout Periods. (1) At any time when a registration statement filed
pursuant to Article 3 relating to Eligible Securities is effective, upon written
notice from the Company to the Selling Holders that the Company determines in
the good faith judgment of the Board of Directors of the Company, with the
advice of counsel, that the Selling Holders' sale of Eligible Securities
pursuant to the registration statement would require disclosure of non-public
material information the disclosure of which would have a material adverse
effect on the Company (an "Information Blackout"), the Selling Holders shall
suspend sales of Eligible Securities pursuant to such registration statement
until the earlier of:
(X) the earlier of (A) the date upon which such material
information is disclosed to the public or ceases to be material or (B)
sixty (60) days after the Company makes such good faith determination,
and
(Y) such time as the Company notifies the Selling Holders that
sales pursuant to such registration statement may be resumed (the
number of days from such suspension of sales by the Selling Holders
until the day when such sales may be resumed hereunder is hereinafter
called a "Sales Blackout Period").
(2) Any delivery by the Company of notice of an Information Blackout
during the ninety (90) days immediately following effectiveness of any
registration statement effected pursuant to Article 3 hereof shall give the
Holders the right, by written notice to the Company within twenty (20)
Business Days after the end of such Sales Blackout Period, to cancel such
registration and obtain one additional registration right within the twelve
(12) month period following such cancellation (a "Blackout Termination
Right") under Section 3.1(d).
(3) If there is an Information Blackout and the Holders do not
exercise their cancellation right, if any, pursuant to subsection (b)
above, or, if such cancellation right is not available, the time period set
forth in Section 5.1(b) shall be extended for a number of days equal to the
number of days in the Sales Blackout Period.
5.4. Qualification for Rule 144 Sales. The Company will take all actions
necessary to comply with the filing requirements described in Rule 144(c) (1) so
as to enable the Holders to sell Eligible Securities without registration under
the Securities Act and, upon the written request of any Holder, the Company will
promptly deliver to such Holder a written statement as to whether it has
complied with such filing requirements. In connection with any sale, transfer or
other disposition by any Holder of any Eligible Securities pursuant to Rule 144
under the Securities Act, the Company shall cooperate with the Holder to
facilitate the timely preparation and delivery of certificates representing
Eligible Securities to be sold and not bearing any Securities Act legend, and
enable certificates for such Eligible Securities to be for such number of shares
and
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registered in such names as the Holder may reasonably request at least five (5)
Business Days prior to any sale of Eligible Securities hereunder.
ARTICLE VI
PREPARATION; REASONABLE INVESTIGATION
-------------------------------------
6.1. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the Selling Holders
and the underwriters, if any, and their respective counsel and accountants,
drafts of such registration statement for their review and comment prior to
filing and such reasonable and customary access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the opinion of the Selling Holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act, subject in all cases to mutually
acceptable confidentiality arrangements.
ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
--------------------------------
7.1. Indemnification and Contribution. (1) The Company hereby agrees to
indemnify and hold harmless each Person that exercises registration rights
hereunder and, to the extent applicable, its directors and officers, its
partners, its trustees and each Person who controls any of such Persons, each
Person who participates as an underwriter in the offering or sale of such
securities, and each Person, if any, who controls such underwriter within the
meaning of the Securities Act against any losses, claims, damages, liabilities
and expenses, joint or several, to which such Person may be subject under the
Securities Act or otherwise insofar as such losses, claims, damages, liabilities
or expenses (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus included therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
promptly reimburse each such Person for any legal or any other expenses
reasonably incurred by such Person in connection with investigating or defending
any such loss, claim, damage, liability, action or proceeding, provided, that,
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action
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or proceeding in respect thereof) or expenses 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 or final
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Selling Holders or such
underwriter expressly for use in the registration statement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of Holders or any such Person and shall survive the transfer of such
securities by the Selling Holders.
(2) Each Selling Holder, by virtue of exercising its registration
rights hereunder, agrees to, severally and not jointly, indemnify and hold
harmless (in the same manner and to the same extent as set forth in clause
(a) of this Article 7) the Company, each director of the Company, each
officer of the Company who shall sign such registration statement, each
Person who participates as an underwriter in the offering or sale of such
securities, each Person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act, with respect to any
statement in or omission from such registration statement, any preliminary
prospectus or final prospectus included therein, or any amendment or
supplement thereto, but only to the extent that such statement or omission
was made in reliance upon and in conformity with written information
furnished by such Selling Holder to the Company expressly for use in the
registration statement. Notwithstanding the provisions of this Section
7.1(b), a Holder shall not be required to indemnify the Company, its
directors, officers, underwriters or control persons with respect to any
amount in excess of the amount of the total proceeds to such Holder from
sales of the Eligible Securities under such registration statement, and no
Holder shall be liable under this Section 7.1(b) for any statements or
omissions of any other Holder. 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 the registered securities by such Selling Holder
and the expiration of this Agreement.
(c) An indemnified party hereunder shall give reasonably prompt notice
to the indemnifying party of any action or proceeding commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify the indemnifying party (i) shall not relieve it from any liability
which it may have under the indemnity agreement provided in Section 7.1(a)
or (b) above, unless and to the extent it did not otherwise learn of such
action and the lack of notice by the indemnified party results in the
forfeiture by the indemnifying party of substantial rights and defenses,
and (ii) shall not, in any event, relieve the indemnifying party from any
obligations to the indemnified party other than the indemnification
obligation provided under Section 7.1(a) or (b) above. If the indemnifying
party so elects within a reasonable time after receipt of such notice, the
indemnifying party may assume the defense of such action or proceeding at
such indemnifying
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party's own expense with counsel chosen by the indemnifying party and
approved by the indemnified party, which approval shall not be unreasonably
withheld; provided, however, that the indemnifying party will not settle
any such action or proceeding without the written consent of the
indemnified party unless (i), as a condition to such settlement, the
indemnifying party secures the unconditional release of the indemnified
party and (ii) the settlement does not include any statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party; and provided, further, that if the indemnified party
reasonably determines that a conflict of interest exists where it is
advisable for the indemnified party to be represented by separate counsel
or that, upon advice of counsel, there may be legal defenses available to
it which are different from or in addition to those available to the
indemnifying party, then the indemnifying party shall not be entitled to
assume such defense and the indemnified party shall be entitled to separate
counsel at the indemnifying party's expense. If the indemnifying party is
not entitled to assume the defense of such action or proceeding as a result
of the second proviso to the preceding sentence, the indemnifying party's
counsel shall be entitled to conduct the indemnifying party's defense and
counsel for the indemnified party shall be entitled to conduct the defense
of the indemnified party, it being understood that both such counsel will
cooperate with each other to conduct the defense of such action or
proceeding as efficiently as possible. If the indemnifying party is not so
entitled to assume the defense of such action or does not assume such
defense, after having received the notice referred to in the first sentence
of this paragraph, the indemnifying party will pay the reasonable fees and
expenses of counsel for the indemnified party. In such event, however, the
indemnifying party will not be liable for any settlement effected without
the written consent of the indemnifying party, which consent shall not be
unreasonably conditioned, withheld or delayed. If an indemnifying party is
entitled to assume, and assumes, the defense of such action or proceeding
in accordance with this paragraph, the indemnifying party shall not be
liable for any fees and expenses of counsel for the indemnified party
incurred thereafter in connection with such action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Sections
7.1(a) and (b) above is for any reason held to be unenforceable by the
indemnified party although applicable in accordance with its terms, the
Company and the relevant Holder shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Company and the Holder, (i) in
such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and the Holder on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault of but also the relative
benefits to the Company
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on the one hand and the Holder on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits to the indemnifying party and
indemnified party shall be determined by reference to, among other things,
the total proceeds received by the indemnifying party and indemnified party
in connection with the offering to which such losses, claims, damages,
liabilities or expenses relate. The relative fault of the indemnifying
party and indemnified party shall be determined by reference to, among
other things, whether the action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact, has been made by, or 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 action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 7.1(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7.1(d), a Holder shall not be
required to contribute any amount in excess of the amount of the total proceeds
received by such Holder from sales of the Eligible Securities of such Holder
under such registration statement.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7.1(d), each Person,
if any, who controls a Holder within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as the Holder, and each
trustee/director of the Company, each officer of the Company who signed such
registration statement and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
(e) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Article 7 (with appropriate modifications)
shall be given by the Company and the Selling Holders with respect to any
required registration or other qualification of such Eligible Securities
under any federal or state law or regulation of governmental authority
other than the Securities Act.
ARTICLE VIII
MISCELLANEOUS
-------------
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8.1. Benefits of Registration Rights. Subject to the limitations of
Sections 3.1 and 4.1, any Holder may severally or jointly exercise the
registration rights hereunder in such manner and in such proportion as they
shall agree among themselves.
8.2. Integration; Amendment. This Agreement constitutes the entire
agreement among the parties hereto with respect to the matters set forth herein
and supersedes and renders of no force and effect all prior oral or written
agreements, commitments and understandings among the parties with respect to the
matters set forth herein, other than any agreement as may exist solely among the
Holders. Except as otherwise expressly provided in this Agreement, no amendment,
modification or discharge of this Agreement shall be valid or binding unless set
forth in writing and duly executed by the Company and each Holder against whom
such amendment, modification or discharge is sought to be enforced.
8.3. Waivers. No waiver by a party hereto shall be effective unless made in
a written instrument duly executed by the party against whom such waiver is
sought to be enforced, and only to the extent set forth in such instrument.
Neither the waiver by any of the parties hereto of a breach or a default under
any of the provisions of this Agreement, nor the failure of any of the parties,
on one or more occasions, to enforce any of the provisions of this Agreement or
to exercise any right or privilege hereunder shall thereafter be construed as a
waiver of any subsequent breach or default of a similar nature, or as a waiver
of any such provisions, rights or privileges hereunder.
8.4. Burden and Benefit. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors,
personal and legal representatives and successors. If a Holder disposes of
Conversion Shares, SCUs and/or Common Units, such Conversion Shares, SCUs and/or
Common Units shall remain subject to this Agreement and, as a condition of the
validity of such disposition, the transferee shall be required to execute and
deliver a counterpart of this Agreement unless such transferee is already a
Holder. Thereafter, such transferee shall be deemed to be a Holder for purposes
of this Agreement.
8.5. Notices. All notices called for under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally or by
facsimile transmission and followed promptly by mail, or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the addresses set forth opposite their names in Schedule A hereto, or to any
other address or addressee as any party entitled to receive notice under this
Agreement shall designate, from time to time, to others in the manner provided
in this Section 8.5 for the service of notices; provided, however, that notices
of a change of address shall be effective only upon receipt thereof. Any notice
delivered to the party hereto to whom it is addressed shall be deemed to have
been given and received on the day it was received; provided, however, that if
such day is not a Business Day then the notice shall be deemed to have been
given and received on the Business Day next following such day and if any party
rejects delivery of any notice
-17-
attempted to be given hereunder, delivery shall be deemed given on the date of
such rejection. Any notice sent by facsimile transmission shall be deemed to
have been given and received on the Business Day next following the
transmission.
8.6. Specific Performance. The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to (i)
compel specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.
8.7. Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of New York, but not
including the choice of law rules thereof.
8.8. Headings. Section and subsection headings contained in this Agreement
are inserted for convenience of reference only, shall not be deemed to be a part
of this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
8.9. Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the person or entity may require.
8.10. Execution in Counterparts. To facilitate execution, this Agreement
may be executed in as many counterparts as may be required. It shall not be
necessary that the signature of or on behalf of each party appears on each
counterpart, but it shall be sufficient that the signature of or on behalf of
each party appears on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of all of the
parties.
8.11. Severability. If fulfillment of any provision of this Agreement, at
the time such fulfillment shall be due, shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision contained in this
Agreement operates or would operate to invalidate this Agreement, in whole or in
part, then such clause or provision only shall be
-18-
held ineffective, as though not herein contained, and the remainder of this
Agreement shall remain operative and in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed on its behalf as of the date first hereinabove set forth.
CBL & ASSOCIATES PROPERTIES, INC.
By: ______________________________
Name:
Title:
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SCHEDULE A
HOLDERS
FRANKEL MIDLAND LIMITED PARTNERSHIP Somerset Place Tower One
2301 Big Beaver Road
Suite 990
Troy, Michigan 48084
By: ______________________________
Name: Samuel Frankel
Title: Its general partner
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