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EXHIBIT 10.2
REGISTRATION
RIGHTS AGREEMENT
dated
as of March 13, 2008
by
and among
URSTADT
BIDDLE PROPERTIES INC.
and
THE
INVESTORS REFERRED TO HEREIN
REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “ Agreement
”) dated as of March 13, 2008, is made by and among
Urstadt Biddle Properties Inc., a Maryland corporation (the
“ Company
”), and the Persons named on Schedule 1
as Investors (each a “ Investor
” and collectively, the “ Investors
”).
RECITALS
WHEREAS,
pursuant to that certain Investment Agreement dated as of
March 13, 2008, by and between WFC Holdings Corporation
(“ Wells
Fargo ”) and the Company (the “ Investment
Agreement ”), the Company issued and the
Investors purchased 2,400,000 shares of 8.50% Series E
Senior Cumulative Preferred Stock (the “ Series E
Preferred Stock ”) of the Company;
and
WHEREAS,
in connection therewith, the parties hereto desire to set
forth the Investors’ rights and the Company’s
obligation to cause the registration of the Series E Preferred
Stock pursuant to the Securities Act.
NOW,
THEREFORE, in consideration of the Investment Agreement, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1.
Definitions and Usage . As used in this Agreement
the following terms shall have the corresponding
meanings:
1.1
Definitions.
“
Commission
” shall mean the Securities and Exchange
Commission.
“
Continuously
Effective ”, with respect to a specified
registration statement, shall mean that it shall not cease to
be effective and available for Transfers of Registrable
Securities thereunder for longer than either (i) any
thirty (30) calendar days, or (ii) an aggregate of sixty
(60) calendar days during the two-year period specified in
Section
2.1(c) .
“
Demand
Registration ” shall have the meaning set forth
in Section 2.1
.
“
Exchange
Act ” shall mean the Securities Exchange Act of
1934.
“
Initiating
Investor ” shall have the meaning set forth in
Section 2.1
.
“
Investment
Agreement ” shall have the meaning set forth in
the Recitals
.
“
Investors
” shall mean the Persons named on Schedule 1
as Investors and Transferees of such Persons’
Registrable Securities with respect to the rights that such
Transferees shall have acquired in accordance with Section 8
, at such times as such Persons shall own Registrable
Securities.
“
Majority Selling
Investors ” means those Selling Investors whose
Registrable Securities included in a registration represent a
majority of the Registrable Securities of all Selling
Investors included therein.
“
Person
” shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or
government or other agency or political subdivision
thereof.
“
Register
”, “ registered
”, and “ registration
” shall refer to a registration effected by preparing
and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or
ordering by the Commission of effectiveness of such
registration statement or document.
“
Registrable
Securities ” shall mean, subject to Section
6.4 : (i) the 2,400,000 shares of Series E Preferred
Stock issued by the Company pursuant to the Investment
Agreement; and (ii) any security issued in exchange for or
otherwise in replacement of Series E Preferred Stock described
in clause (i) above; provided
, however ,
that Registrable Securities shall not include any securities
(x) which have theretofore been registered and sold pursuant
to a transaction registered under the Securities Act, (y)
which have been sold to the public pursuant to Rule 144 or any
similar rule promulgated by the Commission pursuant to the
Securities Act, or (z) which may be transferred pursuant to
Rule 144 without the requirement of a volume limitation, the
current public information requirement thereof or the manner
of sale requirement thereof.
“
Registrable
Securities then outstanding ” shall mean, with
respect to a specified determination date, the Registrable
Securities owned by all Investors on such date.
“
Registration
Expenses ” shall have the meaning set forth in
Section 4.1
.
“
Securities
Act ” shall mean the Securities Act of 1933, as
amended.
“
Selling
Investors ” shall mean, with respect to a
specified registration pursuant to this Agreement, Investors
whose Registrable Securities are included in such
registration.
“
Series E
Preferred Stock ” shall have the meaning set
forth in the Recitals
.
“
Transfer
” shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise),
assigning or otherwise disposing of (other than pledging,
hypothecating or otherwise transferring as security) (and
correlative words shall have correlative meanings);
provided
however ,
that any transfer or other disposition upon foreclosure or
other exercise of remedies of a secured creditor after an
event of default under or with respect to a pledge,
hypothecation or other transfer as security shall constitute a
“Transfer”.
“
Violation
” shall have the meaning set forth in Section 5.1
.
1.2
Usage .
(a)
References
to a Person are also references to its assigns and successors in
interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the
case may be).
(b)
References
to Registrable Securities “owned” by an Investor shall
include Registrable Securities beneficially owned by such Person
but which are held of record in the name of a nominee, trustee,
custodian, or other agent, but shall exclude the Series E Preferred
Stock held by a Investor in a fiduciary capacity for customers of
such Person.
(c)
References
to a document are to it as amended, waived and otherwise modified
from time to time and references to a statute or other governmental
rule are to it as amended and otherwise modified from time to time
(and references to any provision thereof shall include references
to any successor provision).
(d)
References
to Sections or to Schedules or Exhibits are to sections hereof or
schedules or exhibits hereto, unless the context otherwise
requires.
(e)
The
definitions set forth herein are equally applicable both to the
singular and plural forms and the feminine, masculine and neuter
forms of the terms defined.
(f)
The
term “including” and correlative terms shall be deemed
to be followed by “without limitation” whether or not
followed by such words or words of like import.
(g)
The
term “hereof” and similar terms refer to this Agreement
as a whole.
(h)
The
“date of” any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 10.2
.
2.
Demand Registration .
2.1
If
the Company shall receive on or after the date that is nine (9)
months following the date hereof a written request from the holders
of a majority of the Registrable Securities then outstanding
(“ Initiating
Investors ”) that the Company file a registration
statement under the Securities Act for an offering of the
Registrable Securities on a continuous basis pursuant to Rule 415
under the Securities Act (a “ Demand
Registration ”), covering the registration of
Registrable Securities with an aggregate offering price, net of any
placement agent fees, broker’s fees, and commissions on
similar discounts, fees or commissions, of at least $5 million,
then the Company shall, within ten (10) days of the receipt
thereof, give written notice of such request to all holders of the
Registrable Securities and shall, subject to the limitation of this
Section
2.1 , use its reasonable best efforts to effect as soon as
practicable, and in any event within ninety (90) days of the
receipt of such request, the registration under the Securities Act
of all Registrable Securities which the holders request to be
registered within twenty (20) days of the mailing of such notice by
the Company. Any request made pursuant to this
Section 2.1
shall be addressed
to
the attention of the Secretary of the Company and shall
specify the number of Registrable Securities to be registered,
the intended methods of disposition thereof which shall not
include any underwritten, agency or similar method and that
the request is for a Demand Registration pursuant to this
Section 2.1
. In connection with the Demand Registration, the
Company shall:
(a)
Be
entitled to postpone for up to ninety (90) days from the date
of request of the Initiating Investor the filing of any Demand
Registration statement otherwise required to be prepared and filed
pursuant to Section 2.1
, if the board of directors of the Company determines, in its good
faith reasonable judgment, that such registration and the Transfer
or Registrable Securities contemplated thereby would materially
interfere with, or require premature disclosure of, any financing,
acquisition or reorganization involving the Company or any of its
wholly owned subsidiaries and the Company promptly gives the
Initiating Investors notice of such determination;
(b)
Use
its reasonable best efforts to have the registration declared
effective under the Securities Act as soon as reasonably
practicable, and in any event within ninety (90) days of the
receipt of the request for the registration, giving due regard to
the need to prepare current financial statements, conduct due
diligence and complete other actions that are reasonably necessary
to effect a registered public offering;
(c)
Use
its reasonable best efforts to keep the relevant registration
statement Continuously Effective for the lesser of two (2) years or
until such time as all holders who included Registrable Securities
in the Registration Statement no longer hold any Registrable
Securities (the “ Registration
Period ”). Notwithstanding the foregoing,
if for any reason the effectiveness of a registration pursuant to
this Section 2
is suspended or postponed, the foregoing period shall be extended
by the aggregate number of days of such suspension or postponement;
and
(d)
Be
obligated to effect no more than one (1) Demand
Registration. For purposes of the preceding sentence,
registration shall not be deemed to have been effected
(i) unless a registration statement with respect thereto has
become effective, or (ii) if after such registration statement
has become effective, such registration or the related offer, sale
or distribution of Registrable Securities thereunder is interfered
with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason
not attributable to the Selling Investors and such interference is
not thereafter eliminated.
2.2
A
registration pursuant to this Section 2
shall be on such appropriate registration form of the Commission as
shall (i) be selected by the Company and be reasonably
acceptable to the Majority Selling Investors and (ii) permit
the disposition of the Registrable Securities in accordance with
the intended method of disposition specified in Section 2.1
.
2.3
The
Company shall furnish to one firm of counsel for the Selling
Investors (selected by Majority Selling Investors) copies of the
filed registration statement or prospectus or any amendments or
supplements thereto in the form substantially as proposed to be
filed with the Commission at least five (5) business days prior to
filing for review and comment by such counsel, which opportunity to
comment shall include the right to contest disclosure if
the
applicable
Selling Investor reasonably believes that such disclosure
contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not
misleading.
2.4
The
Company shall prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act and
rules thereunder with respect to the disposition of all securities
covered by such registration statement. The Company
shall amend the registration statement or supplement the prospectus
so that it will remain current and in compliance with the
requirements of the Securities Act for the Registration Period, and
if during such period any event or development occurs as a result
of which the registration statement or prospectus contains a
misstatement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, the Company shall promptly notify each
Selling Investor, amend the registration statement or supplement
the prospectus so that each will thereafter comply with the
Securities Act and furnish to each Selling Investor of Registrable
Securities such amended or supplemented prospectus, which each such
Investor shall thereafter use in the Transfer of Registrable
Securities covered by such registration
statement. Pending such amendment or supplement each
such Investor shall cease making offers or Transfers of Registrable
Securities pursuant to the prior prospectus. In the
event that any Registrable Securities included in a registration
statement subject to, or required by, this Agreement remain unsold
at the end of the period during which the Company is obligated to
use its reasonable best efforts to maintain the effectiveness of
such registration statement, the Company may file a post-effective
amendment to the registration statement for the purpose of removing
such Securities from registered status.
2.5
The
Company shall furnish to each Selling Investor of Registrable
Securities, without charge, such numbers of copies of the
registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary
prospectus and any amendments or supplements thereto, in each case
in conformity with the requirements of the Securities Act and the
rules thereunder, and such other related documents as any such
Selling Investor may reasonably request in order to facilitate the
disposition of Registrable Securities owned by such Selling
Investor.
2.6
The
Company shall use its reasonable best efforts (i) to register
and qualify the securities covered by such registration statement
under such other securities or Blue Sky laws of such states or
jurisdictions as shall be reasonably requested by the Majority
Selling Investors, and (ii) to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or
the lifting of any suspension of the qualification (or exemption
from qualification) of the offer and transfer of any of the
Registrable Securities in any jurisdiction, at the earliest
possible moment; provided ,
however , that
the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business, subject itself to
taxation in any such states or jurisdictions or to file a general
consent to service of process in any such states or
jurisdictions.
2.7
The
Company shall promptly notify each Selling Investor of any stop
order issued or threatened to be issued by the Commission in
connection therewith (and take all reasonable actions required to
prevent the entry of such stop order or to remove it if
entered).
2.8
The
Company shall make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a)
of the Securities Act no later than ninety (90) days after the end
of the twelve (12)-month period beginning with the first month of
the Company’s first fiscal quarter commencing after the
effective date of each registration statement filed pursuant to
this Agreement.
2.9
The
Company shall make available for inspection by any Selling Investor
and the representatives of such Selling Investor (but not more than
one firm of counsel to such Selling Investors), all financial and
other information as shall be reasonably requested by them, and
provide the Selling Investor and the representatives of such
Selling Investor the opportunity to discuss the business affairs of
the Company with its principal executives and independent public
accountants who have certified the audited financial statements
included in such registration statement, in each case, as shall be
necessary to enable them to exercise their due diligence
responsibility under the Securities Act; provided ,
however , that
information that the Company determines, in good faith, to be
confidential and which the Company advises such Person in writing,
is confidential shall not be disclosed unless such Person signs a
confidentiality agreement reasonably satisfactory to the Company or
the related Selling Investor of Registrable Securities agrees to be
responsible for such Person’s breach of confidentiality on
terms reasonably satisfactory to the Company.
2.10
The
Company shall provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by such
registration stateme
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