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EXHIBIT 4(b)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as
of
October 22, 2002, by and between KIMCO
REALTY CORPORATION, a Maryland
corporation ("Kimco"), and WESTLAKE
DEVELOPMENT COMPANY, INC., a California
corporation ("Westlake").
A. Westlake is a party to that certain Contribution Agreement dated
as
of August 14, 2002 (as amended, the
"Contribution Agreement"), and is a Limited
Partner under that certain Agreement of
Limited Partnership of Kimco Westlake
L.P. of even date herewith (the
"Partnership Agreement").
B. Kimco and Westlake desire to enter into this Agreement in order
to
set forth the registration obligations of
Kimco with respect to those certain
shares of Kimco common stock, par value
$0.01 per share (the "REIT Shares"), to
be issued to Westlake and any other
Qualifying Party (as defined in the
Partnership Agreement) (each, a "Holder")
in connection with an Exchange (as
defined in the Partnership Agreement) under
the Partnership Agreement (the REIT
Shares to be issued to the Holders, the
"Registrable Shares").
NOW, THEREFORE, in consideration of the mutual promises and
covenants
set forth herein, the parties hereto hereby
agree as follows:
1. Mandatory Registration.
(a) Primary Registration Statement. Within twelve (12) months after
the
Closing Date (as defined in the
Contribution Agreement), Kimco shall file with
the U.S. Securities and Exchange Commission
(the "SEC) a registration statement
(a "Primary Registration Statement") under
Rule 415 of the Securities Act of
1933, as amended or any successor (the
"Securities Act"), covering the issuance
of the Registrable Shares to the Holders in
exchange for Limited Partnership
Interests, pursuant to Article 8 of the
Partnership Agreement.
(b) Resale Registration Statement. In the event that Kimco is
unable to
effect the registration of the Registrable
Shares under a Primary Registration
Statement, Kimco may elect to file with the
SEC a registration statement (a
"Resale Registration Statement") under Rule
415 of the Securities Act covering
the resale by the Holders of the
Registrable Shares received in exchange for
Limited Partnership Interests, pursuant to
Article 8 of the Partnership
Agreement.
(c) Effectiveness. Kimco shall use its commercially reasonable
efforts
to cause any Primary Registration Statement
or Resale Registration Statement
(each, a "Registration Statement") (i) to
be declared effective by the SEC as
soon as practicable after the filing
thereof, and (ii) to remain continuously
effective (subject to the limitations
contained herein) until the earlier of (A)
the tenth (10th) anniversary of the Closing
Date; and (B) such time as all the
Registrable Shares covered by a Primary
Registration Statement have been
distributed to the Holders or such time as
all the Registrable Shares covered by
a Resale Registration Statement have been
transferred by all the Holders in
transactions that constitute sales under
the Securities Act. Thereafter, Kimco
will be entitled to withdraw and terminate
the Registration Statement.
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2. Obligations
of Kimco.
(a) Compliance with Securities Laws. Kimco shall take such action
as
may be necessary so that (i) any
Registration Statement, the related prospectus
thereto, each amendment and supplement
thereto, and each report or other
document incorporated therein by reference
complies in all material respects
with the Securities Act, the Securities
Exchange Act of 1934, as amended (the
"Exchange Act"), and the respective rules
and regulations thereunder; (ii) any
Registration Statement and the related
prospectus thereto do not, when they
become effective, contain an untrue
statement of a material fact or omit to
state a material fact necessary to make the
statements therein not misleading in
light of the circumstances then existing;
and (iii) any Registration Statement
complies with the provisions of the
Securities Act with respect to the
disposition of all the Registrable Shares
covered by such Registration
Statement.
(b) Amendments and Supplements. Kimco shall (i) prepare and file
with
the SEC such amendments and supplements to
any Registration Statement and the
related prospectus as may be necessary to
comply with the provisions of the
Securities Act with respect to the offer
and sale of Registrable Shares; and
(ii) respond as promptly as practicable to
any comments received from the SEC
with respect to any Registration Statement
or any amendment thereto.
(c) Documents to be Furnished. Kimco shall furnish to each Holder
such
number of copies of the related prospectus,
including the preliminary
prospectus, in conformity with the
requirements of the Securities Act, and such
other documents as such Holder may
reasonably request in order to facilitate the
disposition of the Registrable Shares.
(d) Blue Sky. Kimco shall use its commercially reasonable efforts
to
register and qualify the Registrable Shares
covered by any Registration
Statement under such other securities or
"Blue Sky" laws of such jurisdictions
in the United States (i) as may be
necessary to effect the issuance by Kimco of
Registrable Shares to the Holders in
accordance with a Primary Registration
Statement or (ii) as may reasonably be
requested by any selling Holder in order
to effect the resale by such selling Holder
of Registrable Shares in accordance
with a Resale Registration Statement;
provided, that Kimco will not be required
in connection therewith or as a condition
thereto to qualify to do business,
subject itself to taxation or execute a
general consent to service of process in
any such states or jurisdictions where it
has not already done so.
(e) Exchange Listing. Kimco shall use its commercially
reasonable
efforts to cause all the Registrable Shares
to be supplementally listed (subject
to official notice of issuance) on the New
York Stock Exchange or any other
securities exchange on which similar
securities of Kimco are then listed.
(f) Stop Orders. Kimco shall use its commercially reasonable
efforts to
obtain the withdrawal of any SEC order
suspending the effectiveness of any
Resale Registration Statement.
(g) Notices. Kimco shall promptly notify each selling Holder of
Registrable Shares of (i) any notification
received by Kimco with respect to the
issuance by the SEC of any stop order
suspending the effectiveness of any Resale
Registration Statement or the initiation of
any proceedings for that purpose,
and (ii) any determination by Kimco to
delay the filing, or suspend the
effectiveness, of the Registration
Statement pursuant to Section 4(a).
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3. Obligations of Holders.
(a) General Obligations. It is a condition precedent to Kimco's
obligations under this Agreement that each
Holder must have (i) agreed in
writing to be bound by all the terms and
conditions of this Agreement; (ii)
promptly furnished to Kimco, in writing,
such Holder's name and address; and
(iii) promptly furnished to Kimco, in
writing, such other information relating
to such Holder as may be reasonably
requested by Kimco or as required by
applicable securities laws to complete any
Registration Statement and to effect
the registration of the Registrable
Shares.
(b) Resale Registration Statement Obligations. Upon the receipt of
any
notice from Kimco pursuant to Section 2(g),
each selling Holder shall
immediately cease all offers and sales of
Registrable Shares under any Resale
Registration Statement until such time that
Kimco gives the selling Holder
written authorization to resume offers and
sales under such Resale Registration
Statement. If the prospectus included in
any Resale Registration Statement has
been amended to comply with the
requirements of the Securities Act, no selling
Holder may make any offers or sales of
Registrable Shares under such Resale
Registration Statement other than by means
of such amended prospectus.
4. Delay or Suspension of Registration Statement.
(a) Delay or Suspension. Kimco may either (1) delay the filing
or effectiveness of any Registration
Statement or (2) suspend any Registration
Statement after effectiveness, in the event
that:
(i) Kimco determines that information required to be
included in such Registration Statement is
not yet available;
(ii) Kimco intends to file a registration statement
(other than a registration statement on
Form S-8 or its successor form);
(iii) there is an occurrence which causes the
prospectus included in the Registration
Statement, as then in effect, to contain
any untrue statement of a material fact or
to omit to state any material fact
necessary to make the statements therein
not misleading in light of the
circumstances then existing; or
(iv) Kimco is engaged in any activity, transaction or
any preparations or negotiations for any
activity or transaction that Kimco has
a bona fide business purpose to keep
confidential and Kimco determines that the
public disclosure requirements imposed on
Kimco under the Securities Act in
connection with such Registration Statement
would require the disclosure of such
activity, transaction, preparations or
negotiations;
provided, however, that Kimco (x) will
promptly notify the Holders of
Registrable Shares of the foregoing
determination to delay or suspend such
Registration Statement (but without
necessarily specifying the basis for such
determination) and (y) may not delay or
suspend such Registration Statement for
such reason more than twice in any twelve
(12) month period or for more than
sixty (60) days at any time.
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(b) Reinstatement. If Kimco delays or suspends a Registration
Statement pursuant to Section 4(a), Kimco
shall, as promptly as practicable
following the termination of the
circumstance entitling Kimco to do so (but in
no event more than sixty (60) days
thereafter), take such actions as may be
necessary to file or reinstate the
effectiveness of such Registration Statement.
If, as a result thereof, the prospectus
included in such Registration Statement
has been amended to comply with the
requirements of the Securities Act, Kimco
shall deliver to each Holder such amended
prospectus.
5. Expenses of Registration. In connection with any
Registration
Statement required to be filed hereunder,
Kimco shall pay any and all expenses
incurred in connection with any
registration, including: (i) all registration
and filing fees, (ii) fees and expenses of
compliance with federal securities
and state "Blue Sky" laws, (iii) printing
expenses, (iv) internal Kimco expenses
(including, without limitation, all
salaries and expenses of its officers and
employees performing legal or accounting
duties), (v) the fees and expenses
incurred in connection with the listing of
the Registrable Shares on the New
York Stock Exchange or any securities
exchange on which similar securities
issued by Kimco are then listed, (vi) fees
and disbursements of counsel for
Kimco and the independent public
accountants of Kimco, and (vii) the fees and
expenses of any experts retained by Kimco
in connection with such registration.
6. Indemnification.
(a) Indemnification by Kimco. To the extent permitted by law and
solely
with respect to a Resale Registration
Statement, Kimco shall indemnify and hold
harmless each selling Holder under a Resale
Registration Statement, its
officers, directors, agents and
representatives and each person, if any, who
"controls" a selling Holder within the
meaning of the Securities Act (each, a
"Holder Indemnitee"), against any and all
losses, claims, damages, or
liabilities (joint or several) to which any
of the foregoing person
