<PAGE>
As filed with the Securities and Exchange Commission on December 17, 1998
REGISTRATION STATEMENT NO. _________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
BRADLEY REAL ESTATE, INC.
(Exact name of Registrant as specified in its charter)
MARYLAND 04-6034603
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
40 SKOKIE BOULEVARD, SUITE 600
NORTHBROOK, ILLINOIS 60062-1626
(847) 272-9800
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
_______________________________
THOMAS P. D'ARCY
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
BRADLEY REAL ESTATE, INC.
40 SKOKIE BOULEVARD, SUITE 600
NORTHBROOK, ILLINOIS 60062-1626
(847) 272-9800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
copy to:
WILLIAM B. KING, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
_____________________________
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Being Offering Price Per Aggregate Offering Amount of
Registered Amount to be Registered Share(1) Price(1) Registration Fee(2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share 1,212,630 19.78 $23,987,338 $5,125
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended, based
upon the average of the high and low sales prices on the New York Stock
Exchange on December 11, 1998.
(2) Pursuant to Rule 429 under the Securities Act of 1933, as amended, 281,300
shares covered by the earlier Registration Statement on Form S-3 (No. 333-
42357) are being carried forward and the corresponding registration fee of
$1,650 was previously paid at the time of filing.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
================================================================================
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ +
+ The information in this prospectus is not complete and may be changed. +
+ We may not sell these securities until the registration statement filed +
+ with the Securities and Exchange Commission is effective. This +
+ prospectus is not an offer to sell these securities and it is not +
+ soliciting an offer to buy these securities in any state where the +
+ offer or sale is not permitted. +
+ +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion December 17, 1998
PROSPECTUS
- ----------
1,212,630 SHARES
BRADLEY REAL ESTATE, INC.
COMMON STOCK
____________
We are a fully integrated real estate investment trust that owns and
operates community and neighborhood shopping centers in the Midwest region of
the United States. We conduct substantially all of our business through Bradley
Operating Limited Partnership. We are the sole general partner of, and own
approximately 94% of the economic interests in this partnership.
This Prospectus relates to 1,212,630 shares of common stock that we may
issue to certain holders of limited partnership units in Bradley Operating
Limited Partnership upon redemption of their units, as more fully described in
this Prospectus. Bradley Operating Limited Partnership originally issued the
units to these holders in exchange for the contribution of their interests in
certain properties to Bradley Operating Limited Partnership. We are filing the
registration statement of which this Prospectus is a part to fulfill our
contractual obligations to these holders and provide the holders of the shares
with freely tradable securities.
Under the terms of the Second Restated Agreement of Limited Partnership of
Bradley Operating Limited Partnership, holders of limited partnership units have
the right to tender their units for cash, subject to certain restrictions. In
lieu of delivering cash, however, we may elect to issue shares of common stock
to any such holder in exchange for their limited partnership units on a one-for-
one basis, subject to certain adjustments. Whether we issue the shares offered
hereby depends on whether, and to what extent, these holders of up 1,212,630
partnership units tender their units for redemption and we elect to issue shares
rather than to pay cash. The registration of these shares does not necessarily
mean that the holders will tender their units or that, if they do, they will
offer or sell the shares.
Our common stock trades on the New York Stock Exchange under the symbol
"BTR." To ensure that we maintain our qualification as a real estate investment
trust for federal income tax purposes, our charter generally limits ownership of
common stock by any person or affiliated group to 9.8% of the total common stock
by number or value, with certain exceptions. See "Restrictions on Transfers."
We will not receive any proceeds from the issuance of the shares of common
stock offered hereby. We have also agreed to bear certain expenses of
registration of these shares under federal and state securities laws.
____________________
Investing in shares of our common stock involves various risks. In
considering whether to redeem limited partnership units in Bradley Operating
Limited Partnership for shares of common stock, you should carefully consider
the matters discussed under "Risk Factors" beginning on page 5 of the
Prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this Prospectus is truthful or complete. It is illegal for any person to tell
you otherwise.
____________________
The date of this Prospectus is December __, 1998
<PAGE>
AVAILABLE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information electronically with the SEC. You may read and copy any of the
reports, statements or other information that we file with the SEC at the SEC's
Public Reference Room at 450 Fifth Street, N.W., in Washington, D.C. Please call
the SEC at 1-800-SEC-0330 for further information on the Public Reference Room.
Our SEC filings are also available from the New York Stock Exchange, 20 Broad
Street, New York, NY 10005 and from the Internet site maintained by the SEC at
http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Prospectus is part of a registration statement we filed with the SEC to
register the shares offered in this Prospectus. It does not repeat important
information that you can find in our registration statement or in the reports
and other documents that we file with the SEC. The SEC allows us to
"incorporate by reference" the information we file with them. This means that we
can disclose important information to you by referring you to other documents
that are legally considered to be part of this Prospectus, and later information
that we file with the SEC will automatically update and supersede the
information in this Prospectus and the documents listed below.
We incorporate by reference the documents listed below, and any future
filings made with the SEC under Section 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we sell all the shares of common stock
offered in this Prospectus:
. the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
. the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
. the Company's Proxy Statement dated March 31, 1998 with respect to its
Annual Meeting of Stockholders on May 14, 1998;
. the Company's current reports on Form 8-K filed on January 28, 1998,
February 20, 1998, June 2, 1998, June 17, 1998, June 24, 1998, August 7,
1998, September 24, 1998, September 29, 1998 and December 16, 1998; and
. the description of the Company's Common Stock contained or incorporated
by reference in the Company's Registration Statement on Form 8-A, filed
August 8, 1994, including any amendments thereto.
You may request a copy of these documents incorporated by reference, but not
the exhibits filed with these documents unless those exhibits are specifically
referred to, at no cost by writing or telephoning us at the following address:
attention: Ms. Marianne Dunn, Senior Vice President, Bradley Real Estate, Inc.,
40 Skokie Boulevard, Suite 600, Northbrook, Illinois 60062-1626, telephone (847)
272-9800.
2
<PAGE>
PROSPECTUS SUMMARY
This summary only highlights the more detailed information appearing
elsewhere in this Prospectus or incorporated herein by reference. As this is a
summary, it may not contain all information that is important to you. You
should read this entire Prospectus carefully before deciding whether to tender
your units of limited partnership interest for redemption.
SOME IMPORTANT TERMS
Although Bradley Real Estate, Inc., Bradley Operating Limited Partnership
and their subsidiaries and affiliated partnerships are separate legal entities,
for ease of reference, the terms "we," "us," and "ours" refer to the business
and properties of all of these entities, unless the context indicates otherwise.
For ease of reference and clarity, we sometimes refer to Bradley Real Estate,
Inc. and its predecessor, subsidiaries and affiliated partnerships as the
"Company" and Bradley Operating Limited Partnership and its subsidiaries and
affiliated partnerships as the "Operating Partnership." References in this
Prospectus to "Units" refer to units of limited partner interest of Bradley
Operating Limited Partnership not designated as belonging to any specific class.
We sometimes refer to a real estate investment trust as a "REIT" in this
Prospectus.
____________________
THE COMPANY
Bradley Real Estate, Inc. is a fully-integrated real estate operating
company that owns and operates community and neighborhood shopping centers in
the Midwest region of the United States. As of December 1, 1998, the Company
owned 97 properties in 16 states, aggregating approximately 15.6 million square
feet of gross leasable area or GLA. Title to such properties is held by or for
the benefit of the Operating Partnership. The Company conducts substantially
all of its business through the Operating Partnership. The Company is the sole
general partner and the owner of approximately 94% of the economic interests in
the Operating Partnership.
The Company is incorporated under the laws of the State of Maryland. Its
offices are located at 40 Skokie Boulevard, Suite 600, Northbrook, Illinois
60062-1626. Its telephone number is (847) 272-9800.
SECURITIES TO BE OFFERED
This Prospectus relates to the possible issuance of up to 1,212,630 shares
of common stock that may be issued by the Company to certain holders of an
aggregate of 1,212,630 Units upon redemption of their Units. The Operating
Partnership originally issued these Units to the equity holders of Lexington
Holding Company, Baken Park Partners Limited Partnership, County Line 31
Company, L.P. and Spring Mall Associates Limited Partnership in exchange for the
contribution of their interests in certain properties to the Operating
Partnership. In connection with these property contributions, the Company
entered into registration rights agreements with the contributors. The Company
is registering the shares covered by this Prospectus in order to fulfill its
contractual obligations under these agreements and provide the holders of the
shares with freely tradable securities. Registration of these shares does not
necessarily mean that all or any portion of the shares will be issued by the
Company.
Pursuant to the Second Restated Agreement of Limited Partnership of the
Operating Partnership, Unitholders may tender their Units to the Operating
Partnership for cash equal to the value of an equivalent number of shares of
common stock (subject to certain adjustments to prevent dilution). In lieu of
delivering cash, however, the Company may, at its option, choose to acquire any
Units so tendered by issuing shares of common stock in exchange for the Units.
The shares will be exchanged for Units on a one-for-one basis (subject to
certain adjustments to prevent dilution).
The Company will not receive any cash proceeds from the issuance of any
shares of common stock offered under this Prospectus. With each such
acquisition, however, the Company's economic interest in the Operating
Partnership will increase.
3
<PAGE>
RISK FACTORS
An investment in common stock involves various risks. In considering
whether to redeem your Units, you should carefully consider the matters
discussed under "Risk Factors" which begins on page 5 of this Prospectus.
TAX STATUS OF THE COMPANY
The Company has elected to qualify as a REIT under Sections 856 through 860
of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"),
in each year since its organization in 1961 and is the nation's oldest
continuously qualified REIT. As long as it qualifies for taxation as a REIT,
the Company generally will not be subject to federal income tax on that portion
of its ordinary income and capital gains that is currently distributed to its
stockholders. Even if we qualify for taxation as a REIT, we may be subject to
certain state and local taxes on its income and property and to federal income
and excise taxes on its undistributed income. See "Risk Factors--Adverse
Consequences of Failure to Qualify as a REIT" and "Federal Income Tax
Considerations" for a more detailed explanation.
4
<PAGE>
RISK FACTORS
FORWARD LOOKING INFORMATION
Statements made in this Prospectus or in the documents incorporated by
reference include forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934. Also, documents we subsequently file with the Commission and incorporated
by reference will contain forward-looking statements. These statements include,
among other things, statements regarding the intent, belief or expectations of
the Company and its directors and officers with respect to:
. the declaration or payment of distributions by the Company,
. potential acquisitions or dispositions of properties, assets or other
public or private companies by the Company,
. the policies of the Company regarding investments, indebtedness,
acquisitions, dispositions, financings, conflicts of interest and other
matters,
. the Company's qualification as a REIT under the Internal Revenue Code,
. the retail industry and real estate markets in the Midwest and in
general,
. the availability of debt and equity financing,
. interest rates,
. general economic conditions, and
. trends affecting the Company's financial condition or results of
operations.
You are cautioned that, while forward-looking statements reflect the
Company's good faith beliefs, they are not guarantees of future performance and
involve known and unknown risks and uncertainties, and that actual results may
differ materially from those in the forward-looking statements as a result of
various factors. In addition, the Company disclaims any obligation to publicly
update or revise any forward-looking statement, whether as a result of new
information, future events or otherwise.
TAX CONSEQUENCES OF EXCHANGE TO HOLDERS OF UNITS
A Unitholder Who Redeems Units for Common Stock May Have Adverse Tax
Consequences
If you redeem or exchange Units for cash or shares of stock, you will
recognize gain or loss because the redemption and exchange are considered fully
taxable sales of your Units. You will be treated as realizing for tax purposes
an amount equal to the sum of the cash received or the value of the shares
received in the exchange plus the amount of any Operating Partnership
liabilities allocable to the exchanged Units at the time of the redemption or
exchange. It is possible that the amount of gain recognized or even the tax
liability resulting from such gain could exceed the amount of cash and the value
of the shares received upon such disposition. See "Description of Units and
Redemption of Units--Tax Consequences of Redemption." In addition, your ability
to sell a substantial number of shares in order to raise cash to pay tax
liabilities associated with the redemption of your Units may be limited as a
result of fluctuations in the market price of our common stock. The price you
receive for such shares may not equal the value of your Units at the time of
redemption or exchange.
5
<PAGE>
If we do not exercise our right to acquire Units tendered for redemption in
exchange for shares of common stock, and such Units are redeemed by the
Operating Partnership for cash, then the tax consequences may differ. See
"Description of Units and Redemption of Units."
If a Unitholder Redeems Units, the Original Receipt of the Units May Be
Subject to Tax
Your original receipt of the Units may be treated as a taxable sale under
the "disguised sale" rules of the Internal Revenue Code if you redeem your
Units, particularly within two years of receiving them. Subject to several
exceptions, the tax law generally provides that a partner's contribution of
property to a partnership and a simultaneous or subsequent transfer of money or
other consideration from the partnership to the partner will be presumed to be a
taxable sale. In particular, if money or other consideration is transferred by
a partnership to a partner within two years of the partner's contribution of
property, the transactions are presumed to be a taxable sale of the contributed
property unless the facts and circumstances clearly establish that the transfers
are not a sale. On the other hand, if two years have passed between the
original contribution of property and the transfer of money or other
consideration, the transactions will not be presumed to be a taxable sale unless
the facts and circumstances clearly establish that they should be. You should
consult your own tax advisor regarding your personal situation prior to
tendering Units for redemption.
Potential Change in Nature of Investment Upon Redemption of Units
If you exercise your right to redeem all or a portion of your Units, then
you may receive cash or, at our option, shares of common stock in exchange for
your Units. If you receive cash, then you will (except to the extent you do not
tender all of your Units):
. no longer have any interest in the Company;
. not benefit from any subsequent increases in the price of the Units or
shares of our common stock; and
. not receive any future distributions from the Company.
If you receive common stock, you will become a stockholder of the Company
rather than a holder of Units in the Operating Partnership. Although
substantially economically similar, an investment in shares of common stock
differs in important ways from an investment in Units of the Operating
Partnership, such as, among other things, form of organization, management
structure, voting rights, liquidity and federal income taxation. These
differences, some of which may be material to investors, are discussed in
"Description of Units and Redemption of Units--Comparison of Ownership of Units
and Common Stock."
FAILURE TO EFFECTIVELY MANAGE GROWTH
We have grown aggressively over the past few years and continue to
experience growth. The failure to effectively manage such growth, or to
successfully integrate acquired properties into our operations, could have
material adverse effect on our operating results and financial condition.
During 1997, we acquired 25 shopping centers aggregating over 3.1 million square
feet of GLA for an aggregate acquisition price of approximately $189.3 million.
On August 6, 1998, we completed the merger acquisition of Mid-America Realty
Investments, Inc., a real estate investment trust owning interests in 25
properties aggregating approximately 3.3 million square feet primarily located
in the Midwest region of the United States. In addition to property interests
acquired in connection with the merger acquisition of Mid-America Realty
Investments, from January 1, 1998 through December 1, 1998, we acquired 21
properties and two outlots adjacent to one of our existing properties,
aggregating 2.8 million square feet of GLA for an aggregate acquisition price of
approximately $198.9 million. We have also entered into a contract to acquire
an additional shopping center representing approximately 186,000 square feet of
GLA, which we believe will close, for an estimated price of approximately
$3.9 million.
6
<PAGE>
UNCERTAINTY OF MEETING ACQUISITION OBJECTIVES; ACQUIRED PROPERTIES MAY NOT MEET
OUR EXPECTATIONS
As an important part of our business strategy, we continually seek
prospective acquisitions of additional shopping centers and portfolios of
shopping centers. Notwithstanding our adherence to our criteria for evaluation
and due diligence regarding potential acquisitions, we cannot guarantee that any
acquisition that is consummated will meet our expectations. We target shopping
centers and portfolios which we believe can be purchased at attractive initial
yields and/or which demonstrate the potential for revenue and cash flow growth
through implementation of renovation, expansion, re-tenanting and re-leasing
programs similar to those undertaken with respect to some of our existing
properties. When we acquire a shopping center, we expose ourselves to the risk
that our investment will fail to generate expected returns or that our desired
improvement programs will cost more than expected. In addition, we cannot
guarantee that we will ultimately make any potential acquisition that we may
evaluate. The evaluation process involves non-recoverable costs in the case of
acquisitions which are not consummated.
RISKS RELATED TO INDEBTEDNESS
No Limitation on Debt
Our organizational documents do not limit the amount of indebtedness that we
or the Operating Partnership may incur. Although we attempt to maintain a
balance between total outstanding indebtedness and the value of our portfolio
(i.e., a ratio of debt and preferred stock to Real Estate Value of 50% or less,
with "Real Estate Value" defined as net operating income divided by 10.25%), we
could alter this balance at any time. If we become more highly leveraged, then
the resulting increase in debt service could adversely affect our ability to
make expected distributions to our stockholders and make payments on our
outstanding indebtedness. If we default on our obligations under any
outstanding indebtedness, we could lose our interest in any properties that
secure that indebtedness.
Risk of Rising Interest Rate
Our revolving credit facility carries a floating interest rate that will
rise if market interest rates rise. Any such increase in debt service
requirements will adversely affect our net income and cash available for
distribution to our stockholders.
Effect on Stock Price and Ability to Raise Capital
The foregoing risks associated with our debt obligations may also adversely
affect the market price of our common stock. A decrease in the market price of
our common stock may inhibit our ability to raise capital and issue equity in
both the public and private markets and thereby adversely affect any plans for
future growth.
REAL ESTATE INVESTMENT CONSIDERATIONS
General
Real property investments are subject to varying types and degrees of risk
that may hinder or otherwise affect their ability to generate revenues. As a
result, our cash flow and cash available for distributions to stockholders may
be adversely affected. The following factors, among others, may adversely
affect real estate values and our ability to generate revenues:
. changes in the general economic climate;
. local conditions (such as an oversupply of space or a reduction in
demand for real estate in an area);
7
<PAGE>
. the quality and philosophy of management;
. competition from other available space;
. the ability of the owner to provide adequate maintenance;
. insurance and variable operating costs;
. government regulations;
. changes in interest rate levels;
. the availability of financing and
. potential liability due to changes in environmental and other laws.
Illiquidity of Real Estate
Real estate investments are relatively illiquid and therefore will tend to
limit our ability to react promptly in response to changes in economic or other
conditions. In addition, the Internal Revenue Code limits a REIT's ability to
make sales of properties held for fewer than four years, which may affect our
ability to sell properties without adversely affecting returns to stockholders.
Economic Trends in the Midwest and/or the Retail Industry May Affect Cash
Available for Distribution
Substantially all of our properties are located in the Midwestern region of
the United States. Adverse economic developments in this area could adversely
impact the operations of our properties and therefore our profitability. The
concentration of properties in one region may expose us to risks of adverse
economic developments which are greater than if our portfolio were more
geographically diverse.
Our properties consist predominantly of community and neighborhood shopping
centers catering to retail tenants. Our performance therefore is linked to
economic conditions in the market for retail space generally. The market for
retail space has been or could be adversely affected by:
. the ongoing consolidation in the retail sector;
. the adverse financial condition of certain large companies in this
sector;
. the excess amount of retail space in certain markets; and
. increasing consumer purchases through catalogues or the internet.
To the extent that these conditions impact the market rents for retail space, we
could experience a reduction of cash receipts and cash available for
distribution. Such a reduction would have a corresponding effect on the amount
of distributions we can make to our stockholders.
In addition, the value of our common stock may be negatively impacted to the
extent that the investing public has a negative perception of the retail sector.
As a result, our common stock may trade at a discount below the inherent value
of our assets as a whole.
8
<PAGE>
Financial Condition of Tenants May Affect Cash Available for Distribution;
Tenants in Bankruptcy May Not Make Timely Rental Payments
Our cash receipts and cash available for distribution would be adversely
affected if a significant number of tenants were unable to meet their
obligations to us. A tenant may experience a downturn in its business which may
weaken its financial condition and result in a reduction or failure to make
rental payments when due. If a lessee or sublessee defaults in its obligations
to us, then we may experience delays in being able to enforce our right as
lessor or sublessor. In addition, we may incur substantial costs and experience
significant delays associated with protecting our investment, including costs
incurred in renovating and releasing the property.
At any time, one or more of our tenants may seek the protection of the
bankruptcy laws, which could result in the rejection and termination of their
lease. Such an event could cause a reduction of cash receipts and cash
available for distribution and thus affect the amount of distributions we can
make to our stockholders. We are subject to risks that:
. any present tenant which has filed for bankruptcy protection will not
continue making payments under its lease;
. any tenant may file for bankruptcy protection in the future; or
. any tenants that files for bankruptcy protection may not continue to
make rental payments in a timely manner.
Vacancies and Lease Renewals May Reduce Cash Available for Distribution
We continually have tenant leases expiring at our properties. Some lease
expirations provide us with the opportunity to increase rentals or to hold the
space available for a stronger long-term tenancy. In other cases, the space may
not generate strong demand for tenancy. As a result, the space may remain
vacant for a longer period than anticipated or may be able to be re-leased only
at less favorable rents. In such situations, we may be subject to competitive
and economic conditions over which we have no control. Accordingly, we can give
no assurance that the effects of possible vacancies or lease renewals at such
properties will not reduce our rental income and cash available for distribution
below levels we anticipate.
Development Activities
To the extent that we enter into agreements to acquire newly developed
shopping centers when they are completed, or acquire newly developed shopping
centers, we will be subject to risks inherent in acquiring newly constructed
centers, which could carry a higher level of risk than the acquisition of
existing properties with a proven performance record. These risks include,
among others:
. the risk that funds will be expended and management time will be
devoted to projects which may not come to fruition;
. the risk that occupancy rates and rents at a completed project will be
less than anticipated; and
. the risk that expenses at a completed development will be higher than
anticipated.
These risks may adversely affect our results of operations and ability to
make distributions to our stockholders.
9
<PAGE>
Possible Environmental Liabilities and Related Costs of Remediation May
Reduce Cash Available for Distribution or Reduce Value of the Property
Under various federal, state and local laws, ordinances and regulations,
current or former owners of real estate are liable for the costs of removal or
remediation of certain hazardous or toxic substances on or in such property.
Such laws often impose liability without regard to whether the owner knew of, or
was responsible for, the presence of such hazardous or toxic substances. The
presence of such substances, or the failure to properly remediate such
substances, may adversely affect the owner's ability to sell or rent such
property or to use such property as collateral in its borrowings. All of our
properties have been subjected to Phase I or similar environmental audits (which
involve inspection without soil sampling or ground water analysis) by
independent environmental consultants. We are not aware of any environmental
liability with respect to our properties that we believe would have a material
adverse effect on our business, assets or results of operations taken as a
whole. We have no assurance, however, that existing environmental studies with
respect to our properties revealed all environmental liabilities or that a prior
owner of any such property did not create any material environmental condition
not known to us.
Possible Adverse Consequences of Limitations on Insurance
We carry comprehensive general liability coverage and umbrella liability
coverage on all of our properties. Our insurance has limits of liability which
we believe are customary for similar properties and adequate to insure against
liability claims and provide for cost of defense. Similarly, we are insured
against the risk of direct physical damage in amounts we estimate to be adequate
to reimburse us on a replacement basis for costs incurred to repair or rebuild
each property, including loss of rental income during the reconstruction period.
Currently, we also insure the properties for loss caused by earthquake or flood
in the aggregate amount of $10 million per occurrence. Because of the high cost
of this type of insurance coverage and the wide fluctuations in price and
availability, we determined that the risk of loss due to earthquake and flood
does not justify the cost to increase coverage limits any further under current
market conditions. It is possible that we may experience losses which exceed
the limits of our insurance coverage or which may be uninsured.
COMPETITION COULD ADVERSELY AFFECT ABILITY TO RENT SPACE, AMOUNT OF RENTS
CHARGED OR DEVELOPMENT AND ACQUISITION OPPORTUNITIES
Numerous other retail properties and real estate companies compete with us
for tenants, development and acquisition opportunities within the market area of
each of our properties. Some of these competitors have greater resources than
we do. The competition from these retail properties and real estate companies
in such areas could have a material effect on:
. our ability to rent space at our properties and the amount of rents
charged; and
. our ability to take advantage of development and acquisition
opportunities.
RISKS RELATING TO YEAR 2000 COMPLIANCE
Many existing computer software programs and operating systems were designed
such that the year 1999 is the maximum date that many computer systems will be
able to process dates accurately. In the conduct of our own operations, we rely
upon commercial computer software primarily provided by independent software
vendors, and have undertaken an assessment of our vulnerability to the so-called
"Year 2000 issue" with respect to our computer systems. After an analysis of
our potential exposure, we believe that such commercial software is
substantially Year 2000 compliant and that such independent vendors will be able
to complete any additional work to ensure Year 2000 compliance in a timely
manner and without any material impact on our business, operations or financial
condition . We can, however, give no assurance that any material impact on us
as a result of any noncompliance will not occur. Our assessment is based upon
formal and informal communications with the software vendors, literature
10
<PAGE>
supplied with the software, literature supplied in connection with maintenance
contracts, and test evaluations of the software. At this time we are not aware
of any tenant, supplier or any other party with whom we do a significant amount
of business that we anticipate will have a Year 2000 compliance issue that will
have a materially adverse effect on us or our operations. In the event that any
such tenant, supplier or other party does experience a Year 2000 compliance
issue, there may be a material impact on our business, operations or financial
condition. Although we believe that we will be able to adopt appropriate
contingency plans to deal with any Year 2000 compliance issues that we or any
other party with whom we have significant relationships may experience as we
continue our Year 2000 assessment and testing, we can not be certain at this
time that our contingency plans will be effective.
CERTAIN PROVISIONS IN ORGANIZATIONAL DOCUMENTS MAY DISCOURAGE ACQUISITION
PROPOSALS
Certain Provisions of Our Charter and Bylaws
Certain provisions contained in our charter and bylaws may discourage third
parties from making proposals to acquire us, even if some of our stockholders
might consider the proposal to be in their best interest. These provisions
include the following:
. Our charter provides for three classes of Directors with the term of
office of one class expiring each year, commonly referred to as a
"staggered board." By preventing stockholders from voting on the
election of more than one class of directors at any annual meeting of
stockholders, this provision may have the effect of keeping the current
members of our Board of Directors in control for a longer period of time
than stockholders may desire.
. Our bylaws provide that the holders of not less than 25% of the
outstanding shares of common stock may call a special meeting of our
stockholders. This provision could make it more difficult for a
stockholder to call a meeting for the purposes of approving a change of
control without the support of the Board of Directors.
. Our charter authorizes the Board to issue up to 20 million shares of
preferred stock without stockholder approval and to reclassify any
unissued shares of stock as a different class or series in the Board's
discretion. Our Board's ability to issue preferred stock without
stockholder approval, and to establish the preferences and rights of any
class or series issued, could allow the Board to issue one or more
classes or series of preferred stock that would discourage or delay a
tender offer or change in control.
. Our charter generally limits any holder from acquiring more than 9.8%
of the value or number of our outstanding common stock. While this
provision is intended to assure our ability to remain a qualified REIT
for income tax purposes, the ownership limits may also limit the
opportunity for stockholders to receive a premium for their shares of
common stock that might otherwise exist if an investor were attempting
to assemble a block of shares in excess of 9.8% of the outstanding
shares of common stock or otherwise effect a change in control.
ADVERSE CONSEQUENCE OF FAILURE TO QUALIFY AS A REIT AND OTHER TAX RISKS
We Believe, But Cannot Guarantee, That We Qualify as a REIT
We believe that we have operated in a manner that permits us to qualify as a
REIT under the Internal Revenue Code for each taxable year since our formation
in 1961. Qualification as a REIT, however, involves the application of highly
technical and complex Internal Revenue Code provisions for which there are only
limited judicial or administrative interpretations. In addition, REIT
qualification involves the determination of various factual matters and
circumstances not entirely within our control. For example, in order to qualify
as a REIT, at least 95% of our gross income in any year must be derived from
qualifying
11
<PAGE>
sources and we must distribute annually to stockholders 95% of our REIT taxable
income (excluding net capital gains). As a result, although we believe that we
are organized and operating in a manner that permits us to remain qualified as a
REIT, we cannot guarantee that we will be able to continue to operate in such a
manner. In addition, if we are ever audited by the Internal Revenue Service with
respect to any past year, the IRS may challenge our qualification as a REIT for
such year.
Similarly, no assurance can be given that new legislation, new regulations,
administrative interpretations or court decisions will not change the tax laws
with respect to qualification as a REIT or the federal income tax consequences
of such qualification. We are not aware, however, of any currently pending tax
legislation that would adversely affect our ability to continue to operate as a
REIT.
Our Failure to Qualify as a REIT Would Have Serious Adverse Consequences
If we fail to qualify as a REIT, we will be subject to federal income tax
(including any applicable alternative minimum tax) on our taxable income at
regular corporate rates. This additional tax could significantly reduce, or
possibly eliminate, the amount of cash we have available for investment or
distribution to stockholders because of the additional tax liability for the
year or years involved. In addition, we will also be disqualified from
treatment as a REIT for the next four taxable years, unless we are entitled to
relief under certain statutory provisions.
If we do not qualify as a REIT, we will no longer be required to make annual
distributions to stockholders. To the extent that we made distributions to
stockholders in anticipation of our qualifying as a REIT, we might be required
to borrow funds or to liquidate certain of our investments to pay the applicable
tax. Our failure to qualify as a REIT would also constitute a default under
certain of our debt obligations and could significantly reduce the market value
of our common stock.
We May Need to Borrow Money to Qualify as a REIT
Our ability to make distributions to stockholders could be adversely
affected by increased debt service obligations if we need to borrow money in
order to maintain our REIT qualification. For example, differences in timing
between when we receive income and when we have to pay expenses could require us
to borrow money to meet the requirement that we distribute to our stockholders
at least 95% of our net taxable income (excluding net capital gain) each year.
The incurrence of large expenses also could cause us to need to borrow money to
meet this requirement. We might need to borrow money for these purposes even if
we believe that market conditions are not favorable for such borrowings and
therefore we may borrow money on unfavorable terms.
We are Subject To Some Taxes Even If We Qualify as a REIT
Even if we qualify as a REIT, we are subject to some federal, state and
local taxes on our income and property. For example, we pay tax on certain
income we do not distribute. Also, our income derived from properties located
in certain states are subject to local taxes and, if we entered into certain
prohibited transactions, our net income from such transactions would be subject
to a 100% tax.
12
<PAGE>
THE COMPANY
The Company is a fully-integrated real estate operating company that owns
and operates community and neighborhood shopping centers in the Midwest region
of the United States. As of December 1, 1998, the Company owned 97 properties
in 16 states, aggregating approximately 15.6 million square feet of GLA. Title
to such properties is held by or for the benefit of the Operating Partnership.
The Company conducts substantially all of its business through the Operating
Partnership. The Company is the sole general partner and the owner of
approximately 94% of the economic interests in the Operating Partnership.
The Company owns and operates and seeks to acquire grocery-anchored, open-
air community and neighborhood shopping centers in the Midwest, generally
consisting of the states of Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan,
Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and
Wisconsin. The Company currently owns properties in thirteen states in this
region. Through past experience as well as current research, the Company
believes that this region is economically strong and diverse and provides a
favorable environment for the acquisition, ownership and operation of retail
properties. The Company evaluates prospective acquisitions in certain Midwest
markets which, based upon its research, demonstrate opportunities for favorable
investment returns and long-term cash flow growth. The Company favors grocery-
anchored centers because, based on its past experience, such properties offer
strong and predictable daily consumer traffic and are less susceptible to
downturns in the general economy than apparel or leisure anchored shopping
center properties.
As part of its ongoing business, the Company regularly evaluates, and
engages in discussions with public and private entities regarding possible
portfolio or asset acquisitions or business combinations. During 1997, we
acquired 25 shopping centers aggregating over 3.1 million square feet of GLA for
an aggregate acquisition price of approximately $189.3 million. On August 6,
1998, we completed the merger acquisition of Mid-America Realty Investments,
Inc., a real estate investment trust owning interests in 25 properties
aggregating approximately 3.3 million square feet primarily located in the
Midwest region of the United States. In addition to property interests acquired
in connection with the merger acquisition of Mid-America Realty Investments,
from January 1, 1998 through December 1, 1998, we acquired 21 properties and two
outlots adjacent to one of our existing properties, aggregating 2.8 million
square feet of GLA for an aggregate acquisition price of approximately $198.9
million. We have also entered into a contract to acquire an additional shopping
center representing approximately 186,000 square feet of GLA, which we believe
will close, for an estimated price of approximately $3.9 million. In evaluating
potential acquisitions, the Company focuses principally on community and
neighborhood shopping centers in its Midwest target market that are anchored by
strong national, regional and independent grocery store chains. The Company
seeks to create an income stream diversity across its Midwest markets in order
to insulate it from economic trends affecting any particular market.
The Company has elected to qualify as a REIT for federal income tax purposes
since its organization in 1961 and is the nation's oldest continuously qualified
REIT.
The Company is incorporated under the laws of the State of Maryland. Its
offices are located at 40 Skokie Boulevard, Suite 600, Northbrook, Illinois
60062-1626. Its telephone number is (847) 272-9800.
13
<PAGE>
DESCRIPTION OF SECURITIES TO BE REGISTERED
The description of the Company's capital stock set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's charter and bylaws, each as amended and restated, copies of which are
exhibits to the registration statement of which this Prospectus is a part. See
"Available Information."
GENERAL
Under its charter, the Company has authority to issue up to 150 million
shares of stock, consisting of 80 million shares of common stock, 20 million
shares of preferred stock and 50 million shares of "Excess Stock" (as described
below). Under Maryland law, stockholders generally are not responsible for a
corporation's debts or obligations. As of the date of this Prospectus, Bradley
has approximately 23.8 million shares of Common Stock issued and outstanding and
approximately 3.5 million shares of 8.4% Series A Convertible Preferred Stock
("Series A Preferred Stock") issued and outstanding. In addition, the Operating
Partnership has approximately 1.4 million Units outstanding (other than those
held directly by the Company). If tendered to the Operating Partnership for
redemption, such Units may be exchanged for shares of common stock on a one-for-
one basis at the option of the Company, subject to certain adjustments to
prevent dilution and certain limitations imposed to protect the Company's status
as a REIT.
COMMON STOCK
Distribution Rights. As a holder of common stock, you will be entitled to
receive distributions on your shares if, as and when the Company's Board of
Directors authorizes and declares such distributions, subject to the provisions
of the Company's charter regarding Excess Stock. A more detailed description of
Excess Stock may be found below under the heading "--Excess Stock." Your right
to receive distributions, however, will be subordinated to the rights of holders
of Series A Preferred Stock and the holders of any other series of preferred
stock issued in the future. See "--Series A Preferred Stock" for a description
of the rights of holders of Series A Preferred Stock and of any other preferred
stock that the Company may issue.
Liquidation/Dissolution Rights. In a liquidation or dissolution of the
Company, each share of common stock entitles its holder to share (based on the
percentage of shares held) in any assets that remain after the Company pays its
liabilities and any preferential distributions owed to the holders of Series A
Preferred Stock and any other series of preferred stock issued in the future.
The amount of the aggregate liquidation preference of the Series A Preferred
Stock will not be counted as a liability in determining whether the Company is
permitted under Maryland law to make a distribution (other than upon voluntary
or involuntary liquidation), by dividend, redemption, or other acquisition of
shares, or otherwise.
Voting Rights. Subject to the provisions of the Company's charter regarding
Excess Stock, each outstanding share of common stock entitles the holder to one
vote on all matters submitted to a vote of stockholders, including the election
of directors. Except as otherwise required by law or except as provided with
respect to any other class or series of preferred stock issued in the future,
the holders of common stock and the holders of Series A Preferred Stock will
possess exclusive voting power. The holders of Series A Preferred Stock have
the right to vote on all matters submitted to a vote of the holders of common
stock on an "as-converted" basis. There is no cumulative voting in the election
of directors, which means that the holders of a majority of the votes cast for
directors can, subject to certain rights of holders of preferred stock, elect
all of the directors then standing for election, and the holders of the
remaining shares of voting stock will not be able to elect any directors. The
Company has a "staggered" Board of Directors, which means that approximately
one-third of the Directors stand for re-election each year instead of the entire
Board.
Restrictions on Transfer. See "--Excess Stock" below for a description of
certain provisions of the Company's charter designed to preserve the Company's
status as a qualified REIT that limit the transfer of,
14
<PAGE>
and provide the Company with a right to redeem, shares of capital stock
(including shares of common stock) and that also provide for the conversion of
such stock into Excess Stock, in certain circumstances.
Other Terms. Subject to the provisions of the Company's charter regarding
Excess Stock, all shares of common stock have equal dividend, distribution,
liquidation and other rights, which rights may, however, be subject to
preferential rights of shares of preferred stock. Holders of shares of common
stock have no preference, conversion, sinking fund, redemption or exchange
rights or preemptive rights. A conversion feature is one where a stockholder has
the option to convert his shares to a different security, such as debt or
preferred stock. A sinking fund or redemption right is one where a stockholder
will have the right to redeem his shares (for cash or other securities) at some
point in the future. Sometimes a redemption right is paired with an obligation
of the company to create an account into which the company must deposit money to
fund redemption (i.e., a sinking fund). Preemptive rights are rights granted to
stockholders to subscribe for a percentage of any other securities we offer in
the future based on the percentage of shares owned.
Information. The Company furnishes its stockholders with annual reports
containing audited consolidated financial statements and an opinion thereon
expressed by an independent public accounting firm and quarterly reports for the
first three quarters of each fiscal year containing unaudited financial
information.
Extraordinary Transactions. Pursuant to Maryland law and the Company's
charter, the Company generally cannot dissolve, amend its charter, merge, sell
all or substantially all of its assets, engage in a share exchange or engage in
similar transactions outside the ordinary course of business unless approved by
the affirmative vote of holders of shares entitled to cast a majority of all the
votes entitled to be cast. In addition, a number of other provisions of
Maryland law could significantly affect the shares of common stock and the
rights and obligations of its holders. See "--Certain Provisions of Maryland
Law."
SERIES A PREFERRED STOCK
In connection with the Company's acquisition of Mid-America Realty
Investments, Inc. in August 1998, the Company issued 3,480,210 shares of Series
A Preferred Stock to the former stockholders of that company. The Series A
Preferred Stock is the only series of preferred stock of the Company that is
outstanding as of the date of this Prospectus. The Series A Preferred Stock
ranks senior to the common stock with respect to dividend rights and
distributions upon liquidation, dissolution and winding up of the Company and
votes with the common stock on an "as converted" basis. The following are the
principal terms of the Series A Preferred Stock:
Dividends Cumulative fixed dividend of $0.525 per share
payable quarterly.
Liquidation Preference $25.00 per share plus an amount equal to
accumulated, accrued but unpaid dividends.
Conversion Rights The Series A Preferred Stock is convertible into
common stock at a conversion price of $24.49 per
share of common stock (equivalent to a conversion
rate of approximately 1.0208 shares of common
stock for each share of Series A Preferred),
subject to adjustment in certain circumstances to
prevent dilution.
Redemption After August 6, 2003, the Company may redeem the
Series A Preferred Stock for $25.00 per share,
plus any accumulated, accrued and unpaid
dividends, so long as the common stock has traded
above the conversion price for at least twenty
days prior to redemption.
15
<PAGE>
Voting Rights The holders of Series A Preferred Stock have the
right to vote with the common stock on each matter
coming before any meeting of the holders of common
stock, on an "as-converted" basis, that is, one
vote for each share of common stock into which the
holder's shares of Series A Preferred are then
convertible. If the Company ever becomes
delinquent with respect to six quarterly dividend
payments on the Series A Preferred Stock, the
holders of such preferred stock would also have
the right to elect two separate directors.
TRANSFER AGENT
The transfer agent and registrar for the Company's common stock and its
Series A Preferred Stock is BankBoston, N.A., c/o Boston EquiServe, L.P., P.O.
Box 8040, Boston, Massachusetts 02266.
POWER TO ISSUE ADDITIONAL SHARES OF STOCK
The charter grants the Board of Directors the power to authorize the
issuance of additional authorized but unissued shares of common stock and
preferred stock (including any unissued shares of any series of preferred stock,
to the extent permitted by the terms of these series). The Board of Directors
may also classify or reclassify unissued shares of common or preferred stock or
Excess Stock and authorize the issuance of these classified or reclassified
shares of stock. Under Maryland law and the charter, the Board of Directors is
required to fix the terms and conditions for each class or series, subject to
the provisions of the charter regarding Excess Stock, prior to the issuance of
the shares of each class or series of stock. These terms and conditions include
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications and terms or
conditions of redemption.
This power provides the Board of Directors with increased flexibility in
structuring possible future financings and acquisitions and in meeting other
needs which might arise. Unless stockholder action is required by applicable law
or the rules of any stock exchange or automated quotation system on which the
Company's securities may be listed or traded, the additional classes or series,
as well as the common stock, will generally be available for issuance without
further action by stockholders. However, the issuance of additional series of
preferred stock with rights senior to the Series A Preferred Stock must be
approved by the holders of Series A Preferred Stock. Although the Board of
Directors does not intend to do so at the present time, it could authorize the
issuance of a class or series that could delay, defer or prevent a change of
control or other transaction that holders of common stock might believe to be in
their best interests or in which holders of some, or a majority of, the common
stock might receive a premium for their shares over the then-current market
price.
EXCESS STOCK
General. As a protective measure, the Company's charter provides for the
issuance of a separate class of capital stock, referred to as Excess Stock, to
attempted transferees of common stock in transactions that may endanger the
Company's REIT qualification. The specific terms of Excess Stock and the
conditions giving rise to its issuance are described in more detail below.
Ownership Limit. As a REIT, the Company is required to comply with a
variety of complicated rules under the Internal Revenue Code. Among other
things, the Internal Revenue Code requires that, with certain limited
exceptions, REITs satisfy the following ownership limitations:
. not more than 50% in value of the REIT's outstanding capital stock may
be owned, directly or indirectly after applying complex attribution
rules, by five or fewer "individuals" (which phrase is defined to
include a variety of tax exempt taxpayers) during the last half of its
taxable year, and
16
<PAGE>
. such capital stock must be beneficially owned by 100 or more persons
during at least 335 days of each taxable year.
In order to protect its status as a qualified REIT, the Company's charter
contains limitations on the amount of its capital stock that any one party may
hold. The Company's "Ownership Limit" prohibits any holder from owning, or being
deemed to own by virtue of the attribution provisions of the Internal Revenue
Code:
. more than 9.8% of the Company's outstanding common stock, or
. shares of Series A Preferred Stock that either (a) have a value in
excess of 9.8% of the value of all outstanding shares of the Company's
capital stock, or (b) when converted, would result in such holder being
the beneficial holder of more than 9.8% of the total number of
outstanding shares of the Company's common stock, after giving effect to
such conversion.
The charter deems holders to own all stock that they (1) actually own,
(2) constructively own after applying the attribution rules specified in the
Internal Revenue Code, and (3) have the right to acquire upon exercise of any
rights, options or warrants or conversion of any convertible securities. Holders
may include natural persons, corporations, trusts, partnerships or other
entities. The fact that certain affiliated entities, such as separate mutual
funds advised by the same investment adviser, may own more than 9.8% of the
value of all outstanding capital stock in the aggregate will not of itself
result in the Ownership Limit being exceeded, even though that investment
advisor may be considered to be the "beneficial owner" of such stock for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended.
In addition, the Board of Directors may waive the Ownership Limit if evidence
satisfactory to the Board of Directors and the Company's tax counsel is
presented that the changes in ownership will not then or in the future
jeopardize the Company's status as a REIT and if the Board of Directors decides
that such waiver is in the best interests of the Company.
Violation of Ownership Limit. The charter provides that any attempted
transfer of capital stock or any security convertible into capital stock is null
and void if it would result in a violation of the Ownership Limit or the
disqualification of the Company as a REIT. These provisions include any
transfer that results in the Company being "closely held" within the meaning of
Section 856(h) of the Internal Revenue Code. In the event of such an attempted
transfer, the intended transferee will acquire no rights to the capital stock or
convertible securities attempted to be transferred. Instead, the shares of
capital stock or convertible securities will automatically be exchanged for
shares of Excess Stock and these shares of Excess Stock will automatically be
transferred, by operation of law, to a trustee for the exclusive benefit of one
or more charitable beneficiaries designated from time to time by the Company
(except to the extent described below). The trustee will be named by the Board
of Directors of the Company, but must be unaffiliated with the Company.
Rights of Excess Stock. The Excess Stock held in trust (a) will be
considered to be issued and outstanding shares of stock of the Company, (b) will
be entitled to receive distributions declared by the Company and (c) may be
voted by the trustee for the exclusive benefit of the charitable beneficiary.
The charter requires a purported transferee of Excess Stock to repay to the
Company any dividend or distribution which it receives prior to the discovery
that capital stock was transferred in violation of the Ownership Limit. The
Company is then required to turn over the amount of the repayment to the
trustee. The charter also retroactively nullifies any votes cast by the
purported transferee prior to the discovery that a transfer violated the
Ownership Limit. The charter does provide, however, that the retroactive
nullification of the vote cast with respect to the relevant shares of capital
stock will not adversely affect the rights of any third party who relied in good
faith upon the effectiveness of the matter that was the subject of the
stockholder action as to which such votes were cast.
Transferability of Excess Stock. As a general rule, holders may not
transfer Excess Stock. Subject to the Company's redemption right described
below, the trustee may transfer the shares of Excess Stock to a
17
<PAGE>
purchaser who could own such shares without violating the Ownership Limit. Upon
such sale, the shares of Excess Stock automatically convert back into shares of
the class or series of capital stock or convertible security from which they
were originally converted.
After Excess Stock is transferred in this way, the trustee must distribute
at least a portion of the sale proceeds to the attempted purchaser who
originally caused the Ownership Limit violation. The original attempted
purchaser is only entitled to the proceeds until it recovers the price it paid
for the stock. The trustee must distribute any proceeds in excess of the
original attempted purchase price to the charitable beneficiary. If the
attempted purchaser received the Excess Stock by gift, devise or otherwise
without giving value for such stock, then it is only entitled to receive an
amount that does not exceed the market price for such stock at the time of the
prohibited transfer, as determined in the manner set forth in the charter.
Redemption Right. In addition to the transfer restrictions described above,
the Company has the right to purchase all or any portion of the Excess Stock
from the trustee for a period of 90 days from the time the Company receives
written notice of the prohibited transfer or other event resulting in the
exchange of capital stock for Excess Stock. Under the charter, the purchase
price will be the lesser of (a) the price paid for the stock by the original
attempted transferee or (b) the market price of the stock on the date the
Company exercises its option to purchase. If the original attempted transferee
received such stock by gift, devise or otherwise without giving value for such
stock, the market price of the stock at the time of the prohibited transfer will
be used in lieu of the price paid. Upon any such purchase by the Company, the
trustee must distribute the purchase price to the original attempted transferee.
Additional Charter Provisions Regarding the Ownership Limit. If the
Ownership Limit is determined to be void or invalid by virtue of any legal
decision, statute, rule or regulation, then the intended transferee of any
Excess Stock may be deemed, at the option of the Company, to have acted as an
agent on behalf of the Company in acquiring the Excess Stock and to hold the
Excess Stock on behalf of the Company.
The Ownership Limit will not preclude settlement of transactions on the New
York Stock Exchange ("NYSE") or any other stock exchange on which capital stock
of the Company is listed. If the Board of Directors determines that it is no
longer in the best interests of the Company to continue to qualify as a REIT,
then these restrictions on transferability and ownership will not apply.
Upon demand by the Company, each stockholder and each proposed transferee of
capital stock must disclose to the Company in writing any information with
respect to the direct, indirect and constructive ownership of shares of stock as
the Board of Directors deems necessary to comply with, or determine compliance
with, the provisions of the Internal Revenue Code applicable to REITs or the
requirements of any taxing authority or governmental agency.
Effect on Potential "Change of Control" Transactions. The Company's
Ownership Limit may have the effect of delaying, deferring or preventing the
acquisition of control of the Company. The Ownership Limit, however, does not
apply to shares of capital stock acquired pursuant to an all cash tender offer
for all outstanding shares of capital stock in conformity with applicable laws
if the following conditions are met:
. At least two-thirds of the outstanding shares of capital stock are
tendered and accepted pursuant to such tender offer. The securities held
by the tender offeror and/or its affiliates and associates are not
included in determining whether the two-thirds threshold has been met.
. The tender offeror commits to give any non-tendering stockholders a
reasonable opportunity to put their capital stock to the tender offeror
at a price not less than that paid pursuant to the tender offer if the
offer is accepted by the holders of two-thirds of the outstanding stock.
18
<PAGE>
CERTAIN PROVISIONS OF MARYLAND LAW
Maryland Business Combination Statute
Maryland law prohibits certain "business combinations," including mergers,
consolidations, share exchanges, certain asset transfers and certain issuances
of equity securities, between a Maryland corporation and any person or entity
that owns 10% or more of the voting power of the corporation's shares (an
"Interested Stockholder"). This prohibition exists for five years after the
most recent date on which the Interested Stockholder became an Interested
Stockholder. Thereafter, any such business combination must be approved by the
affirmative vote of at least 80% of the votes entitled to be cast by holders of
outstanding voting shares of the corporation other than shares held by the
Interested Stockholder with whom the business combination is to be effected.
There is an exception to this rule when, among other things, the holders of the
corporation's shares receive a minimum price (as defined in Maryland law) for
their shares and the consideration is received in cash or in the same form as
previously paid by the Interested Stockholder for the shares that it owns.
However, these provisions of Maryland law do not apply to "business
combinations" with an Interested Stockholder that are approved or exempted by
the board of directors of the corporation before that Interested Stockholder
becomes an Interested Stockholder.
Maryland Control Share Acquisition Statute
Maryland law provides that "control shares" of a Maryland corporation
acquired in a "control share acquisition" have no voting rights except to the
extent approved by a vote of two-thirds of the votes eligible under the statute
to be cast on that matter by stockholders. "Control Shares" are voting shares
that, if aggregated with all other such shares of stock previously acquired by
the acquiror, would entitle the acquiror to exercise voting power in electing
directors within one of the following ranges of voting power:
(1) one-fifth or more but less than one-third;
(2) one-third or more but less than a majority, or
(3) a majority of all voting power.
Control Shares do not include shares the acquiring person is then entitled
to vote as a result of having previously obtained stockholder approval. A
"control share acquisition" means the acquisition of Control Shares, subject to
certain expenses.
If voting rights are not approved at a stockholder meeting or if the
acquiring person does not deliver an acquiring person statement as required by
the statute, then, subject to certain conditions and limitations, the
corporation may redeem any or all of the Control Shares (except those for which
voting rights have previously been approved) for fair value. If voting rights
for Control Shares are approved at a stockholder meeting and the acquiror
becomes entitled to vote a majority of the shares entitled to vote, all other
stockholders may exercise appraisal rights. The Company's bylaws contain a
provision exempting any and all acquisitions of the Company's capital stock from
the control shares provision of Maryland law. Nothing prevents the Company's
Board of Directors from amending or repealing this provision in the future.
19
<PAGE>
DESCRIPTION OF UNITS AND REDEMPTION OF UNITS
REDEMPTION OF UNITS
Each Unitholder may, subject to certain limitations, require that the
Operating Partnership redeem all or a portion of such holder's Units by
delivering a notice to the Operating Partnership. Upon redemption, a Unitholder
will receive, with respect to each Unit redeemed, cash in an amount equal to the
market value of one share of common stock (subject to certain adjustments to
prevent dilution) plus any distribution amount owed but not yet paid to the
Unitholder. The market value of the Company's common stock for this purpose
will be equal to the average of the closing trading price of the common stock on
the NYSE for the ten trading days before the day on which the redemption notice
was received by the Operating Partnership. The Second Restated Agreement of
Limited Partnership of the Operating Partnership (the "Operating Partnership
Agreement") provides that if such trading information is not available, the
Company can use any other method to determine the value of the common stock as
it deems appropriate in its reasonable judgment. The Operating Partnership
Agreement does not specify alternative methodologies. The valuation methodology
to be used will depend on all the facts and circumstances at the time.
In lieu of the Operating Partnership redeeming Units for cash, the Company,
as general partner of the Operating Partnership, has the right to elect to
acquire directly any Units tendered for redemption in exchange for either (1)
cash in the amount described above or (2) shares of common stock on a one-for
one basis (subject to certain adjustments to prevent dilution). Any such
acquisition will result in the Company owning the tendered Units and thereby
increase its economic interest in the Operating Partnership. An acquisition by
the Company will be treated as a sale of the Units to the Company for federal
income tax purposes. See "--Tax Consequences of Redemption" below. Upon any
redemption such Unitholder's right to receive distributions with respect to the
redeemed Units will cease. If the Company elects to redeem the Units for shares
of common stock, the Unitholder will have all the rights of a stockholder of the
Company, including the right to receive dividends, from the time of its
acquisition of the shares.
The Company anticipates that it generally will elect to acquire any Units
presented to the Operating Partnership for redemption by the issuance of shares
of its common stock. However, the Company will make the determination whether
to pay cash or issue shares of common stock upon redemption of Units at the time
the Units are tendered for redemption. Any such determination will be made
based on all of the facts and circumstances at the time, including the
availability of cash, whether the acquisition of Units for cash is a good
investment and the market price of the common stock. In addition, under the
terms of the Operating Partnership Agreement, no redemption can occur if the
delivery of common stock would be prohibited under the provisions of the
Company's charter that protect the Company's qualification as a REIT or, in the
opinion of counsel, the Company would no longer qualify as a REIT.
TAX CONSEQUENCES OF REDEMPTION
The following discussion summarizes certain federal income tax
considerations that may be relevant to a Unitholder who redeems his Units.
Tax Treatment of Exchange or Redemption of Units
If the Company elects to purchase Units tendered for redemption, the
Operating Partnership Agreement provides that the transaction will be treated as
a sale of Units by the Unitholder to the Company at the time of such redemption.
The sale will be fully taxable to the redeeming Unitholder and such redeeming
Unitholder will be treated as realizing for tax purposes an amount equal to the
sum of the cash value or the value of the shares of common stock received in the
exchange plus the amount of any Operating Partnership liabilities allocable to
the redeemed Units at the time of the redemption. The determination of the
amount of gain or loss is discussed more fully below. See "--Tax Treatment of
Disposition of Units by a Unitholder Generally" below.
20
<PAGE>
If the Company does not elect to purchase a Unitholder's Units tendered for
redemption and the Operating Partnership redeems such Units for cash that the
Company contributes to the Operating Partnership to effect such redemption, the
redemption likely would be treated for tax purposes as a sale of such Units to
the Company in a fully taxable transaction, although the matter is not free from
doubt. In that event, the redeeming partner would be treated as realizing an
amount equal to the sum of the cash received in the exchange plus the amount of
any Operating Partnership liabilities allocable to the redeemed Units at the
time of the redemption. The determination of the amount and character of gain
or loss in the event of such a sale is discussed more fully below. See "--Tax
Treatment of Disposition of Units by a Unitholder Generally" below.
If the Company does not elect to purchase Units tendered for redemption and
the Operating Partnership redeems a Unitholder's Units for cash that is not
contributed by the Company to effect the redemption, the tax consequences would
likely be the same as described in the previous paragraph, although not free
from doubt. If the Operating Partnership redeems less than all of a
Unitholder's Units, however, the Unitholder would not be permitted to recognize
any loss occurring on the transaction and would recognize taxable gain only to
the extent that the cash, plus the amount of any Operating Partnership
liabilities allocable to the redeemed Units, exceeded the Unitholder's adjusted
basis in all of such Unitholder's Units immediately before the redemption. This
result may differ if the Redemption were treated as a disguised sale. See
"Potential Application of the Disguised Sale Regulations to a Redemption of
Units" below.
If the Company contributes cash to the Operating Partnership to effect a
redemption, and the form of the transaction is respected for tax purposes so
that the redemption transaction is treated as the redemption of the Unitholder's
Units by the Operating Partnership rather than a sale of Units to the Company,
the income tax consequences to a Unitholder would be the same as described in
the preceding paragraph.
Tax Treatment of Disposition of Units by a Unitholder Generally
If a Unitholder disposes of a Unit in a manner that is treated as a sale of
the Unit, or a Unitholder otherwise disposes of a Unit, the determination of
gain or loss from the sale or other disposition will be based on the difference
between the amount considered realized for tax purposes and the tax basis in
such Unit. See "--Basis of Units" below. Upon the sale of a Unit, the "amount
realized" will be measured by the sum of the cash and fair market value of other
property (e.g., shares of common stock) received plus the amount of any
Operating Partnership liabilities allocable to the Units sold. To the extent
that the amount of cash or property received plus the allocable share of any
Operating Partnership liabilities exceeds the Unitholder's basis for the Units
disposed of, such Unitholder will recognize gain. It is possible that the
amount of gain recognized or even the tax liability resulting from such gain
could exceed the amount of cash and/or the value of any other property (e.g.,
shares of common stock) received upon such disposition.
Except as described below, any gain recognized upon a sale or other
disposition of Units will be treated as gain attributable to the sale or
disposition of a capital asset. To the extent, however, that the amount
realized upon the sale of a Unit attributable to a Unitholder's share of
"unrealized receivables" of the Operating Partnership (as defined in Section 751
of the Internal Revenue Code) exceeds the basis attributed to those assets, such
excess will be treated as ordinary income. Unrealized receivables include, to
the extent not previously included in Operating Partnership income, any rights
to payment for services rendered or to be rendered. Unrealized receivables also
include amounts that would be subject to recapture as ordinary income if the
Operating Partnership had sold its assets at their fair market value at the time
of the transfer of a Unit.
Basis of Units
In general, a Unitholder who acquired his Units by contribution of property
and/or money to the Operating Partnership had an initial tax basis in his Units
("Initial Basis") equal to the sum of (i) the amount of money contributed (or
deemed contributed as described below) and (ii) his adjusted tax basis in any
21
<PAGE>
other property contributed in exchange for such Units, and less the amount of
any money distributed (or deemed distributed, as described below) in connection
with the acquisition of the Units. The Initial Basis of Units acquired by
other means would have been determined under the general rules of the Internal
Revenue Code, including the partnership provisions, governing the determination
of tax basis. Other rules, including the "disguised sale" rules discussed
below, also may affect Initial Basis, and Unitholders are urged to consult their
own tax advisors regarding their Initial Basis. A Unitholder's Initial Basis in
his Units generally is increased by (i) such Unitholder's share of Operating
Partnership taxable and tax-exempt income and (ii) increases in such
Unitholder's allocable share of liabilities of the Operating Partnership
(including any increase in his share of liabilities occurring in connection with
the acquisition of his Units). Generally, such Unitholder's basis in his Units
is decreased (but not below zero) by (i) such Unitholder's share of Operating
Partnership distributions, (ii) decreases in such Unitholder's allocable share
of liabilities of the Operating Partnership (including any decrease in his share
of liabilities of the Operating Partnership occurring in connection with the
acquisition of his Units), (iii) such Unitholder's share of losses of the
Operating Partnership and (iv) such Unitholder's share of nondeductible
expenditures of the Operating Partnership that are not chargeable to his capital
account.
Potential Application of the Disguised Sale Regulations to a Redemption of
Units
There is a risk that a redemption by the Operating Partnership of Units
issued in exchange for a contribution of property to the Operating Partnership
may cause the original transfer of property to the Operating Partnership in
exchange for Units to be treated as a "disguised sale" of property. Section 707
of the Internal Revenue Code and the Treasury Regulations thereunder (the
"Disguised Sale Regulations") generally provide that, unless one of the
prescribed exceptions is applicable, a partner's contribution of property to a
partnership and a simultaneous or subsequent transfer of money or other
consideration (which may include the assumption of or taking subject to a
liability) from the partnership to the partner will be presumed to be a sale, in
whole or in part, of such property by the partner to the partnership. Further,
the Disguised Sale Regulations provide generally that, in the absence of an
applicable exception, if money or other consideration is transferred by a
partnership to a partner within two years of the partner's contribution of
property, the transactions are presumed to be a sale of the contributed property
unless the facts and circumstances clearly establish that the transfers do not
constitute a sale. The Disguised Sale Regulations also provide that if two
years have passed between the transfer of money or other consideration and the
contribution of property, the transactions will be presumed not to be a sale
unless the facts and circumstances clearly establish that the transfers
constitute a sale.
Accordingly, if a Unit is redeemed by the Operating Partnership from a
Unitholder who holds Units that were issued in exchange for a contribution of
property to the Operating Partnership, the Internal Revenue Service (the "IRS")
could contend that the Disguised Sale Regulations apply because the Unitholder
will thus receive cash subsequent to a previous contribution of property to the
Operating Partnership. In that event, the IRS could contend that the
contribution was taxable as a disguised sale under the Disguised Sale
Regulations. Any gain recognized thereby may be eligible for installment
reporting under Section 453 of the Internal Revenue Code, subject to certain
limitations. In addition, in such event, the Disguised Sale Regulations might
apply to cause a portion of the proceeds received by a redeeming Unitholder to
be characterized as original issue discount on a deferred obligation which would
be taxable as interest income in accordance with the provisions of Section 1272
of the Internal Revenue Code. Each Unitholder is advised to consult its own tax
advisors to determine whether redemption of its Units could be subject to the
Disguised Sale Regulations.
COMPARISON OF OWNERSHIP OF UNITS AND COMMON STOCK
The nature of any investment in the Company's common stock is generally
economically equivalent to an investment in Units in the Operating Partnership.
A holder of a share of common stock receives the same distribution that a holder
of a Unit receives and stockholders and Unitholders generally share in the risks
and rewards of ownership in the same enterprise. There are, however,
differences between ownership of Units and ownership of common stock, some of
which may be material to investors.
22
<PAGE>
The information below highlights a number of significant differences between
the Operating Partnership and the Company relating to, among other things, form
of organization, permitted investments, policies and restrictions, management
structure, compensation and fees, investor rights and federal income taxation
and compares certain legal rights associated with the ownership of Units and
common stock, respectively. These comparisons are intended to assist
Unitholders in understanding how their investment will be changed if their Units
are acquired for common stock. This discussion is summary in nature and does
not constitute a complete discussion of these matters. Holders of Units should
carefully review the balance of this Prospectus and the registration statement
of which this Prospectus is a part for additional important information about
the Company.
<TABLE>
<CAPTION>
THE OPERATING PARTNERSHIP THE COMPANY
- -------------------------------------- --------------------------------------
Form of Organization and Assets Owned
<S> <C>
The Operating Partnership is The Company is a Maryland corporation
organized as a Delaware limited which has elected to be taxed as a
partnership and is the entity REIT under the Internal Revenue Code
through which the Company conducts and intends to maintain its
substantially all of its business qualifications as a REIT. The
and owns (either directly or Company maintains a general partner
indirectly through subsidiaries) interest in the Operating
substantially all of its assets. Partnership, which gives the Company
The Board of Directors of the an indirect investment in those
Company manages the affairs of the properties and other assets owned by
Operating Partnership by directing the Operating Partnership. The
the affairs of the Company. Company currently owns approximately
a 94% economic interest in the
Operating Partnership, and such
interest will increase as Units are
redeemed for cash or acquired by the
Company.
<CAPTION>
Length of Investment
<S> <C>
The Operating Partnership has a The Company has a perpetual term and
stated termination date of December intends to continue its operations
31, 2050, although it may be for an indefinite time period.
terminated earlier under certain
circumstances.
</TABLE>
23
<PAGE>
<TABLE>
<CAPTION>
THE OPERATING PARTNERSHIP THE COMPANY
- -------------------------------------- --------------------------------------
Nature of Investment and Distribution Rights
<S> <C>
The Units constitute equity interests The common stock constitutes an
entitling each Unitholder to his pro equity interest in the Company. The
rata share of cash distributions Company is entitled to receive a
made to the Unitholders of the portion of the Partnership's
Operating Partnership, including the operating cash flow and capital cash
Company. Because the Company also flow sufficient to pay dividends to
holds "preferred units" of the stockholders concurrently with any
Operating Partnership with distribution to the Unitholders has
distribution rights equivalent to been effected. Each stockholder will
the Company's Series A Preferred be entitled to his pro rata share of
Stock, distributions to Unitholders any dividends or distributions paid
are subject to the prior with respect to common stock. The
distribution rights of such dividends payable to the stockholders
preferred units. In general, the are not fixed in amount and are only
Operating Partnership is structured paid if, when and as declared by the
so that Unitholders receive Board of Directors. In order to
distributions on their Units equal qualify as a REIT, the Company must
to the dividend yield for the same distribute at least 95% of its
period on a share of the Company's taxable income (excluding capital
common stock. gains), and any taxable income
(including capital gains) not
As a partnership, the Operating distributed will be subject to
Partnership is not subject to corporate income tax.
federal income taxation. In
determining their federal income
tax, partners of the Operating
Partnership, including Unitholders,
must take into account their
allocable share of partnership
income, gain, deduction and loss
(regardless of whether distributed),
and otherwise are subject to the
rules governing the taxation of
partnerships and partners. By
contrast, Unitholders who receive
common stock upon exercise of their
redemption rights will be taxed on
such investment in accordance with
the rules governing REITs. See
"Federal Income Tax Considerations."
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
THE OPERATING PARTNERSHIP THE COMPANY
- -------------------------------------- --------------------------------------
Issuance of Additional Units
<S> <C>
The Operating Partnership is The Board of Directors of the Company
authorized to issue additional Units may issue, in its discretion,
and such other partnership interests additional equity securities consisting
(including partnership interests of of common stock or any other series of
different series or classes that may capital stock (which may be classified
be senior to Units) as the Company and issued as a variety of equity
may determine in its sole discretion securities, including one or more
as general partner. The relative classes of common or preferred stock,
rights, powers and duties of such in the discretion of the Board of
Units or other interests will be Directors) so long as the total number
determined by the Company in its of shares issued does not exceed the
sole discretion. The Operating authorized number of shares of capital
Partnership may issue Units and stock set forth in the Company's
other partnership interests to the charter. The issuance of additional
Company, as long as such interests shares of common stock, preferred
are issued in connection with a stock or other similar equity
comparable issuance of its capital securities may result in the dilution
stock and proceeds raised in of the interests of the existing
connection with the issuance of such stockholders.
capital stock are contributed to the
Operating Partnership. In addition,
the Operating Partnership will issue
additional Units upon exercise of
the options granted pursuant to the
Company's stock option plans. The
issuance of additional Units or
other similar partnership interests
may result in the dilution of the
interests of the existing
Unitholders.
<CAPTION>
Liquidity
<S> <C>
A Unitholder may not transfer any The Company's common stock is freely
portion of their Units without the transferable subject to the
consent of the general partner, requirements of the Securities Act of
subject to the following exceptions: 1933, as amended. The common stock
is listed on the NYSE. The breadth
(a) transfers by will, the laws and strength of this market will
of intestacy or otherwise to the depend, among other things, upon the
legal representative or number of shares outstanding, the
successor of the transferring Company's financial results and
Unitholder who shall be bound in prospects, the general interest in
all respects by the terms of the the Company's and other real estate
Operating Partnership Agreement; investments and the Company's
dividend yield compared to that of
(b) inter vivos transfers for other debt and equity securities.
estate planning purposes; or
(c) pledges to secure the
repayment of a loan.
Subject to certain conditions, each
Unitholder has the right to elect to
have their Units redeemed by the
Operating Partnership. Upon
redemption, the Unitholder will
receive, at the Company's election,
either shares of common stock or the
cash equivalent in exchange for such
Units.
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
THE OPERATING PARTNERSHIP THE COMPANY
- -------------------------------------- --------------------------------------
Purchase and Permitted Investments
<S> <C>
The Operating Partnership's purpose Under its charter, the Company may
is to conduct any business that engage in any lawful activity
relates to the properties or permitted under Maryland law.
affiliated entities of the Operating
Partnership, except that the
Operating Partnership Agreement
requires the business of the
Operating Partnership to be
conducted in a manner that permits
the Company to be classified as a
REIT for Federal income tax purposes
and avoids any Federal income or
excise tax liability. The Operating
Partnership may, subject to the
foregoing limitation, invest or
enter into partnerships, joint
ventures or similar arrangements and
may own interests in any other
entity.
<CAPTION>
Borrowing Policies
<S> <C>
The Operating Partnership has no The Company is not restricted under
restrictions on borrowings, and the its organizational documents from
Company as the general partner, has incurring borrowings.
full power and authority to borrow
money on behalf of the Operating
Partnership.
<CAPTION>
Other Investment Restrictions
<S> <C>
Other than restrictions precluding Neither the Company's charter nor its
investments by the Operating bylaws impose any restrictions upon
Partnership that would adversely the types of investments made by the
affect the Company's qualification Company.
as a REIT, there are no restrictions
upon the Operating Partnership's
authority to enter into any
transactions, including, among
others, making investments, lending
Operating Partnership funds, or
reinvesting the Operating
Partnership's cash flow and net sale
or refinancing proceeds.
<CAPTION>
Management Control
<S> <C>
Generally, all management powers over The Board of Directors has exclusive
the business and affairs of the control over the Company's business
Operating Partnership are vested in and affairs subject only to the
the Company as general partner and restrictions in its charter and
no other Unitholder of the Operating bylaws. The Board of Directors is
Partnership has any right to classified into three classes. At
participate in or exercise control each annual meeting of stockholders,
or management power over the the successors of the class of
business and affairs of the Directors whose terms expire at that
Operating Partnership. The meeting will be elected. The
Operating Partnership Agreement policies adopted by the Board of
provides that the Company shall be Directors may be altered or
reimbursed for all expenses incurred eliminated without advice of the
by it relating to the management and stockholders. Accordingly, except
business of the Operating for their vote in the elections of
Partnership. Directors, stockholders have no
control over the ordinary business
policies of the Company.
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
THE OPERATING PARTNERSHIP THE COMPANY
- -------------------------------------- --------------------------------------
Management Liability and Indemnification
<S> <C>
The Operating Partnership Agreement The Company's charter eliminates, to
generally provides that the general the fullest extent permitted under
partner and any person acting on its Maryland law, the personal liability
behalf will incur no liability to of a director of the Company for
the Operating Partnership or any monetary damages for breaches of such
Unitholder for any act or omission director's duty of care or other
within the scope of the general duties as a director. The effect of
partner's authorities, provided the this provision in the charter is
general partner's or such other generally to eliminate the rights of
person's action or omission to act the Company and its stockholders
was taken in good faith and in the (through stockholders' derivative
belief that such action or omission suits on behalf of the Company) to
was in the best interests of the recover monetary damages against a
Company and its affiliates, and director for breach of the fiduciary
provided further, that the general duty of care as a director (including
partner's or such other person's breaches resulting from negligent or
actions or omissions shall not grossly negligent behavior). This
constitute actual fraud or gross provision does not limit or eliminate
negligence or deliberately dishonest the rights of the Company or any
conduct. stockholder to seek non-monetary
relief such as an injunction or
The Operating Partnership Agreement recession in the event of a breach of
also provides for the a director's duty of care. These
indemnification of the general provisions will not alter the
partner and its affiliates and any liability of a director under federal
individual acting on their behalf securities laws.
from any loss, damage, claim or
liability, including, but not
limited to, reasonable attorneys'
fees and expenses, incurred by them
by reason of any act performed by
them in accordance with the
standards set forth above or in
enforcing the provisions of this
indemnity.
<CAPTION>
Antitakeover Provisions
<S> <C>
Except in limited circumstances, the The Company's charter and bylaws and
general partner has exclusive Maryland law contain a number of
management power over the business provisions that may have the effect
and affairs of the Operating of delaying or discouraging an
Partnership. The general partner may unsolicited proposal to acquire the
not be removed by the Unitholders Company or remove incumbent
with or without cause. Under the management. See "Risk
Operating Partnership Agreement, the Factors--Certain Provisions in
Company may, in its sole discretion, Organizational Documents May
prevent a Unitholder from Discourage Acquisition Proposals."
transferring their Units except in
certain limited circumstances.
Accordingly, the Company may
exercise this right of approval to
deter, delay or hamper attempts by
persons to acquire a majority
interest in the Operating
Partnership.
</TABLE>
27
<PAGE>
<TABLE>
<CAPTION>
THE OPERATING PARTNERSHIP THE COMPANY
- -------------------------------------- --------------------------------------
Voting Rights
<S> <C>
Holders of Units have no right to The Board of Directors directs the
elect or remove the Company as the Company's business and affairs. The
general partner of the Operating Board consists of three classes
Partnership and generally have no having staggered terms of office.
other voting rights. Under the Stockholders elect each class at
Operating Partnership Agreement, the annual meetings of the Company. All
Company as general partner may take shares of common stock have one vote
any action in a manner that it per share. The charter permits the
reasonably believes to be in the Board of Directors to classify and
best interests of its stockholders issue preferred stock in one or more
or complies with the REIT series having voting power which may
requirements for the Company. The differ from that of the common stock.
Company's ability to make amendments
to the Operating Partnership Stockholders of the Company have the
Agreement is limited to the extent right to vote, among other things, on
described below. a merger or sale of all or
substantially all of the assets of
the Company, certain amendments to
the charter and dissolution of the
Company. Under Maryland law and the
charter, the sale of all or
substantially all of the assets of
the Company or any merger or
consolidation of the Company requires
the approval of the Board of
Directors and holders of a majority
of the outstanding shares of common
stock. No approval of the
stockholders is required for the sale
of less than all or substantially all
of the Company's assets. Under
Maryland law and the charter and
bylaws, the Board of Directors must
obtain approval of holders of not
less than a majority of all
outstanding shares of the Company's
capital stock in order to dissolve
the Company.
<CAPTION>
Amendment of the Partnership Agreement or the Company's Charter
<S> <C>
Generally, the Operating Partnership Amendments to the charter must be
Agreement may be amended by the approved by the Board of Directors
general partner without the consent and generally by the vote of a
of the Unitholders, except that majority of the votes entitled to be
certain amendments which alter or cast at a meeting of stockholders
change Unitholders' distribution except as otherwise provided by law.
rights or redemption rights requires The Board of Directors may, however,
the consent of the Unitholders amend the Charter without any action
holding a majority-in-interest of of the stockholders in certain
the outstanding Units. respects to preserve the Company's
REIT qualification.
</TABLE>
28
<PAGE>
<TABLE>
<CAPTION>
THE OPERATING PARTNERSHIP THE COMPANY
- -------------------------------------- --------------------------------------
Compensation, Fees and Distributions
<S> <C>
The general partner is not entitled The Directors of the Company receive
to receive any compensation for its compensation for their services.
services as general partner of the
Operating Partnership. As a partner
in the Operating Partnership,
however, the general partner has the
same right to allocations and
distributions as other partners of
the Operating Partnership. In
addition, the Operating Partnership
will reimburse the general partner
for administrative expenses incurred
relating to the ongoing operation of
the Company and certain other
expenses arising in connection with
its role as general partner. All
officers of the Company are
employees of the Operating
Partnership and receive compensation
for their services as such.
<CAPTION>
Liability of Investors
<S> <C>
Under the Operating Partnership Under the Maryland law, stockholders
Agreement and applicable Delaware generally are not personally liable
law, the liability of the limited for the debts or obligations of the
partners for the Operating Company.
Partnership's debts and obligations
is generally limited to the amount
of their investment in the Operating
Partnership, together with any
interest in any undistributed income.
</TABLE>
29
<PAGE>
FEDERAL INCOME TAX CONSIDERATIONS
As a REIT, the Company must comply with highly technical and complex
requirements under the Internal Revenue Code. The following discussion
summarizes these requirements and their effect on the Company and its
stockholders. The summary discussion is for general information only and is not
an exhaustive list of all tax considerations that may be material. For example,
this discussion does not address any state, local or foreign tax considerations.
Also, this discussion does not address issues that arise as a result of your, or
any other investor's, special circumstances or special status under the Internal
Revenue Code. The summary is qualified in its entirety by, and you should refer
to, Sections 856 through 860 of the Internal Revenue Code and the Treasury
Regulations thereunder, which set forth the particular provisions applicable to
REITs.
The discussion in this section (and any other section of this Prospectus) is
not intended to be, nor should you construe it as, tax advice. You are urged to
consult your own tax advisor to determine the impact of a redemption of your
Units and/or of owning the Company's common stock on your own personal
situation. In particular, foreign investors should consult their own tax
advisors concerning the tax consequences of an investment in the Company,
including the possibility of United States income tax withholding on Company
distributions.
General
Under the Internal Revenue Code, if certain requirements are met in a
taxable year, including the requirement that the REIT distribute to its
stockholders at least 95% of its real estate investment trust taxable income for
the taxable year, a REIT generally will not be subject to federal income tax
with respect to income that it distributes to its stockholders. For these
purposes, taxable income will be computed without regard to the dividends paid
deduction and the Company's net capital gain. However, the Company may be
subject to federal income tax under certain circumstances, including taxes at
regular corporate rates on any undistributed REIT taxable income or net capital
gains, the alternative minimum tax on its items of tax preference, and taxes
imposed on income and gain generated by certain extraordinary transactions. As
discussed below, however, for taxable years beginning after December 31, 1997,
stockholders may be credited for all or a portion of the taxes paid by the
Company on its retained net capital gains. If the Company fails to qualify
during any taxable year as a REIT, unless certain relief provisions are
available, it will be subject to tax (including any applicable alternative
minimum tax) on its taxable income at regular corporate rates, which could have
a material adverse effect upon its stockholders.
The Company Believes But Cannot Guarantee That It Qualifies as a REIT
The Company has elected to qualify as a REIT under the Internal Revenue
Code. In the opinion of Goodwin, Procter & Hoar LLP, the Company has been
organized in conformity with the requirements for qualification as a REIT under
the Internal Revenue Code, and its manner of operation has met and will continue
to meet the requirements for qualification and taxation as a REIT under the
Internal Revenue Code. This opinion is based on various assumptions and is
conditioned upon representations made by the Company as to factual matters and
the continuation of such factual matters. You should be aware, however, that
opinions of counsel are not binding upon the IRS or any court. Moreover, such
qualification and taxation as a REIT in any tax year depends upon the Company's
ability to meet the various source of income, ownership of assets, distribution
and diversity of ownership requirements of the Internal Revenue Code for
qualification as a REIT in its actual results each tax year, which results will
not be reviewed by Goodwin, Procter & Hoar LLP. Accordingly, no assurance can
be given that the actual results of the Company for any particular tax year will
in fact satisfy the requirements for qualification. Likewise, although the
Company believes that it has operated in a manner which satisfies the REIT
qualification requirements under the Internal Revenue Code since its
organization in 1961, no assurance can be given that the Company's qualification
as a REIT will not be challenged by the IRS for taxable years still subject to
audit.
30
<PAGE>
Undistributed Long-Term Capital Gains
The Company may elect to retain and pay income tax on its net long-term
capital gains received during the taxable year. For taxable years beginning
after December 31, 1997, if the Company so elects for a taxable year, the
stockholders would include in income as long-term capital gains their
proportionate share of such portion of the Company's undistributed long-term
capital gains for the taxable year as the Company may designate. A stockholder
would be deemed to have paid his share of the tax paid by the Company on such
undistributed capital gains, which would be credited or refunded to the
stockholder. The stockholder's basis in his common stock would be increased by
the amount of undistributed long-term capital gains included in the
stockholder's long-term capital gains, less such stockholder's share of the
capital gains tax paid by the Company.
Dividends Taxable as Ordinary Income
As long as the Company qualifies as a REIT, distributions made to the
Company's taxable U.S. Stockholders out of current or accumulated earnings and
profits (and not designated as a capital gain dividends) will be taken into
account by such U.S. Stockholders as ordinary income and will not be eligible
for the dividends received deduction generally available to corporations.
Subject to the discussion below regarding the changes to the capital gains tax
rates, distributions that are designated as capital gains dividends will be
taxed as capital gains (to the extent they do not exceed the Company's actual
net capital gain for the taxable year) without regard to the period for which
the stockholder has held his or her common stock. However, corporate
stockholders may be required to treat up to 20% of certain capital gain
dividends as ordinary income. Capital gain dividends are not eligible for the
dividends-received deduction for corporations.
As used herein, the term "U.S. Stockholder" means a holder of common stock
that for United States federal income tax purposes is:
. a citizen or resident of the United States, or
. a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision
thereof, or
. an estate, the income of which is subject to United States federal
income taxation regardless of its source, or
. a trust, if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions
of the trust, and
. is not an entity that has a special status under the Internal Revenue
Code (such as a tax-exempt organization or dealer in securities).
Dividends Taxable as Capital Gain
To the extent that the Company has net capital gain for a taxable year,
dividends paid during the year (or that are deemed paid) properly designated by
it as long-term capital gains will be treated as such for the taxable year
without regard to the period for which the stockholder has held his stock. See
"Dividends Taxable as Ordinary Income" for the treatment of corporations.
Other Dividends
Distributions, other than capital gain dividends, in excess of current and
accumulated earnings and profits will not be taxable to a stockholder to the
extent that they do not exceed the adjusted basis of the stockholder's common
stock, but rather will reduce the adjusted basis of such stock. To the extent
that distributions in excess of current and accumulated earnings and profits
exceed the adjusted basis of a stockholder's common stock, the distribution will
be treated as long-term capital gain or loss if the shares of common stock have
been held for more than 12 months and otherwise as short-term capital gain or
loss.
31
<PAGE>
In addition, any dividend declared by the Company in October, November or
December of any year and payable to a stockholder of record on a special date in
any such month shall be treated as both paid by the Company and received by the
stockholder on December 31 of such year, provided that the distribution is
actually paid by the Company during January of the following calendar year.
Net Operating Losses
Stockholders may not include in their individual income tax returns any net
operating losses or capital losses of the Company. Instead, such losses would
be carried over by the Company for potential offset against its future income
(subject to certain limitations). Taxable distributions from the Company and
gain from the disposition of common stock will not be treated as passive
activity income and, therefore, stockholders generally will not be able to apply
any "passive activity losses" (such as losses from certain types of limited
partnerships in which the stockholder is a limited partner) against such income.
In addition, taxable distributions from the Company generally will be treated as
investment income for purposes of the investment interest deduction limitations.
Capital gain distributions and capital gains from the disposition of common
stock (and distributions treated as such) will be treated as investment income
for purposes of the investment interest deduction limitations only if and to the
extent the stockholder so elects, in which case such capital gain distributions
and capital gains will be taxed at ordinary income rates to the extent of such
election. The Company will notify stockholders after the close of the Company's
taxable year as to the portions of the distributions attributable to that year
that constitute ordinary income, return of capital, and capital gain.
32
<PAGE>
NO PROCEEDS TO THE COMPANY
The Company will not receive any proceeds in connection with the issuance of
the shares of common stock offered by this Prospectus. The Company will acquire
Units in exchange for any shares it issues and its economic interest in the
Operating Partnership will increase accordingly.
PLAN OF DISTRIBUTION
This Prospectus relates to the possible issuance by the Company of up to
1,212,630 shares of common stock if, and to the extent that, certain holders of
an aggregate of 1,212,630 Units tender such Units for redemption and the Company
elects to acquire such tendered Units for shares of common stock. See
"Description of Units and Redemption of Units." The Operating Partnership
originally issued these Units to the equity holders of Lexington Holding
Company, Baken Park Partners Limited Partnership, County Line 31 Company, L.P.
and Spring Mall Associates Limited Partnership in exchange for the contribution
of their interests in certain properties to the Operating Partnership. In
connection with these property acquisitions, the Company entered into
registration rights agreements with the contributors. The Company is
registering the shares covered by this Prospectus in order to fulfill its
contractual obligations under these agreements and provide the holders of the
shares with freely tradable securities. Registration of these shares does not
necessarily mean that all or any portion of the shares will be issued by the
Company.
All expenses incident to the offering and sale of the shares offered hereby
will be paid by the Company, other than brokerage and underwriting commissions
and taxes of any kind and any legal, accounting and other expenses incurred by
the redeeming Unitholder. The Company has agreed to indemnify these Unitholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
LEGAL MATTERS
Certain legal matters, including the legality of the shares of common stock
offered hereby, will be passed upon for the Company by Goodwin, Procter & Hoar
LLP, Boston, Massachusetts. William B. King, whose professional corporation is
a partner in Goodwin, Procter & Hoar LLP, is Secretary of the Company and is
the beneficial owner of approximately 10,000 shares of common stock.
EXPERTS
The consolidated financial statements and schedule of the Company as of
December 31, 1997 and 1996 and for each of the years in the three-year period
ended December 31, 1997 contained in the Company's Annual Report on Form 10-K,
the statement of revenues and certain expenses of Redford Plaza for the year
ended December 31, 1997, the statement of revenues and certain expenses of
Courtyard Shopping Center for the year ended December 31, 1997, the combined
statement of revenues and certain expenses of Camelot Shopping Center and
Plainview Village for the year ended December 31, 1997, the statement of
revenues and certain expenses of Salem Consumer Square for the year ended
December 31, 1997, the statement of revenues and certain expenses of Holiday
Manor Shopping Center for the year ended December 31, 1997, the statement of
revenues and certain expenses of Ellisville Square for the year ended December
31, 1997, and the statement of revenues and certain expenses of Clock Tower
Plaza for the year ended December 31, 1997 have been incorporated by reference
herein and in the Registration Statement in reliance upon the reports of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing. To the extent that KPMG Peat Marwick LLP audits and reports on
financial statements of the Company issued at future dates, and consents to the
use of their report thereon, such financial statements also will be incorporated
by reference in the Registration Statement in reliance upon their report and
said authority.
33
<PAGE>
================================================================================
You should rely only on the information contained in this Prospectus,
incorporated herein by reference or contained in a Prospectus Supplement. We
have not authorized anyone else to provide you with different or additional
information. We are not making an offer of these securities in any state where
the offer is not permitted. You should not assume that the information in this
Prospectus, and incorporated herein by reference or in any Prospectus Supplement
is accurate as of any date other than the date on the front of those documents.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................................................... 2
Incorporation of Certain Documents by Reference.......................... 2
Prospectus Summary....................................................... 3
Risk Factors............................................................. 5
The Company.............................................................. 13
Description of Securities to be Registered............................... 14
Description of Units and Redemption of Units............................. 20
Federal Income Tax Considerations........................................ 30
No Proceeds to the Company............................................... 33
Plan of Distribution..................................................... 33
Legal Matters............................................................ 33
Experts.................................................................. 33
</TABLE>
================================================================================
1,212,630 SHARES
BRADLEY REAL ESTATE, INC.
COMMON STOCK
Prospectus
December __, 1998
================================================================================
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of the fees and
expenses (other than underwriting commissions and discounts) anticipated to be
paid by the Company in connection with the issuance and distribution of the
Securities.
<TABLE>
<S> <C>
SEC Registration fee $ 5,125
Legal fees and expenses 20,000
Accounting fees and expenses 10,000
Printing fees and expenses 2,000
Transfer and Agency fees 1,000
Miscellaneous 1,875
-------
TOTAL $40,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Maryland General Corporation Law ("MGCL") permits a Maryland corporation
to include in its charter a provision limiting the liability of its directors
and officers to the corporation and its stockholders for money damages except
for liability resulting from (i) actual receipt of an improper benefit or profit
in money, property or services or (ii) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
charter of Bradley Real Estate, Inc. (the "Company") contains such a provision
which eliminates such liability to the maximum extent permitted by Maryland law.
The charter of the Company authorizes it, to the maximum extent permitted by
Maryland law, to obligate itself to indemnify and to pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (i) any present or
former director, officer, agent, employee or plan administrator of the Company
or of its predecessor Bradley Real Estate Trust (the "Trust") or (ii) any
individual who, at the request of the Company, serves or has served in any of
these capacities with another corporation, partnership, joint venture, trust,
employee benefit plan or any other enterprise. The Bylaws of the Company
obligate it, to the maximum extent permitted by Maryland law, to indemnify
(a) any present or former director or officer of the Company, (b) any individual
who, at the request of the Company, serves or has served another corporation,
partnership, joint venture, trust or other enterprise as a director or officer
or (c) any former trustee or officer of the Company's predecessor entity,
Bradley Real Estate Trust.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Company's charter does not) to indemnify a director or officer who has
been successful, on the merits or otherwise, in the defense of any proceeding to
which he is made a party by reason of his service in that capacity. The MGCL
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service in those or other
capacities unless it is established that (i) the act or omission of the director
or officer was material to the matter giving rise to the proceeding and (a) was
committed in bad faith or (b) was the result of active and deliberate
dishonesty, (ii) the director or officer actually received an improper personal
benefit in money, property or services or (iii) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. However, a Maryland corporation may not indemnify for
an adverse judgment in a suit by or in the right of the corporation. In
addition, the MGCL requires a corporation as a condition to advancing expenses,
to obtain (x) a written affirmation by the director or officer of his good faith
belief that he has met the standard of conduct necessary for indemnification by
the corporation as authorized by the bylaws and (y) a written statement by or on
his behalf to repay the amount paid or reimbursed by the corporation if it shall
ultimately be determined that the standard of conduct was not met.
II-1
<PAGE>
The Company has claims-made directors and officers liability insurance
policies that insure the directors and officers of the Company against loss from
claimed wrongful acts and insure the Company for indemnifying the directors and
officers against such loss. The policy limits of liability are $10,000,000 each
policy year and are subject to a retention of $150,000 of loss by the Company.
ITEM 16. EXHIBITS.
Exhibit
No. Description
--- -----------
4.1 Articles of Amendment and Restatement of Bradley Real Estate, Inc.,
incorporated by reference to Exhibit 3.1 of the Company's Current Report
on Form 8-K dated October 17, 1994.
4.2 Articles Supplementary Establishing and Fixing the Rights and Preferences
of a Series of Shares of Preferred Stock for the 8.4% Series A
Convertible Preferred Stock of Bradley Real Estate, Inc. incorporated by
reference to Annex B to the Proxy/Statement Prospectus included in Part I
to the Company's Registration Statement on Form S-4 (No. 333-57123).
4.3 By-laws of Bradley Real Estate, Inc., incorporated by reference to
Exhibit 3.3 of the Company's Current Report on Form 8-K dated October 17,
1994. 4.4 Form of Common Stock Certificate, incorporated by reference to
Exhibit 4.1 of the Company's Current Report on Form 8-K dated October 17,
1994.
4.5 Second Restated Agreement of Limited Partnership of Bradley Operating
Limited Partnership, dated as of September 2, 1997, incorporated by
reference to the Operating Partnership's Registration Statement on
Form 10.
4.6 Amendment to Second Restated Agreement of Limited Partnership of the
Operating Partnership, dated August 6, 1998, designating the 8.4% Series
A Convertible Preferred Units.
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Securities being registered.
*8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.
*23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibits 5.1 and
8.1 hereto).
24.1 Powers of Attorney (included on the signature page hereof).
99.1 Registration Rights Agreement, dated January 1, 1997, by and between the
Company and Lexington Holding Company, incorporated by reference to
Exhibit 99.1 of the Company's Registration Statement on Form S-3
(No. 333-42357).
*99.2 Registration Rights Agreement, dated December 23, 1997, by and between
the Company and Spring Mall Associates Limited Partnership.
*99.3 Registration Rights Agreement, dated December 31, 1997, by and between
the Company and Baken Park Partners Limited Partnership.
*99.4 Registration Rights Agreement, dated September 25, 1998, by and between
the Company and County Line 31 Company, L.P.
______________________
* Filed herewith.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act")
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
II-2
<PAGE>
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and
of the estimated maximum offering range may be reflected in the
form of Prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the undersigned registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), that are incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act
that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15
above, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission (the "Commission")
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer, or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Northbrook, State of Illinois on December 17, 1998.
BRADLEY REAL ESTATE, INC.
By: /s/ Thomas P. D'Arcy
---------------------------------------
Thomas P. D'Arcy, President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated, each of whom also constitutes and
appoints Thomas P. D'Arcy and Irving E. Lingo, Jr., and each of them singly, his
true and lawful attorney-in-fact and agent, for him, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and a further registration statement filed conforming to Rule 462(b)
under the Securities Act of 1933, as amended, relating to securities of the same
class(es) registered under this Registration Statement and to file the same and
all exhibits thereto and any other documents in connection therewith with the
Securities and Exchange Commission, granting unto each attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that each
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Name Title Date
- --------------------------- ------------------------------------ -----------------
<S> <C> <C>
/s/ Thomas P. D'Arcy Chairman, President, Chief Executive December 17, 1998
- --------------------------- Officer and Director
THOMAS P. D'ARCY
/s/ Irving E. Lingo, Jr. Executive Vice President and Chief December 17, 1998
- --------------------------- Financial Officer
IRVING E. LINGO, JR.
/s/ David M. Garfinkle Controller December 17, 1998
- ---------------------------
DAVID M. GARFINKLE
/s/ Joseph E. Hakim Director December 17, 1998
- ---------------------------
JOSEPH E. HAKIM
/s/ William L. Brown Director December 17, 1998
- ---------------------------
WILLIAM L. BROWN
/s/ Stephen G. Kasnet Director December 17, 1998
- ---------------------------
STEPHEN G. KASNET
/s/ Paul G. Kirk, Jr. Director December 17, 1998
- ---------------------------
PAUL G. KIRK, JR.
/s/ W. Nicholas Thorndike Director December 17, 1998
- ---------------------------
W. NICHOLAS THORNDIKE
/s/ A. Robert Towbin Director December 17, 1998
- ---------------------------
A. ROBERT TOWBIN
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
4.1 Articles of Amendment and Restatement of Bradley Real Estate, Inc.,
incorporated by reference to Exhibit 3.1 of the Company's Current
Report on Form 8-K dated October 17, 1994.
4.2 Articles Supplementary Establishing and Fixing the Rights and
Preferences of a Series of Shares of Preferred Stock for the 8.4%
Series A Convertible Preferred Stock of Bradley Real Estate, Inc.
incorporated by reference to Annex B to the Proxy/Statement
Prospectus included in Part I to the Company's Registration Statement
on Form S-4 (No. 333-57123).
4.3 By-laws of Bradley Real Estate, Inc., incorporated by reference to
Exhibit 3.3 of the Company's Current Report on Form 8-K dated October
17, 1994. 4.4 Form of Common Stock Certificate, incorporated by
reference to Exhibit 4.1 of the Company's Current Report on Form 8-K
dated October 17, 1994.
4.5 Second Restated Agreement of Limited Partnership of Bradley Operating
Limited Partnership, dated as of September 2, 1997, incorporated by
reference to the Operating Partnership's Registration Statement on
Form 10.
4.6 Amendment to Second Restated Agreement of Limited Partnership of the
Operating Partnership, dated August 6, 1998, designating the 8.4%
Series A Convertible Preferred Units.
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Securities being registered.
*8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.
*23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibits 5.1 and
8.1 hereto).
24.1 Powers of Attorney (included on the signature page hereof).
99.1 Registration Rights Agreement, dated January 1, 1997, by and between
the Company and Lexington Holding Company, incorporated by reference
to Exhibit 99.1 of the Company's Registration Statement on Form S-3
(No. 333-42357).
*99.2 Registration Rights Agreement, dated December 23, 1997, by and
between the Company and Spring Mall Associates Limited Partnership.
*99.3 Registration Rights Agreement, dated December 31, 1997, by and
between the Company and Baken Park Partners Limited Partnership.
*99.4 Registration Rights Agreement, dated September 25, 1998, by and
between the Company and County Line 31 Company, L.P.
______________________
* Filed herewith.
<PAGE>
EXHIBIT 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
December 17, 1998
Bradley Real Estate, Inc.
40 Skokie Boulevard, Suite 600
Northbrook, IL 60062
RE: LEGALITY OF SECURITIES TO BE REGISTERED UNDER THE REGISTRATION
STATEMENT ON FORM S-3 (THE "REGISTRATION STATEMENT")
Dear Ladies and Gentlemen:
This opinion relates to up to 1,212,630 shares of common stock, par value
$.01 per share (the "Redemption Shares"), of Bradley Real Estate, Inc., a
Maryland corporation (the "Company"), that may be issued if, and to the extent
that, certain holders of limited partner units ("Units") representing
partnership interests of Bradley Operating Limited Partnership, a Delaware
limited partnership (the "Operating Partnership"), tender such Units to the
Operating Partnership for redemption and the Company exercises its contractual
right to acquire such tendered Units for Redemption Shares, which are the
subject matter of the above-referenced Registration Statement filed with the
Securities and Exchange Commission (the "Commission").
We have acted as counsel to the Company in connection with the preparation
and filing with the Commission of the Registration Statement. For purposes of
this opinion we have reviewed the Company's Articles of Amendment and
Restatement and By-Laws and the Second Restated Agreement of Limited Partnership
of the Operating Partnership (the "Operating Partnership Agreement"), each as
amended to date. We have also examined records of corporate proceedings of the
Company and such other certificates, receipts, records and documents as we have
deemed necessary to enable us to render this opinion. In our examination, we
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as certified,
photostatic or facsimile copies, the authenticity of the originals of such
copies and the authenticity of telephonic confirmations of public officials and
others. As to facts material to our opinion, we have relied upon certificates or
telephonic confirmations of public officials and certificates, documents,
statements and other information of the Company or representatives or officers
thereof.
<PAGE>
Bradley Real Estate, Inc.
December 17, 1998
Page 2
We are attorneys admitted to practice in The Commonwealth of Massachusetts.
We express no opinion herein concerning the laws of any other jurisdictions
other than the laws of the United States of America and the General Corporation
Law of the State of Maryland as in effect on the date hereof, and also express
no opinion with respect to the blue sky or securities laws of any state,
including Maryland.
Based upon the foregoing, and having regard for such legal considerations
as we have deemed relevant, it is our opinion that, when the Registration
Statement relating to the Redemption Shares has become effective under the
Securities Act of 1933, as amended, and the Redemption Shares have been duly
issued and exchanged for Units tendered to the Operating Partnership for
redemption in accordance with the provisions of the Operating Partnership
Agreement, the Redemption Shares will be duly authorized, validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us in the prospectus contained in
such Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 8.1
-----------
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
December 17, 1998
Bradley Real Estate, Inc.
40 Skokie Boulevard, Suite 600
Northbrook, IL 60062
Re: Certain Federal Income Tax Matters
Ladies and Gentlemen:
This opinion is furnished to you in our capacity as counsel to Bradley Real
Estate, Inc. (the "Company"), a Maryland corporation, regarding the Company's
qualification for federal income tax purposes as a real estate investment trust
("REIT") within the meaning of Sections 856-860 of the Internal Revenue Code of
1986, as amended (the "Code"). This opinion is rendered in connection with the
filing of a registration statement on Form S-3 (the "Registration Statement")
relating to up to 1,212,630 shares of common stock, par value $.01 per share
(the "Redemption Shares"), of the Company that may be issued if, and to the
extent that, certain holders of limited partner units ("Units") representing
partnership interests of Bradley Operating Limited Partnership (the "Operating
Partnership") tender such Units to the Operating Partnership for redemption and
the Company exercises its contractual right to acquire such tendered Units for
Redemption Shares.
In rendering the following opinion, we have examined the Registration
Statement, the Company's Charter (including the Declaration of Trust of Bradley
Real Estate Trust) and Bylaws and such other records, certificates and documents
as we have deemed necessary or appropriate for purposes of rendering the opinion
set forth herein. We also have relied upon the representations of the Company
regarding the manner in which the Company has been and will continue to be owned
and operated. We have neither independently investigated nor verified such
representations, and we assume that such representations are true, correct and
complete and that all representations made "to the best of the knowledge and
belief" of any person(s) or party(ies) or with similar qualification are and
will be true, correct and complete as if made without such qualification. We
assume, and rely upon such assumption, that the Company has been and will be
operated in accordance with applicable laws and the terms and conditions of
applicable documents. In addition, we have relied on certain additional facts
and assumptions described below.
1
<PAGE>
Bradley Real Estate, Inc.
December 17, 1998
Page 2
In rendering the opinion set forth herein, we have assumed (i) the
genuineness of all signatures on documents we have examined, (ii) the
authenticity of all documents submitted to us as originals, (iii) the conformity
to the original documents of all documents submitted to us as copies, (iv) the
conformity of final documents to all documents submitted to us as drafts, (v)
the authority and capacity of the individual or individuals who executed any
such documents on behalf of any person (vi) the accuracy and completeness of all
records made available to us, and (vii) the factual accuracy of all
representations, warranties and other statements made by all parties. We also
have assumed, and rely upon such assumption, without investigation, that all
documents, certificates, warranties and covenants on which we have relied in
rendering the opinion set forth below and that were given or dated earlier than
the date of this letter continue to remain accurate, insofar as relevant to the
opinions set forth herein, from such earlier date, through and including the
date of this letter.
The discussion and conclusions set forth below are based upon the Code, the
Income Tax Regulations and Procedure and Administration Regulations promulgated
thereunder and existing administrative and judicial interpretations thereof, all
of which are subject to change. No assurance can therefore be given that the
federal income tax consequences described below will not be altered in the
future.
Based upon and subject to the foregoing, and provided that the Company
continues to meet the applicable asset composition, source of income,
shareholder diversification, distribution and other requirements of the Code
necessary for a corporation to qualify as a REIT, we are of the opinion that:
1. For all years as to which the Company's tax returns remain open for
adjustment by the Internal Revenue Service, the Company has been organized
in conformity with the requirements for qualification as a "real estate
investment trust" under the Code, and the Company's method of operation, as
described in the representations referred to above, has been such as to
enable it to meet, and to continue to meet, the requirements for
qualification and taxation as a "real estate investment trust" under the
Code.
2. The statements in the Registration Statement set forth under the caption
"Federal Income Tax Considerations," to the extent such information
constitutes matters of law, summaries of legal matters or legal
conclusions, have been reviewed by us and are accurate in all material
respects.
We express no opinion with respect to the transactions described in the
Registration Statement other than those expressly set forth herein. You should
recognize that our opinion is
2
<PAGE>
Bradley Real Estate, Inc.
December 17, 1998
Page 3
not binding on the Internal Revenue Service and that the Internal Revenue
Service may disagree with the opinion contained herein. Although we believe that
our opinion will be sustained if challenged, there can be no assurance that this
will be the case. The opinion expressed herein is based upon the law as it
currently exists. Consequently, future changes in the law may cause the federal
income tax treatment of the transactions described herein to be materially and
adversely different from that described above.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us in the prospectus contained in
such Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
3
<PAGE>
EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP
--------------------------------
The Board of Directors of Bradley Real Estate, Inc.:
We consent to the use of our report dated January 28, 1998, relating to the
consolidated balance sheets of Bradley Real Estate, Inc. and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements of income,
changes in share owners' equity and cash flows for each of the years in the
three-year period ended December 31, 1997 and related schedule, which report
appears in the December 31, 1997 Annual Report on Form 10-K of Bradley Real
Estate, Inc., our report dated April 9, 1998 related to the statement of
revenues and certain expenses of Redford Plaza for the year ended December 31,
1997, our report dated May 7, 1998 related to the statement of revenues and
certain expenses of Courtyard Shopping Center for the year ended December 31,
1997, our report dated May 7, 1998 related to the combined statement of revenues
and certain expenses of Camelot Shopping Center and Plainview Village for the
year ended December 31, 1997, our report dated May 29, 1998 related to the
statement of revenues and certain expenses of Salem Consumer Square for the year
ended December 31, 1997, our report dated May 29, 1998 related to the statement
of revenues and certain expenses of Holiday Manor Shopping Center for the year
ended December 31, 1997, our report dated June 1, 1998 related to the statement
of revenues and certain expenses of Ellisville Square for the year ended
December 31, 1997, and our report dated September 2, 1998 related to the
statement of revenues and certain expenses of Clock Tower Plaza for the year
ended December 31, 1997, incorporated herein by reference and to the reference
to our firm under the heading "Experts" in the prospectus.
Chicago, Illinois
December 17, 1998
<PAGE>
EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (this "AGREEMENT") is entered into as of
December 23, 1997 by and between Bradley Real Estate, Inc., a Maryland
corporation (the "COMPANY") and Spring Mall Associates Limited Partnership, an
Illinois limited partnership ("CONTRIBUTOR").
WHEREAS, pursuant to a Contribution of Property and Admission of Limited
Partner Agreement dated as of the date hereof and between Contributor and
Bradley Operating Limited Partnership (the "PURCHASER"), Contributor will
receive units of limited partnership interest ("UNITS") in the Purchaser, which
may be redeemed for cash or, at the option of the Company, for the number of
shares of the Company's common stock, $.01 par value ("COMMON STOCK"), issuable
pursuant to the Purchaser's Amended and Restated Agreement of Limited
Partnership (the "PARTNERSHIP AGREEMENT").
WHEREAS, Contributor may only distribute such Units as provided in the
Contribution of Property and Admission of Limited Partner Agreement of even date
(each such holder of Units, including Contributor, is individually referred to
herein as a "HOLDER" and collectively as the "HOLDERS").
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Registration.
------------
(a) Registration Statement Covering Issuance of Common Stock. The Company
--------------------------------------------------------
will use its reasonable efforts to (i) file a registration statement with the
Securities and Exchange Commission (the "SEC") under Rule 415 under the
Securities Act of 1933 (the "SECURITIES ACT") relating to the issuance to the
Holders of all shares of Common Stock issuable upon the redemption or in
exchange for their Units (a "SHELF REGISTRATION STATEMENT"), and (ii) cause such
Shelf Registration Statement to be declared effective within fourteen (14) days
after the date upon which the Units may be redeemed. The Company agrees to use
its reasonable efforts to keep such Shelf Registration Statement (or in the
event such initial Shelf Registration Statement is withdrawn or terminated for
any reason, to keep a successor Shelf Registration Statement) continuously
effective until such time as all of the Units have been redeemed for cash or, at
the option of the Company, for the number of shares of Common Stock issuable
pursuant to the Partnership Agreement. In the event that the Company is unable
to cause such Shelf Registration Statement to be declared effective by the SEC
or is unable to keep such Shelf Registration Statement effective until such time
as all of the Units have been redeemed for cash or, at the option of the
Company, for the number of shares
<PAGE>
issuable pursuant to the Partnership Agreement, despite its commercially
reasonable efforts to do so, then each Holder shall have the rights set forth in
Section 1(b) and 1(c) below.
(b) Demand Registration.
-------------------
(i) After the first date upon which Units held by the Holders may be
redeemed until the date on which there are no Registrable Shares (as hereinafter
defined) remaining, subject to the conditions set forth in this Agreement,
including without limitation the conditions set forth in Section 1(b)(ii) below,
any Holder or Holders may request that the Company cause to be filed a
registration statement (a "Demand Registration Statement") under Rule 415 under
the Securities Act relating to the sale by such Holders of their previously or
concurrently issued Registrable Shares in accordance with the terms hereof. As
used in this Agreement, the term "Registrable Shares" means shares of Common
Stock issued or to be issued to the Holders upon redemption or in exchange for
their Units, excluding (A) Common Stock for which a Registration Statement
relating to the issuance or sale thereof shall have become effective under the
Securities Act and which have been issued or sold, as applicable, under such
Registration Statement, (B) Common Stock sold pursuant to Rule 144 under the
Securities Act or (C) Common Stock which, together with all other Registrable
Shares held by such Holder and any other Holder whose sales of Registrable
Shares must be aggregated with sales of such Holder pursuant to Rule 144(e), is
eligible for sale pursuant to Rule 144(e) under the Securities Act. Upon
receipt of any such request, the Company shall give written notice of such
proposed registration to all Holders of Units and Registrable Shares. Such
Holders shall have the right, by giving written notice to the Company within
fifteen (15) business days after such notice referred to in the preceding
sentence has been given by the Company to elect to have included in the Demand
Registration Statement such of their Registrable Shares as each Holder may
request in such notice of election. Thereupon, the Company shall use reasonable
efforts to cause such Demand Registration Statement to be filed and declared
effective by the SEC for all Registrable Shares which the Company has been
requested to register as soon as practicable thereafter. The Company agrees to
use reasonable efforts to keep the Demand Registration Statement continuously
effective until the earliest of (a) the date on which the Holders no longer hold
any Registrable Shares registered under the Demand Registration Statement, (b)
the date on which the Registrable Shares registered under the Demand
Registration Statement held by each Holder may, together with all other
Registrable Shares held by such Holder and any other Holder whose sales of
Registrable Shares must be aggregated with sales of such Holder pursuant to Rule
144(e), be sold by such Holder pursuant to Rule 144(e) under the Securities Act
or (c) the date which is twelve (12) months from the effective date of such
Demand Registration Statement. The Company shall not be required to file and
effect a new Demand Registration Statement pursuant to this Section 1(b) until a
period of twelve (12) months has elapsed from the termination of the
registration statement with respect to Registrable Shares covered by a prior
registration request.
(ii) The Company shall have no obligation under Section 1(b)(i) unless
the
<PAGE>
following conditions are satisfied:
Any Holder who requests that the Company cause to be filed a Demand
Registration Statement pursuant to Section 1(b)(i) must provide to the Company a
certificate (the "AUTHORIZING CERTIFICATE") that sets forth (i) the name and
address of the Holder, (ii) the number of Registrable Shares owned by such
Holder, and, if different, the number of Registrable Shares such Holder has
elected to have registered, (iii) the number of all shares of Common Stock of
the Company (including the Registrable Shares) owned by such Holder, (iv) the
number of shares of Common Stock if any of such Holder that are not being
registered and that will be owned by such Holder after the sale of all shares to
be registered, (v) a certification from each such Holder that it is requesting
the registration of only those shares of Common Stock received by such Holder
upon the redemption of its Units pursuant to the Partnership Agreement, and (vi)
such further information as the Company may reasonably request in connection
with such Registration Statement. If the Company determines that a Holder's
shares of Common Stock have become eligible for sale pursuant to Rule 144(e),
the Company shall, at the request of such Holder, at the Company's expense,
deliver to such Holder an opinion of counsel to such effect reasonably
acceptable to such Holder.
(c) Piggyback Registration. If at any time after the first date upon which
----------------------
Units held by the Holders may be redeemed and until the date on which there are
no Registrable Shares remaining the Company proposes to file a registration
statement under the Securities Act with respect to an offering of Common Stock
solely for cash (other than a registration statement (i) on Form S-8 or any
successor form or in connection with any employee or director welfare, benefit
or compensation plan, (ii) on Form S-4 or any successor form or in connection
with an exchange offer, (iii) in connection with a rights offering or a dividend
reinvestment and share purchase plan offered exclusively to existing holders of
Common Stock, (iv) in connection with an offering solely to employees of the
Company or its affiliates, (v) relating to a transaction pursuant to Rule 145 of
the Securities Act, or (vi) a shelf registration on Form S-3 or any successor
form), whether or not for its own account (a "PIGGYBACK REGISTRATION
STATEMENT"), the Company shall give to the Holders of Units and Registrable
Shares written notice of such proposed filing at least ten (10) business days
before filing. The notice referred to in the preceding sentence shall offer
Holders the opportunity to register such amount of Registrable Shares as each
Holder may request (a "PIGGYBACK REGISTRATION"). Subject to the provisions of
Section 2 below, the Company shall include in such Piggyback Registration all
Registrable Shares requested to be included in the registration for which the
Company has received an Authorizing Certificate within five (5) business days
after the notice referred to above has been given by the Company to the Holders.
Holders of Registrable Shares shall be permitted to withdraw all or part of the
Registrable Shares from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration. If a Piggyback Registration is
an underwritten registration on behalf of the Company and the managing
underwriter advises the Company that the total number of shares of Common Stock
requested to be included in such registration exceeds the number of shares of
Common Stock which can be sold in such
<PAGE>
offering, the Company will include in such registration in the following
priority: (i) first, all shares of Common Stock the Company proposes to sell and
(ii) second, up to the full number of applicable Registrable Shares requested to
be included in such registration which, in the opinion of such managing
underwriter, can be sold without adversely affecting the price range or
probability of success of such offering, which shall be allocated among the
Holders requesting registration and all other stockholders requesting
registration on a pro rata basis. No Registrable Securities or other shares of
Common Stock requested to be included in a registration pursuant to demand
registration rights shall be excluded from the underwriting unless all
securities other than such securities are first excluded. Any Demand
Registration Statement, Piggyback Registration Statement or Shelf Registration
Statement is sometimes referred to as a "REGISTRATION STATEMENT."
2. Registration Procedures.
-----------------------
(a) The Company shall notify each Holder of the effectiveness of any
applicable Registration Statement and shall furnish, without charge, to each
Holder with respect to a Shelf Registration Statement, a copy of the prospectus
included therein or, with respect to a Demand Registration Statement or a
Piggyback Registration Statement, such number of copies of the Registration
Statement (including any amendments, supplements and exhibits), the prospectus
contained therein (including each preliminary prospectus), any documents
incorporated by reference in the Registration Statement and such other documents
as such Holder may reasonably request in order to facilitate its sale of the
Registrable Shares in the manner described in the Registration Statement.
(b) The Company shall prepare and file with the SEC from time to time such
amendments and supplements to the Registration Statement and prospectus used in
connection therewith as may be necessary to keep the Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the issuance or disposition of all the Registrable Shares until the earlier
of (i) such time as all of the Registrable Shares have been issued or disposed
of in accordance with the intended methods of issuance by the Company, or
disposition by the Holders, as set forth in the Registration Statement or (ii)
the date on which the Registration Statement ceases to be effective in
accordance with the terms of Section 1. Upon ten (10) business days' notice, the
Company shall file any supplement or post-effective amendment to the
Registration Statement with respect to such Holder's interests in or plan of
distribution of Registrable Shares that is reasonably necessary to permit the
sale of the Holder's Registrable Shares pursuant to the Registration Statement
and the Company shall file any necessary listing applications or amendments to
the existing applications to cause the shares to be then listed or quoted on the
primary exchange or quotation system on which the Common Stock is then listed or
quoted. The Company agrees to deliver copies of the prospectus as contained in
such Registration Statement promptly following effectiveness thereof to the New
York Stock Exchange (or any other applicable national securities exchange) as
contemplated by SEC Rule 157.
<PAGE>
(c) The Company shall promptly notify each Holder of, and confirm in
writing, any request by the SEC for amendments or supplements to the
Registration Statement or the prospectus related thereto or for additional
information. In addition, the Company shall promptly respond to such SEC
requests and shall promptly notify each Holder of, and confirm in writing, the
filing of the Registration Statement, any prospectus supplement related thereto
or any post-effective amendment to the Registration Statement and the
effectiveness of any post-effective amendment.
(d) The Company shall promptly notify each Holder, at any time when a
prospectus relating to the Registration Statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. In such
event and subject to paragraph 7 of this Agreement, the Company shall promptly
prepare and furnish to each Holder a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of Registrable Shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading.
3. State Securities Laws. Subject to the conditions set forth in this
---------------------
Agreement, the Company shall, promptly upon the filing of a Registration
Statement including Registrable Shares, file such documents as may be necessary
to register or qualify the Registrable Shares under the securities or "Blue Sky"
laws of such states as any Holder may reasonably request to the extent that
registration or qualification under such laws is necessary in order that the
Registrable Shares may be legally sold in such states, and the Company shall use
reasonable efforts, in the case of a Demand Registration Statement or a
Piggyback Registration Statement, and best efforts, in the case of a Shelf
Registration Statement, to cause such filings to become effective; provided,
--------
however, that with respect to a Demand Registration Statement or a Piggyback
- -------
Registration Statement, the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any such state in which it
is not then qualified or to file any general consent to service of process in
any such state. Once effective, the Company shall use reasonable efforts, in
the case of a Demand Registration Statement or a Piggyback Registration
Statement, and best efforts, in the case of a Shelf Registration Statement, to
keep such filings effective until the earlier of (a) such time as all of the
Registrable Shares have been issued by the Company, or disposed of in accordance
with the intended methods of disposition by the Holder, as set forth in the
Registration Statement, (b) in the case of a particular state, a Holder has
notified the Company that it no longer requires effective filing in such state
in accordance with its original request for filing or (c) the date on which the
Registration Statement ceases to be effective with the SEC. The Company shall
promptly notify each Holder of, and confirm in writing, the receipt by the
Company of any
<PAGE>
notification with respect to the suspension of the qualification of the
Registrable Shares for sale under the securities or "Blue Sky" laws of any
jurisdiction or the initiation or threat of any proceeding for such purpose.
4. Expenses. The Company shall bear all expenses incurred in connection
--------
with the registration of the Registrable Shares pursuant to Section 1(a) and
Section 1(c) of this Agreement. In addition, the Company will pay all expenses
in connection with the registration of Registrable Shares pursuant to Section
1(b) of this Agreement provided that the registration is for One Million Dollars
or more of Registerable Shares. The Holders shall bear their ratable share of
all expenses incurred by the Company in connection with a registration in which
the Holders are included pursuant to Section 1(b) of this Agreement based on the
number of Registrable Shares included to the total number of shares of Common
Stock so registered for each Registration Statement registering less than the
applicable amount specified in the previous sentence for such Holder. Such
expenses shall include, without limitation, all printing, legal and accounting
expenses incurred by the Company and all registration and filing fees imposed by
the SEC, any state securities commission or the New York Stock Exchange or, if
the Common Stock is not then listed on the New York Stock Exchange, the
principal national securities exchange or national market system on which the
Common Stock is then traded or quoted. Holders shall be responsible for any
brokerage or underwriting commissions and taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
Registrable Shares and for any legal, accounting and other expenses incurred by
them in connection with any Registration Statement.
5. Indemnification by the Company. In connection with any Demand
------------------------------
Registration Statement or any Piggyback Registration Statement, the Company
agrees to indemnify each of the Holders and their respective officers,
directors, employees, agents, representatives and affiliates, and each person or
entity, if any, that controls a Holder within the meaning of the Securities Act,
and each other person or entity, if any, subject to liability because of his,
her or its connection with a Holder, and any underwriter and any person who
controls the underwriter within the meaning of the Securities Act (an
"INDEMNITEE") against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including without limitation reasonable attorneys' fees,
expenses and disbursements documented in writing), joint or several, arising out
of or based upon any untrue or alleged untrue statement of material fact
contained in the Registration Statement or any prospectus contained therein, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as and
to the extent that such statement or omission arose out of or was based upon
information regarding the Indemnitee or its plan of distribution which was
furnished in writing by such Indemnitee to the Company expressly for use
therein, provided, further that the Company shall not be liable to any person
who participates as an underwriter in the offering or sale of Registrable Shares
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
<PAGE>
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon (i) an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
information furnished in writing by such Indemnitee to the Company expressly for
use in connection with the Registration Statement or the prospectus contained
therein by such Indemnitee or (ii) such Indemnitee's failure to send or give a
copy of the final prospectus furnished to it by the Company at or prior to the
time such action is required by the Securities Act to the person claiming an
untrue statement or alleged untrue statement or omission or alleged omission if
such statement or omission was corrected in such final prospectus. The
obligations of the Company under this Section 5 shall survive the completion of
any offering of Registrable Shares pursuant to a Registration Statement under
this Agreement or otherwise and shall survive the termination of this Agreement.
6. Covenants of Holders. Each of the Holders hereby agrees to cooperate
--------------------
with the Company and to furnish to the Company all such information in
connection with the preparation of the Registration Statement and any filings
with any state securities commissions as the Company may reasonably request. In
connection with any Demand Registration Statement or any Piggyback Registration
Statement, each Holder hereby agrees, (a) to the extent required by the
Securities Act, to deliver or cause delivery of the prospectus contained in the
Registration Statement to any purchaser of the shares covered by the
Registration Statement from the Holder, (b) to notify the Company of any sale of
Registrable Shares by such Holder and (c) to indemnify the Company, its
officers, directors, employees, agents, representatives and affiliates, and each
person, if any, who controls the Company within the meaning of the Securities
Act, and each other person, if any, subject to liability because of his
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either the Registration Statement or the prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if and to the extent
that such statement or omission arose out of or was based upon information
regarding the Holder or its plan of distribution which was furnished in writing
by such Indemnitee to the Company expressly for use therein, or (ii) the failure
by the Holder to deliver or cause to be delivered the prospectus contained in
the Registration Statement (as amended or supplemented, if applicable)
previously furnished by the Company to the Holder to any purchaser of the shares
covered by the Registration Statement from the Holder. Notwithstanding the
foregoing, (i) in no event will a Holder have any obligation under this Section
6 for amounts the Company pays in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder (which consent shall not be unreasonably withheld) and (ii) the total
amount for which a Holder shall be liable under this Section 6 shall not in any
event exceed the aggregate proceeds received by him or it from the sale of the
Holder's Registrable Shares in
<PAGE>
such registration. The obligations of the Holders under this Section 6 shall
survive the completion of any offering of Registrable Shares pursuant to a
Registration Statement under this Agreement or otherwise and shall survive the
termination of this Agreement.
7. Suspension of Registration Requirement.
--------------------------------------
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of any applicable Registration Statement or the initiation of any proceedings
for that purpose. The Company shall use reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement as soon as practicable.
(b) Notwithstanding anything to the contrary set forth in this Agreement,
the Company's obligation under this Agreement to use reasonable efforts to cause
the Registration Statement and any filings with any state securities commission
to be made or to become effective or to amend or supplement the Registration
Statement shall be suspended in the event and during such period as the Chief
Executive Officer of the Company or its Board of Directors determines in good
faith that pending negotiations relating to, or consummation of, a transaction
or the occurrence of an event that would require additional disclosure of
material information by the Company in the Registration Statement or such filing
(such circumstances being hereinafter referred to as a "SUSPENSION EVENT") that
would make it impractical or unadvisable to cause the Registration Statement or
such filings to be made or to become effective or to amend or supplement the
Registration Statement; provided, however, that such suspension shall continue
only as long as such event or its effect is continuing and has not otherwise
been publicly disclosed and in no event will that suspension exceed sixty (60)
days. The Company agrees not to exercise the rights set forth in this Section
7(b) more than twice in any twelve month period. The Company shall notify the
Holder of the existence of any Suspension Event.
(c) Each holder of Registrable Shares whose Registrable Shares are covered
by a Demand Registration Statement or a Piggyback Registration Statement filed
pursuant to Section 1 hereof agrees, if requested by the managing underwriter or
underwriters in an underwritten offering (an "UNDERWRITTEN OFFERING"), not to
effect any public sale or distribution of any of the securities of the Company
of any class included in such Underwritten Offering, including a sale pursuant
to Rule 144 or Rule 144A under the Securities Act (except as part of such
Underwritten Offering), during the 15-day period prior to, and during the 90-day
period (or such longer period as may be required by the managing underwriter or
underwriters) beginning on, the date of pricing of each Underwritten Offering
(the "UNDERWRITTEN OFFERING PERIOD"), to the extent timely notified in writing
by the managing underwriters. The Company agrees that the rights set forth in
this Section 7(c) may not be exercised more than once in any six month period or
within six months of the Company exercising its rights under Section (7)(b)
above. Furthermore, notwithstanding anything to the contrary set forth in this
Agreement, the
<PAGE>
Company's obligation under this Agreement to use reasonable efforts to cause a
Demand Registration Statement or a Piggyback Registration Statement and any
filings with any state securities commission in connection therewith to be made
or to become effective or to amend or supplement such Registration Statement
shall be suspended in the event and during such period as the Company is
proceeding with an Underwritten Offering if the Company is advised by the
underwriters that the sale of Registrable Shares under such Registration
Statement would have a material adverse effect on the Underwritten Offering.
8. Black-Out Period. Following the effectiveness of any Registration
----------------
Statement and the filings with any state securities commissions in connection
therewith, the Holders agree that they will not effect any sales of the
Registrable Shares pursuant to such Registration Statement or any such filings
at any time after they have received notice from the Company to suspend sales
(i) as a result of the occurrence or existence of any Suspension Event, (ii)
during the Underwritten Offering Period of any Underwritten Offering if
requested by the managing underwriter, or (iii) so that the Company may promptly
correct or update the Registration Statement or such filing pursuant to Section
2(c) or 2(d). The Holder may recommence effecting sales of the Registrable
Shares pursuant to the Registration Statement or such filings following further
notice to such effect from the Company, which notice shall be given by the
Company not later than five (5) business days after the conclusion of any such
Suspension Event or Underwritten Offering Period or the correction of the
Registration Statement, as applicable.
9. Additional Shares. The Company, at its option, may register, under
-----------------
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of Common Stock
(including, without limitation, shares of Common Stock which may be issued to
any of the Holders of Units in the Purchaser) or any shares of Common Stock
owned by any other shareholder or shareholders of the Company.
10. Contribution. If the indemnification provided for in Sections 5 and 6
------------
is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Holder and the parties' relative
<PAGE>
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided, however, that in no event shall the
-------- -------
obligation of any indemnifying party to contribute under this Section 10 exceed
the amount that such indemnifying party would have been obligated to pay by way
of indemnification if the indemnification provided for under Sections 5 or 6
hereof had been available under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 10 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 10, no Holder shall be required to
contribute any amount in excess of the amount by which the gross proceeds from
the sale of the shares of Common Stock of such Holder exceeds the amount of any
damages that such Holder otherwise has been required to pay by reason of such
untrue or alleged untrue statement or omissions.
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.
11. No Other Obligation to Register. Except as otherwise expressly
-------------------------------
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
12. Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented without the prior written consent of the
Company and Holders holding in excess of 75% of the Registrable Shares (or
Partnership Units redeemable or exchangeable for Registrable Shares); and any
amendment, modification or supplement consented to by the Company and the
Holders of a majority of such registrable Shares (or of such Partnership Units)
shall bind all such Holders.
13. Notices. Except as set forth below, all notices and other
-------
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company at the following
address and to the Holder at the address set forth on his or her signature page
to this Agreement (or at such other address for any party as shall be specified
by like notice, provided that notices of a change of address shall be effective
only upon receipt thereof), and further provided that in case of directions to
amend the Registration Statement pursuant to Section 2(b) or Section 6(b), a
Holder must confirm such notice in writing by overnight express delivery with
confirmation of receipt:
<PAGE>
If to the Company: Bradley Real Estate, Inc.
40 Skokie Boulevard
Northbrook, IL 60062
Attn: Thomas P. D'Arcy
President
Telephone: (847) 272-9800
Telecopy: (847) 480-1893
With a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: William B. King, P.C.
Telephone: (617) 570-1000
Telecopy: (617) 523-1231
In addition to the manner of notice permitted above, notices given pursuant to
Sections 1, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
14. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the successors and assigns of the Company. This
Agreement may only be assigned to a transferee of all or a portion of the
Holder's Units in compliance with the Partnership Agreement or a transferee of
all or a portion of the Holder's Registrable Securities which constitute
"restricted securities" in the hands of such transferee, as defined in Rule 144
under the Securities Act. Any attempted assignment other than to a transferee
of all or a portion of a Holder's Units in compliance with the Partnership
Agreement or a transferee of all or a portion of the Holder's Registrable
Securities which constitute "restricted securities" in the hands of such
transferee, as defined in Rule 144 under the Securities Act, will be void and of
no effect and shall terminate all obligations of the Company hereunder with
respect to such Holder.
15. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Maryland applicable to contracts made
and to be performed wholly within said State.
<PAGE>
17. Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
18. Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
BRADLEY OPERATING LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: BRADLEY REAL ESTATE, INC., a
Maryland corporation
Its: General Partner
By: /s/ Richard Heuer
--------------------------------
Name: Richard Heuer
Title: Executive Vice President
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
SPRING MALL ASSOCIATES LIMITED
PARTNERSHIP, an Illinois limited
partnership
By: Equity-Spring Mall, Inc, an
Illinois corporation, its general
partner
By: /s/ Sheli Z. Rosenberg
----------------------------
Name: Sheli Z. Rosenberg
Title: President
Address for Notice:
Two Riverside Plaza
Suite 1000
Chicago, IL 60606
Attn: Andrew Levin
<PAGE>
EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (this "Agreement") is entered into as of
December 31, 1997 by and between Bradley Real Estate, Inc., a Maryland
corporation (the "Company") and Baken Park Partners Limited Partnership, South
Dakota limited partnership (successor in interest to Baken Park Partners, a
South Dakota general partnership) ("Contributor").
WHEREAS, pursuant to the Agreement to Acquire Limited Partnership Interests
and to Contribute by and between Contributor, Contributor's Existing Partners,
the Company and Bradley Operating Limited Partnership (the "Operating
Partnership") dated as of November 20, 1997, Contributor will receive units of
limited partnership interest ("Units") in the Operating Partnership, which may
be redeemed for cash or, at the option of the Company, for the number of shares
of the Company's common stock, $.01 par value ("Common Stock"), issuable
pursuant to the Operating Partnership's Second Restated Agreement of Limited
Partnership dated as of September 2, 1997 (the "Partnership Agreement").
WHEREAS, Contributor may distribute such Units to (i) the individual
partners of Contributor listed on Schedule A attached hereto or (ii) the estates
----------
or beneficiaries of the estates of deceased partners of Contributor (each such
holder of Units, including Contributor, is individually referred to herein as a
"Holder" and collectively as the "Holders").
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Registration.
------------
(a) Registration Statement Covering Issuance of Common Stock. The Company
--------------------------------------------------------
will use its reasonable efforts to (i) file a registration statement with the
Securities and Exchange Commission (the "SEC") under Rule 415 under the
Securities Act of 1933 (the "Securities Act") relating to the issuance to the
Holders of all shares of Common Stock issuable upon the redemption or in
exchange for their Units (a "Shelf Registration Statement"), and (ii) cause such
Shelf Registration Statement to be declared effective by the SEC within fourteen
(14) days after the first date upon which the Units may be redeemed. The
Company agrees to use its reasonable efforts to keep such Shelf Registration
Statement (or in the event such initial Shelf Registration Statement is
withdrawn or terminated for any reason, to keep a successor Shelf Registration
Statement) continuously effective until such time as all of the Units have been
redeemed for cash or, at the option of the Company, for the number of shares of
Common Stock issuable pursuant to the Partnership Agreement. In the event that
the Company is unable to cause such Shelf Registration Statement to be declared
effective by the SEC or is unable to keep such Shelf Registration Statement
effective until such time as all of the Units have been redeemed for cash or, at
the option of the Company, for the number of
<PAGE>
shares issuable pursuant to the Partnership Agreement, then each Holder shall
have the rights set forth in Section 1(b) and 1(c) below.
(b) Demand Registration.
-------------------
(i) After the first date upon which Units held by the Holders may be
redeemed until the date on which there are no Registrable Shares (as hereinafter
defined) remaining, subject to the conditions set forth in this Agreement,
including without limitation the conditions set forth in Section 1(b)(ii) below,
any Holder or Holders may request that the Company cause to be filed a
registration statement (a "Demand Registration Statement") under Rule 415 under
the Securities Act relating to the sale by such Holders of their previously or
concurrently issued Registrable Shares in accordance with the terms hereof. As
used in this Agreement, the term "Registrable Shares" means shares of Common
Stock issued or to be issued to the Holders upon redemption or in exchange for
their Units, excluding (A) Common Stock for which a Registration Statement
relating to the issuance or sale thereof shall have become effective under the
Securities Act and which have been issued or sold, as applicable, under such
Registration Statement, (B) Common Stock sold pursuant to Rule 144 under the
Securities Act or (C) Common Stock which, together with all other Registrable
Shares held by such Holder and any other Holder whose sales of Registrable
Shares must be aggregated with sales of such Holder pursuant to Rule 144(e), is
eligible for sale pursuant to Rule 144(e) under the Securities Act. Upon
receipt of any such request, the Company shall give written notice of such
proposed registration to all Holders of Units and Registrable Shares. Such
Holders shall have the right, by giving written notice to the Company within
fifteen (15) business days after such notice referred to in the preceding
sentence has been given by the Company to elect to have included in the Demand
Registration Statement such of their Registrable Shares as each Holder may
request in such notice of election. Thereupon, the Company shall use reasonable
efforts to cause such Demand Registration Statement to be filed and declared
effective by the SEC for all Registrable Shares which the Company has been
requested to register as soon as practicable thereafter. The Company agrees to
use reasonable efforts to keep the Demand Registration Statement continuously
effective until the earliest of (a) the date on which the Holders no longer hold
any Registrable Shares registered under the Demand Registration Statement, (b)
the date on which the Registrable Shares registered under the Demand
Registration Statement held by each Holder may, together with all other
Registrable Shares held by such Holder and any other Holder whose sales of
Registrable Shares must be aggregated with sales of such Holder pursuant to Rule
144(e), be sold by such Holder pursuant to Rule 144(e) under the Securities Act
or (c) the date which is twelve (12) months from the effective date of such
Demand Registration Statement. The Company shall not be required to file and
effect a new Demand Registration Statement pursuant to this Section 1(b) until a
period of twelve (12) months has elapsed from the termination of the
registration statement with respect to Registrable Shares covered by a prior
registration request.
(ii) The Company shall have no obligation under Section 1(b)(i) unless
the following conditions are satisfied:
2
<PAGE>
Any Holder who requests that the Company cause to be filed a Demand
Registration Statement pursuant to Section 1(b)(i) must provide to the Company a
certificate (the "Authorizing Certificate") that sets forth (i) the name and
address of the Holder, (ii) the number of Registrable Shares owned by such
Holder, and, if different, the number of Registrable Shares such Holder has
elected to have registered, (iii) the number of all shares of Common Stock of
the Company (including the Registrable Shares) owned by such Holder, (iv) the
number of shares of Common Stock if any of such Holder that are not being
registered and that will be owned by such Holder after the sale of all shares to
be registered, (v) a certification from each such Holder that it is requesting
the registration of only those shares of Common Stock received by such Holder
upon the redemption of its Units pursuant to the Partnership Agreement, and (vi)
such further information as the Company may reasonably request in connection
with such Registration Statement. If the Company determines that a Holder's
shares of Common Stock have become eligible for sale pursuant to Rule 144(e),
the Company shall, at the request of such Holder, deliver to such Holder an
opinion of counsel to such effect.
(c) Piggyback Registration. If at any time after the first date upon which
----------------------
Units held by the Holders may be redeemed and until the date on which there are
no Registrable Shares remaining the Company proposes to file a registration
statement under the Securities Act with respect to an offering of Common Stock
solely for cash (other than a registration statement (i) on Form S-8 or any
successor form or in connection with any employee or director welfare, benefit
or compensation plan, (ii) on Form S-4 or any successor form or in connection
with an exchange offer, (iii) in connection with a rights offering or a dividend
reinvestment and share purchase plan offered exclusively to existing holders of
Common Stock, (iv) in connection with an offering solely to employees of the
Company or its affiliates, (v) relating to a transaction pursuant to Rule 145 of
the Securities Act, or (vi) a shelf registration on Form S-3 or any successor
form), whether or not for its own account (a "Piggyback Registration
Statement"), the Company shall give to the Holders of Units and Registrable
Shares written notice of such proposed filing at least ten (10) business days
before filing. The notice referred to in the preceding sentence shall offer
Holders the opportunity to register such amount of Registrable Shares as each
Holder may request (a "Piggyback Registration"). Subject to the provisions of
Section 2 below, the Company shall include in such Piggyback Registration all
Registrable Shares requested to be included in the registration for which the
Company has received an Authorizing Certificate within five (5) business days
after the notice referred to above has been given by the Company to the Holders.
Holders of Registrable Shares shall be permitted to withdraw all or part of the
Registrable Shares from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration. If a Piggyback Registration is
an underwritten registration on behalf of the Company and the managing
underwriter advises the Company that the total number of shares of Common Stock
requested to be included in such registration exceeds the number of shares of
Common Stock which can be sold in such offering, the Company will include in
such registration in the following priority: (i) first, all shares of Common
Stock the Company proposes to sell and (ii) second, up to the full number of
applicable Registrable Shares requested to be included in such registration
which, in the opinion of such managing underwriter, can be sold without
adversely affecting the price range
3
<PAGE>
or probability of success of such offering, which shall be allocated among the
Holders requesting registration and all other stockholders requesting
registration on a pro rata basis. No Registrable Securities or other shares of
Common Stock requested to be included in a registration pursuant to demand
registration rights shall be excluded from the underwriting unless all
securities other than such securities are first excluded. Any Demand
Registration Statement, Piggyback Registration Statement or Shelf Registration
Statement is sometimes referred to as a "Registration Statement."
2. Registration Procedures.
-----------------------
(a) The Company shall notify each Holder of the effectiveness of any
applicable Registration Statement and shall furnish to each Holder with respect
to a Shelf Registration Statement, a copy of the prospectus included therein or,
with respect to a Demand Registration Statement or a Piggyback Registration
Statement, such number of copies of the Registration Statement (including any
amendments, supplements and exhibits), the prospectus contained therein
(including each preliminary prospectus), any documents incorporated by reference
in the Registration Statement and such other documents as such Holder may
reasonably request in order to facilitate its sale of the Registrable Shares in
the manner described in the Registration Statement.
(b) The Company shall prepare and file with the SEC from time to time such
amendments and supplements to the Registration Statement and prospectus used in
connection therewith as may be necessary to keep the Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the issuance or disposition of all the Registrable Shares until the earlier
of (i) such time as all of the Registrable Shares have been issued or disposed
of in accordance with the intended methods of issuance by the Company, or
disposition by the Holders, as set forth in the Registration Statement or (ii)
the date on which the Registration Statement ceases to be effective in
accordance with the terms of Section 1. Upon ten (10) business days' notice, the
Company shall file any supplement or post-effective amendment to the
Registration Statement with respect to such Holder's interests in or plan of
distribution of Registrable Shares that is reasonably necessary to permit the
sale of the Holder's Registrable Shares pursuant to the Registration Statement
and the Company shall file any necessary listing applications or amendments to
the existing applications to cause the shares to be then listed or quoted on the
primary exchange or quotation system on which the Common Stock is then listed or
quoted. The Company agrees to deliver copies of the prospectus as contained in
such Registration Statement promptly following effectiveness thereof to the New
York Stock Exchange (or any other applicable national securities exchange) as
contemplated by SEC Rule 157.
(c) The Company shall promptly notify each Holder of, and confirm in
writing, any request by the SEC for amendments or supplements to the
Registration Statement or the prospectus related thereto or for additional
information. In addition, the Company shall promptly respond to such SEC
requests and shall promptly notify each Holder of, and confirm in writing, the
filing of the Registration Statement, any prospectus supplement related thereto
4
<PAGE>
or any post-effective amendment to the Registration Statement and the
effectiveness of any post-effective amendment.
(d) The Company shall promptly notify each Holder, at any time when a
prospectus relating to the Registration Statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. In such
event and subject to paragraph 7 of this Agreement, the Company shall promptly
prepare and furnish to each Holder a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of Registrable Shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading.
3. State Securities Laws. Subject to the conditions set forth in this
---------------------
Agreement, the Company shall, promptly upon the filing of a Registration
Statement including Registrable Shares, file such documents as may be necessary
to register or qualify the Registrable Shares under the securities or "Blue Sky"
laws of such states as any Holder may reasonably request to the extent that
registration or qualification under such laws is necessary in order that the
Registrable Shares may be legally sold in such states, and the Company shall use
reasonable efforts, in the case of a Demand Registration Statement or a
Piggyback Registration Statement, and best efforts, in the case of a Shelf
Registration Statement, to cause such filings to become effective; provided,
--------
however, that with respect to a Demand Registration Statement or a Piggyback
- -------
Registration Statement, the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any such state in which it
is not then qualified or to file any general consent to service of process in
any such state. Once effective, the Company shall use reasonable efforts, in
the case of a Demand Registration Statement or a Piggyback Registration
Statement, and best efforts, in the case of a Shelf Registration Statement, to
keep such filings effective until the earlier of (a) such time as all of the
Registrable Shares have been issued by the Company, or disposed of in accordance
with the intended methods of disposition by the Holder, as set forth in the
Registration Statement, (b) in the case of a particular state, a Holder has
notified the Company that it no longer requires effective filing in such state
in accordance with its original request for filing or (c) the date on which the
Registration Statement ceases to be effective with the SEC. The Company shall
promptly notify each Holder of, and confirm in writing, the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Shares for sale under the securities or "Blue Sky" laws of
any jurisdiction or the initiation or threat of any proceeding for such purpose.
4. Expenses. The Company shall bear all expenses incurred in connection
--------
with the registration of the Registrable Shares pursuant to Section 1(a) and
Section 1(c) of this Agreement. In addition, the Company will pay all expenses
in connection with the registration
5
<PAGE>
of Registrable Shares pursuant to Section 1(b) of this Agreement provided that
the registration is for One Million Dollars or more of Registerable Shares. The
Holders shall bear their ratable share of all expenses incurred by the Company
in connection with a registration in which the Holders are included pursuant to
Section 1(b) of this Agreement based on the number of Registrable Shares
included to the total number of shares of Common Stock so registered for each
Registration Statement registering less than the applicable amount specified in
the previous sentence for such Holder. Such expenses shall include, without
limitation, all printing, legal and accounting expenses incurred by the Company
and all registration and filing fees imposed by the SEC, any state securities
commission or the New York Stock Exchange or, if the Common Stock is not then
listed on the New York Stock Exchange, the principal national securities
exchange or national market system on which the Common Stock is then traded or
quoted. Holders shall be responsible for any brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable Shares
and for any legal, accounting and other expenses incurred by them in connection
with any Registration Statement.
5. Indemnification by the Company. In connection with any Demand
------------------------------
Registration Statement or any Piggyback Registration Statement, the Company
agrees to indemnify each of the Holders and their respective officers,
directors, employees, agents, representatives and affiliates, and each person or
entity, if any, that controls a Holder within the meaning of the Securities Act,
and each other person or entity, if any, subject to liability because of his,
her or its connection with a Holder, and any underwriter and any person who
controls the underwriter within the meaning of the Securities Act (an
"Indemnitee") against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including without limitation reasonable attorneys' fees,
expenses and disbursements documented in writing), joint or several, arising out
of or based upon any untrue or alleged untrue statement of material fact
contained in the Registration Statement or any prospectus contained therein, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as and
to the extent that such statement or omission arose out of or was based upon
information regarding the Indemnitee or its plan of distribution which was
furnished in writing by such Indemnitee to the Company expressly for use
therein, provided, further that the Company shall not be liable to any person
who participates as an underwriter in the offering or sale of Registrable Shares
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 or is based upon (i) 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, amendment or
supplement in reliance upon and in conformity with information furnished in
writing by such Indemnitee to the Company expressly for use in connection with
the Registration Statement or the prospectus contained therein by such
Indemnitee or (ii) such Indemnitee's failure to send or give a copy of the final
prospectus furnished to it by the Company at or prior to the time such action is
required by the Securities Act to the person claiming an untrue statement or
alleged untrue statement or omission or
6
<PAGE>
alleged omission if such statement or omission was corrected in such final
prospectus. The obligations of the Company under this Section 5 shall survive
the completion of any offering of Registrable Shares pursuant to a Registration
Statement under this Agreement or otherwise and shall survive the termination of
this Agreement.
6. Covenants of Holders. Each of the Holders hereby agrees to cooperate
--------------------
with the Company and to furnish to the Company all such information in
connection with the preparation of the Registration Statement and any filings
with any state securities commissions as the Company may reasonably request. In
connection with any Demand Registration Statement or any Piggyback Registration
Statement, each Holder hereby agrees, (a) to the extent required by the
Securities Act, to deliver or cause delivery of the prospectus contained in the
Registration Statement to any purchaser of the shares covered by the
Registration Statement from the Holder, (b) to notify the Company of any sale of
Registrable Shares by such Holder and (c) to indemnify the Company, its
officers, directors, employees, agents, representatives and affiliates, and each
person, if any, who controls the Company within the meaning of the Securities
Act, and each other person, if any, subject to liability because of his
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either the Registration Statement or the prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if and to the extent
that such statement or omission arose out of or was based upon information
regarding the Holder or its plan of distribution which was furnished in writing
by such Indemnitee to the Company expressly for use therein, or (ii) the failure
by the Holder to deliver or cause to be delivered the prospectus contained in
the Registration Statement (as amended or supplemented, if applicable)
previously furnished by the Company to the Holder to any purchaser of the shares
covered by the Registration Statement from the Holder. Notwithstanding the
foregoing, (i) in no event will a Holder have any obligation under this Section
6 for amounts the Company pays in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder (which consent shall not be unreasonably withheld) and (ii) the total
amount for which a Holder shall be liable under this Section 6 shall not in any
event exceed the aggregate proceeds received by him or it from the sale of the
Holder's Registrable Shares in such registration. The obligations of the
Holders under this Section 6 shall survive the completion of any offering of
Registrable Shares pursuant to a Registration Statement under this Agreement or
otherwise and shall survive the termination of this Agreement.
7. Suspension of Registration Requirement.
--------------------------------------
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of any applicable Registration Statement or the initiation of any proceedings
for that purpose. The Company shall use reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement as soon as practicable.
7
<PAGE>
(b) Notwithstanding anything to the contrary set forth in this Agreement,
the Company's obligation under this Agreement to use reasonable efforts to cause
the Registration Statement and any filings with any state securities commission
to be made or to become effective or to amend or supplement the Registration
Statement shall be suspended in the event and during such period as the Chief
Executive Officer of the Company or its Board of Directors determines in good
faith that pending negotiations relating to, or consummation of, a transaction
or the occurrence of an event that would require additional disclosure of
material information by the Company in the Registration Statement or such filing
(such circumstances being hereinafter referred to as a "Suspension Event") that
would make it impractical or unadvisable to cause the Registration Statement or
such filings to be made or to become effective or to amend or supplement the
Registration Statement; provided, however, that such suspension shall continue
only as long as such event or its effect is continuing and has not otherwise
been publicly disclosed and in no event will that suspension exceed sixty (60)
days. The Company agrees not to exercise the rights set forth in this Section
7(b) more than twice in any twelve month period. The Company shall notify the
Holder of the existence of any Suspension Event.
(c) Each holder of Registrable Shares whose Registrable Shares are covered
by a Demand Registration Statement or a Piggyback Registration Statement filed
pursuant to Section 1 hereof agrees, if requested by the managing underwriter or
underwriters in an underwritten offering (an "Underwritten Offering"), not to
effect any public sale or distribution of any of the securities of the Company
of any class included in such Underwritten Offering, including a sale pursuant
to Rule 144 or Rule 144A under the Securities Act (except as part of such
Underwritten Offering), during the 15-day period prior to, and during the 90-day
period (or such longer period as may be required by the managing underwriter or
underwriters) beginning on, the date of pricing of each Underwritten Offering
(the "Underwritten Offering Period"), to the extent timely notified in writing
by the managing underwriters. The Company agrees that the rights set forth in
this Section 7(c) may not be exercised more than once in any six month period or
within six months of the Company exercising its rights under Section (7)(b)
above. Furthermore, notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use reasonable
efforts to cause a Demand Registration Statement or a Piggyback Registration
Statement and any filings with any state securities commission in connection
therewith to be made or to become effective or to amend or supplement such
Registration Statement shall be suspended in the event and during such period as
the Company is proceeding with an Underwritten Offering if the Company is
advised by the underwriters that the sale of Registrable Shares under such
Registration Statement would have a material adverse effect on the Underwritten
Offering.
8. Black-Out Period. Following the effectiveness of any Registration
----------------
Statement and the filings with any state securities commissions in connection
therewith, the Holders agree that they will not effect any sales of the
Registrable Shares pursuant to such Registration Statement or any such filings
at any time after they have received notice from the Company to suspend sales
(i) as a result of the occurrence or existence of any Suspension Event, (ii)
during the Underwritten Offering Period of any Underwritten Offering, or (iii)
so that the Company
8
<PAGE>
may promptly correct or update the Registration Statement or such filing
pursuant to Section 2(c) or 2(d). The Holder may recommence effecting sales of
the Registrable Shares pursuant to the Registration Statement or such filings
following further notice to such effect from the Company, which notice shall be
given by the Company not later than five (5) business days after the conclusion
of any such Suspension Event or Underwritten Offering Period or the correction
of the Registration Statement, as applicable.
9. Additional Shares. The Company, at its option, may register, under
-----------------
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of Common Stock
(including, without limitation, shares of Common Stock which may be issued to
any of the Holders of Units in the Operating Partnership) or any shares of
Common Stock owned by any other shareholder or shareholders of the Company.
10. Contribution. If the indemnification provided for in Sections 5 and 6
------------
is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
- -------- -------
party to contribute under this Section 10 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 5 or 6 hereof had been available
under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 10 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 10, no Holder shall be required to
contribute any amount in excess of the amount by which the gross proceeds from
the sale of the shares of Common Stock of such Holder exceeds the amount of any
damages that such Holder otherwise has been required to pay by reason of such
untrue or alleged untrue statement or omissions.
9
<PAGE>
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.
11. No Other Obligation to Register. Except as otherwise expressly
-------------------------------
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
12. Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented without the prior written consent of the
Company and Holders holding in excess of 75% of the Registrable Shares (or
Partnership Units redeemable or exchangeable for Registrable Shares); and any
amendment, modification or supplement consented to by the Company and the
Holders of a majority of such registrable Shares (or of such Partnership Units)
shall bind all such Holders.
13. Notices. Except as set forth below, all notices and other
-------
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company at the following
address and to the Holder at the address set forth on his or her signature page
to this Agreement (or at such other address for any party as shall be specified
by like notice, provided that notices of a change of address shall be effective
only upon receipt thereof), and further provided that in case of directions to
amend the Registration Statement pursuant to Section 2(b) or Section 6(b), a
Holder must confirm such notice in writing by overnight express delivery with
confirmation of receipt:
If to the Company: Bradley Real Estate, Inc.
40 Skokie Boulevard
Northbrook, IL 60062
Attn: Thomas P. D'Arcy, President
Telephone: (847) 272-9800
Telecopy: (847) 480-1893
With a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: William B. King, P.C.
Telephone: (617) 570-1000
Telecopy: (617) 523-1231
10
<PAGE>
In addition to the manner of notice permitted above, notices given pursuant to
Sections 1, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
14. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the successors and assigns of the Company. This
Agreement may only be assigned to a transferee of all or a portion of the
Holder's Units in compliance with the Partnership Agreement or a transferee of
all or a portion of the Holder's Registrable Securities which constitute
"restricted securities" in the hands of such transferee, as defined in Rule 144
under the Securities Act. Any attempted assignment other than to a transferee of
all or a portion of a Holder's Units in compliance with the Partnership
Agreement or a transferee of all or a portion of the Holder's Registrable
Securities which constitute "restricted securities" in the hands of such
transferee, as defined in Rule 144 under the Securities Act, will be void and of
no effect and shall terminate all obligations of the Company hereunder with
respect to such Holder.
15. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Maryland applicable to contracts made
and to be performed wholly within said State.
17. Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
18. Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[Remainder of Page Intentionally Left Blank]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BRADLEY REAL ESTATE, INC.
/s/ Richard L. Heuer
----------------------------------------
Name: Richard L. Heuer
Title: Executive Vice President
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
Baken Park Partners Limited Partnership
By: /s/ Richard K. Tobias
-------------------------------------
Name: Richard K. Tobias
Title: Managing General Partner
Address for Notice:
Baken Park Partners Limited Partnership
Baken Park Shopping Center
2001 West Main Street
Rapid City, South Dakota 57702
Attn: Richard K. Tobias, Managing Partner
13
<PAGE>
SCHEDULE A
CONSTITUENT PARTNERS AND PERMITTED
ASSIGNEES OF BAKEN PARK PARTNERS LIMITED PARTNERSHIP
- -------------------------------------------------------
Name and Address Percentage of Interest and
Units
- -------------------------------------------------------
Existing Partners to be Issued Units:
- -------------------------------------------------------
Richard K. Tobias 16%
4315 N. Glenview Pl.
Rapid City, SD 57702
- -------------------------------------------------------
Mark J. Mollers 30%
P.O. Box 2950
Rapid City, SD 57709
- -------------------------------------------------------
Richard Riley 11%
6637 Parkwood Road
Edina, MN 55436
- -------------------------------------------------------
Thomas Strand 3.375%
90 South Seventh Street
Suite 4300
Minneapolis, MN 55402
- -------------------------------------------------------
Kenneth Dawkins 6.75%
3800 West 80th Street
Suite 260
Bloomington, MN 55431
- -------------------------------------------------------
Michael Dougherty 6.75%
90 South Seventh Street
Suite 4300
Minneapolis, MN 55402
- -------------------------------------------------------
Assignees to be Issued Units:
- -------------------------------------------------------
Bradley Real Estate, Inc. 26.125%
40 Skokie Boulevard
Northbrook, IL 60062
- -------------------------------------------------------
14
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
------------------------------------
By: /s/ Richard K. Tobias
---------------------------------
By:
------------------------------
Address for Notice:
4315 N. Glenview Place
Rapid City, SD 57702
15
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
-------------------------------
By: /s/ Mark J. Mollers
-------------------------------
By:
-------------------------------
Address for Notice:
P.O. Box 2950
Rapid City, SD 57709
16
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
-------------------------------------
By: /s/ Richard Riley
---------------------------------
By:
------------------------------
Address for Notice:
6637 Parkwood Road
Edina, Minnesota 55436
17
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
-----------------------------------------
By: /s/ Thomas Strand
-------------------------------------
By:
----------------------------------
By:
------------------------------
Address for Notice:
Thomas Strand
9 Oriole Lane
North Oaks, MN 55127
18
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
----------------------------------
By: /s/ Kenneth E. Dawkins
------------------------------
By:
---------------------------
By:
------------------------
Address for Notice:
Kenneth E. Dawkins
768 Goodrich Avenue
Saint Paul, MN 55105
19
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
-------------------------------------
By: /s/ Michael E. Dougherty
---------------------------------
By:
------------------------------
By:
--------------------------
Address for Notice:
Michael E. Dougherty
90 South Seventh Street
Suite 4300
Minneapolis, MN 55402
20
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
----------------------------------------
By: /s/ Ralph McGinley
------------------------------------
By:
--------------------------------
By:
------------------------------
Address for Notice:
21 Hay Camp Road
North Oaks, Minnesota 55127
21
<PAGE>
EXHIBIT 99.4
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
------------------------------------------
This Amendment to Registration Rights Agreement (this "Agreement") is
entered into as of September 25, 1997 by and between Bradley Real Estate, Inc.,
a Maryland corporation (the "Company") and County Line 31 Company, L.P.
("Contributor").
WHEREAS, pursuant to a Contribution Agreement dated June 20, 1997 by and
between Contributor and Bradley Operating Limited Partnership (the "Operating
Partnership"), Contributor received units of limited partnership interest
("Units") in the Operating Partnership, which may be redeemed for cash or, at
the option of the Company, for the number of shares of the Company's common
stock, $.01 par value ("Common Stock"), issuable pursuant to the Operating
Partnership's Second Restated Agreement of Limited Partnership (the "Partnership
Agreement").
WHEREAS, Contributor is distributing Units to (i) the individual partners
of Contributor listed on Schedule A of the Registration Rights Agreement dated
----------
as of July 31, 1998 (the "Registration Rights Agreement") or (ii) the estates or
beneficiaries of the estates of deceased partners of Contributor (each such
holder of Units, including Contributor, is individually referred to herein as a
"Holder" and collectively as the "Holders").
WHEREAS, in connection with the distribution of the Units the Company has
requested an amendment to the Registration Rights Agreement to conform that
agreement with several other similar agreements entered into by the Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
The first sentence of Section 1 of the Registration Rights Agreement is
hereby deleted and the following is replaced therefor:
The Company will use its reasonable efforts to (i) file a registration
statement with the Securities and Exchange Commission (the "SEC")
under Rule 415 under the Securities Act of 1933 (the "Securities Act")
relating to the issuance to the Holders of all shares of Common Stock
issuable upon the redemption or in exchange for their Units (a "Shelf
Registration Statement") within fourteen (14) days after the first
date upon which the Units may be redeemed, and (ii) cause such Shelf
Registration Statement to be declared effective by the SEC as soon as
practical thereafter.
Except as specifically amended hereby, the Registration Rights Agreement
remains in full force and effect.
(i)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BRADLEY REAL ESTATE, INC.
By: /s/ Thomas P. D'Arcy
---------------------------------
Name: Thomas P. D'Arcy
Title: President
(ii)
<PAGE>
Registration Rights Agreement
Holder Signature Page
COUNTY LINE 31 COMPANY, L.P.
By: /s/ John A. Wallace
------------------------------
Name: John A. Wallace
Title: General Partner and
Member of Executive Committee
Address for Notice:
c/o F.C. Tucker Company, Inc.
9279 N. Meridian Street, Suite 100
Indianapolis, Indiana 46260
(iii)
<PAGE>
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (this "Agreement") is entered into as of
July 31, 1997 by and between Bradley Real Estate, Inc., a Maryland corporation
(the "Company") and County Line 31 Company, L.P. ("Contributor").
WHEREAS, pursuant to a Contribution Agreement dated June 20, 1997 by and
between Contributor and Bradley Operating Limited Partnership (the "Operating
Partnership"), Contributor will receive units of limited partnership interest
("Units") in the Operating Partnership, which may be redeemed for cash or, at
the option of the Company, for the number of shares of the Company's common
stock, $.01 par value ("Common Stock"), issuable pursuant to the Operating
Partnership's Amended and Restated Agreement of Limited Partnership (the
"Partnership Agreement").
WHEREAS, Contributor may after the expiration of the Holding Period (as
defined in that certain Admission of Limited Partnership Agreement dated of even
date between Contributor, the Company and the Operating Partnership) distribute
such Units to (i) the individual partners of Contributor listed on Schedule A
----------
attached hereto or (ii) the estates or beneficiaries of the estates of deceased
partners of Contributor (each such holder of Units, including Contributor, is
individually referred to herein as a "Holder" and collectively as the
"Holders").
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Registration.
------------
(a) Registration Statement Covering Issuance of Common Stock. The Company
--------------------------------------------------------
will use its efforts to (i) file a registration statement with the Securities
and Exchange Commission (the "SEC") under Rule 415 under the Securities Act of
1933 (the "Securities Act") relating to the issuance to the Holders of all
shares of Common Stock issuable upon the redemption or in exchange for their
Units (a "Shelf Registration Statement"), and (ii) cause such Shelf Registration
Statement to be declared effective by the SEC prior to the first date upon which
the Units may be redeemed. The Company agrees to use its reasonable efforts to
keep such Shelf Registration Statement (or in the event such initial Shelf
Registration Statement is withdrawn or terminated for any reason, to keep a
successor Shelf Registration Statement) continuously effective until such time
as all of the Units have been redeemed for cash or, at the option of the
Company, for the number of shares of Common Stock issuable pursuant to the
Partnership Agreement. In the event that the Company is unable to cause such
Shelf Registration Statement to be declared effective by the SEC or is unable to
keep such Shelf Registration Statement effective until such time as all of the
Units have been redeemed for cash
(i)
<PAGE>
or, at the option of the Company, for the number of shares issuable pursuant to
the Partnership Agreement, then each Holder shall have the rights set forth in
Section 1(b) and 1(c) below.
(b) Demand Registration.
-------------------
(i) After the first date upon which Units held by the Holders may be
redeemed until the date on which there are no Registrable Shares (as hereinafter
defined) remaining, subject to the conditions set forth in this Agreement,
including without limitation the conditions set forth in Section 1(b)(ii) below,
any Holder or Holders may request that the Company cause to be filed a
registration statement (a "Demand Registration Statement") under Rule 415 under
the Securities Act relating to the sale by such Holders of their previously or
concurrently issued Registrable Shares in accordance with the terms hereof. As
used in this Agreement, the term "Registrable Shares" means shares of Common
Stock issued or to be issued to the Holders upon redemption or in exchange for
their Units, excluding (A) Common Stock for which a Registration Statement
relating to the issuance or sale thereof shall have become effective under the
Securities Act and which have been issued or sold, as applicable, under such
Registration Statement, (B) Common Stock sold pursuant to Rule 144 under the
Securities Act or (C) Common Stock which, together with all other Registrable
Shares held by such Holder and any other Holder whose sales of Registrable
Shares must be aggregated with sales of such Holder pursuant to Rule 144(e), is
eligible for sale pursuant to Rule 144(e) under the Securities Act. Upon
receipt of any such request, the Company shall give written notice of such
proposed registration to all Holders of Units and Registrable Shares. Such
Holders shall have the right, by giving written notice to the Company within
fifteen (15) business days after such notice referred to in the preceding
sentence has been given by the Company to elect to have included in the Demand
Registration Statement such of their Registrable Shares as each Holder may
request in such notice of election. Thereupon, the Company shall use reasonable
efforts to cause such Demand Registration Statement to be filed and declared
effective by the SEC for all Registrable Shares which the Company has been
requested to register as soon as practicable thereafter. The Company agrees to
use reasonable efforts to keep the Demand Registration Statement continuously
effective until the earliest of (a) the date on which the Holders no longer hold
any Registrable Shares registered under the Demand Registration Statement, (b)
the date on which the Registrable Shares registered under the Demand
Registration Statement held by each Holder may, together with all other
Registrable Shares held by such Holder and any other Holder whose sales of
Registrable Shares must be aggregated with sales of such Holder pursuant to Rule
144(e), be sold by such Holder pursuant to Rule 144(e) under the Securities Act
or (c) the date which is twelve (12) months from the effective date of such
Demand Registration Statement. The Company shall not be required to file and
effect a new Demand Registration Statement pursuant to this Section 1(b) until a
period of twelve (12) months has elapsed from the termination of the
registration statement with respect to Registrable Shares covered by a prior
registration request.
(ii) The Company shall have no obligation under Section 1(b)(i) unless
the following conditions are satisfied:
(ii)
<PAGE>
Any Holder who requests that the Company cause to be filed a Demand
Registration Statement pursuant to Section 1(b)(i) must provide to the Company a
certificate (the "Authorizing Certificate") that sets forth (i) the name and
address of the Holder, (ii) the number of Registrable Shares owned by such
Holder, and, if different, the number of Registrable Shares such Holder has
elected to have registered, (iii) the number of all shares of Common Stock of
the Company (including the Registrable Shares) owned by such Holder, (iv) the
number of shares of Common Stock if any of such Holder that are not being
registered and that will be owned by such Holder after the sale of all shares to
be registered, (v) a certification from each such Holder that it is requesting
the registration of only those shares of Common Stock received by such Holder
upon the redemption of its Units pursuant to the Partnership Agreement, and (vi)
such further information as the Company may reasonably request in connection
with such Registration Statement. If the Company determines that a Holder's
shares of Common Stock have become eligible for sale pursuant to Rule 144(e),
the Company shall, at the request of such Holder, deliver to such Holder an
opinion of counsel to such effect.
(c) Piggyback Registration. If at any time after the first date upon which
----------------------
Units held by the Holders may be redeemed and until the date on which there are
no Registrable Shares remaining the Company proposes to file a registration
statement under the Securities Act with respect to an offering of Common Stock
solely for cash (other than a registration statement (i) on Form S-8 or any
successor form or in connection with any employee or director welfare, benefit
or compensation plan, (ii) on Form S-4 or any successor form or in connection
with an exchange offer, (iii) in connection with a rights offering or a dividend
reinvestment and share purchase plan offered exclusively to existing holders of
Common Stock, (iv) in connection with an offering solely to employees of the
Company or its affiliates, (v) relating to a transaction pursuant to Rule 145 of
the Securities Act, or (vi) a shelf registration on Form S-3 or any successor
form), whether or not for its own account (a "Piggyback Registration
Statement"), the Company shall give to the Holders of Units and Registrable
Shares written notice of such proposed filing at least ten (10) business days
before filing. The notice referred to in the preceding sentence shall offer
Holders the opportunity to register such amount of Registrable Shares as each
Holder may request (a "Piggyback Registration"). Subject to the provisions of
Section 2 below, the Company shall include in such Piggyback Registration all
Registrable Shares requested to be included in the registration for which the
Company has received an Authorizing Certificate within five (5) business days
after the notice referred to above has been given by the Company to the Holders.
Holders of Registrable Shares shall be permitted to withdraw all or part of the
Registrable Shares from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration. If a Piggyback Registration is
an underwritten registration on behalf of the Company and the managing
underwriter advises the Company that the total number of shares of Common Stock
requested to be included in such registration exceeds the number of shares of
Common Stock which can be sold in such offering, the Company will include in
such registration in the following priority: (i) first, all shares of Common
Stock the Company proposes to sell and (ii) second, up to the full number of
applicable Registrable Shares requested to be included in such registration
which, in the opinion of such managing underwriter, can be sold without
adversely affecting the price range
(iii)
<PAGE>
or probability of success of such offering, which shall be allocated among the
Holders requesting registration and all other stockholders requesting
registration on a pro rata basis. No Registrable Securities or other shares of
Common Stock requested to be included in a registration pursuant to demand
registration rights shall be excluded from the underwriting unless all
securities other than such securities are first excluded. Any Demand
Registration Statement, Piggyback Registration Statement or Shelf Registration
Statement is sometimes referred to as a "Registration Statement."
2. Registration Procedures.
-----------------------
(a) The Company shall notify each Holder of the effectiveness of any
applicable Registration Statement and shall furnish to each Holder with respect
to a Shelf Registration Statement, a copy of the prospectus included therein or,
with respect to a Demand Registration Statement or a Piggyback Registration
Statement, such number of copies of the Registration Statement (including any
amendments, supplements and exhibits), the prospectus contained therein
(including each preliminary prospectus), any documents incorporated by reference
in the Registration Statement and such other documents as such Holder may
reasonably request in order to facilitate its sale of the Registrable Shares in
the manner described in the Registration Statement.
(b) The Company shall prepare and file with the SEC from time to time such
amendments and supplements to the Registration Statement and prospectus used in
connection therewith as may be necessary to keep the Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the issuance or disposition of all the Registrable Shares until the earlier
of (i) such time as all of the Registrable Shares have been issued or disposed
of in accordance with the intended methods of issuance by the Company, or
disposition by the Holders, as set forth in the Registration Statement or (ii)
the date on which the Registration Statement ceases to be effective in
accordance with the terms of Section 1. Upon ten (10) business days' notice, the
Company shall file any supplement or post-effective amendment to the
Registration Statement with respect to such Holder's interests in or plan of
distribution of Registrable Shares that is reasonably necessary to permit the
sale of the Holder's Registrable Shares pursuant to the Registration Statement
and the Company shall file any necessary listing applications or amendments to
the existing applications to cause the shares to be then listed or quoted on the
primary exchange or quotation system on which the Common Stock is then listed or
quoted. The Company agrees to deliver copies of the prospectus as contained in
such Registration Statement promptly following effectiveness thereof to the New
York Stock Exchange (or any other applicable national securities exchange) as
contemplated by SEC Rule 157.
(c) The Company shall promptly notify each Holder of, and confirm in
writing, any request by the SEC for amendments or supplements to the
Registration Statement or the prospectus related thereto or for additional
information. In addition, the Company shall promptly respond to such SEC
requests and shall promptly notify each Holder of, and confirm in writing, the
filing of the Registration Statement, any prospectus supplement related thereto
(iv)
<PAGE>
or any post-effective amendment to the Registration Statement and the
effectiveness of any post-effective amendment.
(d) The Company shall promptly notify each Holder, at any time when a
prospectus relating to the Registration Statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. In such
event and subject to paragraph 7 of this Agreement, the Company shall promptly
prepare and furnish to each Holder a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of Registrable Shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading.
3. State Securities Laws. Subject to the conditions set forth in this
---------------------
Agreement, the Company shall, promptly upon the filing of a Registration
Statement including Registrable Shares, file such documents as may be necessary
to register or qualify the Registrable Shares under the securities or "Blue Sky"
laws of such states as any Holder may reasonably request to the extent that
registration or qualification under such laws is necessary in order that the
Registrable Shares may be legally sold in such states, and the Company shall use
reasonable efforts, in the case of a Demand Registration Statement or a
Piggyback Registration Statement, and best efforts, in the case of a Shelf
Registration Statement, to cause such filings to become effective; provided,
--------
however, that with respect to a Demand Registration Statement or a Piggyback
- -------
Registration Statement, the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any such state in which it
is not then qualified or to file any general consent to service of process in
any such state. Once effective, the Company shall use reasonable efforts, in
the case of a Demand Registration Statement or a Piggyback Registration
Statement, and best efforts, in the case of a Shelf Registration Statement, to
keep such filings effective until the earlier of (a) such time as all of the
Registrable Shares have been issued by the Company, or disposed of in accordance
with the intended methods of disposition by the Holder, as set forth in the
Registration Statement, (b) in the case of a particular state, a Holder has
notified the Company that it no longer requires effective filing in such state
in accordance with its original request for filing or (c) the date on which the
Registration Statement ceases to be effective with the SEC. The Company shall
promptly notify each Holder of, and confirm in writing, the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Shares for sale under the securities or "Blue Sky" laws of
any jurisdiction or the initiation or threat of any proceeding for such purpose.
4. Expenses. The Company shall bear all expenses incurred in connection
--------
with the registration of the Registrable Shares pursuant to Section 1(a) and
Section 1(c) of this Agreement. In addition, the Company will pay all expenses
in connection with the registration
(v)
<PAGE>
of Registrable Shares pursuant to Section 1(b) of this Agreement provided that
the registration is for One Million Dollars or more of Registerable Shares. The
Holders shall bear their ratable share of all expenses incurred by the Company
in connection with a registration in which the Holders are included pursuant to
Section 1(b) of this Agreement based on the number of Registrable Shares
included to the total number of shares of Common Stock so registered for each
Registration Statement registering less than the applicable amount specified in
the previous sentence for such Holder. Such expenses shall include, without
limitation, all printing, legal and accounting expenses incurred by the Company
and all registration and filing fees imposed by the SEC, any state securities
commission or the New York Stock Exchange or, if the Common Stock is not then
listed on the New York Stock Exchange, the principal national securities
exchange or national market system on which the Common Stock is then traded or
quoted. Holders shall be responsible for any brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable Shares
and for any legal, accounting and other expenses incurred by them in connection
with any Registration Statement.
5. Indemnification by the Company. In connection with any Demand
------------------------------
Registration Statement or any Piggyback Registration Statement, the Company
agrees to indemnify each of the Holders and their respective officers,
directors, employees, agents, representatives and affiliates, and each person or
entity, if any, that controls a Holder within the meaning of the Securities Act,
and each other person or entity, if any, subject to liability because of his,
her or its connection with a Holder, and any underwriter and any person who
controls the underwriter within the meaning of the Securities Act (an
"Indemnitee") against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including without limitation reasonable attorneys' fees,
expenses and disbursements documented in writing), joint or several, arising out
of or based upon any untrue or alleged untrue statement of material fact
contained in the Registration Statement or any prospectus contained therein, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as and
to the extent that such statement or omission arose out of or was based upon
information regarding the Indemnitee or its plan of distribution which was
furnished in writing by such Indemnitee to the Company expressly for use
therein, provided, further that the Company shall not be liable to any person
who participates as an underwriter in the offering or sale of Registrable Shares
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 or is based upon (i) 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, amendment or
supplement in reliance upon and in conformity with information furnished in
writing by such Indemnitee to the Company expressly for use in connection with
the Registration Statement or the prospectus contained therein by such
Indemnitee or (ii) such Indemnitee's failure to send or give a copy of the final
prospectus furnished to it by the Company at or prior to the time such action is
required by the Securities Act to the person claiming an untrue statement or
alleged untrue statement or omission or
(vi)
<PAGE>
alleged omission if such statement or omission was corrected in such final
prospectus. The obligations of the Company under this Section 5 shall survive
the completion of any offering of Registrable Shares pursuant to a Registration
Statement under this Agreement or otherwise and shall survive the termination of
this Agreement.
6. Covenants of Holders. Each of the Holders hereby agrees to cooperate
--------------------
with the Company and to furnish to the Company all such information in
connection with the preparation of the Registration Statement and any filings
with any state securities commissions as the Company may reasonably request. In
connection with any Demand Registration Statement or any Piggyback Registration
Statement, each Holder hereby agrees, (a) to the extent required by the
Securities Act, to deliver or cause delivery of the prospectus contained in the
Registration Statement to any purchaser of the shares covered by the
Registration Statement from the Holder, (b) to notify the Company of any sale of
Registrable Shares by such Holder and (c) to indemnify the Company, its
officers, directors, employees, agents, representatives and affiliates, and each
person, if any, who controls the Company within the meaning of the Securities
Act, and each other person, if any, subject to liability because of his
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either the Registration Statement or the prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if and to the extent
that such statement or omission arose out of or was based upon information
regarding the Holder or its plan of distribution which was furnished in writing
by such Indemnitee to the Company expressly for use therein, or (ii) the failure
by the Holder to deliver or cause to be delivered the prospectus contained in
the Registration Statement (as amended or supplemented, if applicable)
previously furnished by the Company to the Holder to any purchaser of the shares
covered by the Registration Statement from the Holder. Notwithstanding the
foregoing, (i) in no event will a Holder have any obligation under this Section
6 for amounts the Company pays in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder (which consent shall not be unreasonably withheld) and (ii) the total
amount for which a Holder shall be liable under this Section 6 shall not in any
event exceed the aggregate proceeds received by him or it from the sale of the
Holder's Registrable Shares in such registration. The obligations of the Holders
under this Section 6 shall survive the completion of any offering of Registrable
Shares pursuant to a Registration Statement under this Agreement or otherwise
and shall survive the termination of this Agreement.
7. Suspension of Registration Requirement.
--------------------------------------
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of any applicable Registration Statement or the initiation of any proceedings
for that purpose. The Company shall use reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement as soon as practicable.
(vii)
<PAGE>
(b) Notwithstanding anything to the contrary set forth in this Agreement,
the Company's obligation under this Agreement to use reasonable efforts to cause
the Registration Statement and any filings with any state securities commission
to be made or to become effective or to amend or supplement the Registration
Statement shall be suspended in the event and during such period as the Chief
Executive Officer of the Company or its Board of Directors determines in good
faith that pending negotiations relating to, or consummation of, a transaction
or the occurrence of an event that would require additional disclosure of
material information by the Company in the Registration Statement or such filing
(such circumstances being hereinafter referred to as a "Suspension Event") that
would make it impractical or unadvisable to cause the Registration Statement or
such filings to be made or to become effective or to amend or supplement the
Registration Statement; provided, however, that such suspension shall continue
only as long as such event or its effect is continuing and has not otherwise
been publicly disclosed and in no event will that suspension exceed sixty (60)
days. The Company agrees not to exercise the rights set forth in this Section
7(b) more than twice in any twelve month period. The Company shall notify the
Holder of the existence of any Suspension Event.
(c) Each holder of Registrable Shares whose Registrable Shares are covered
by a Demand Registration Statement or a Piggyback Registration Statement filed
pursuant to Section 1 hereof agrees, if requested by the managing underwriter or
underwriters in an underwritten offering (an "Underwritten Offering"), not to
effect any public sale or distribution of any of the securities of the Company
of any class included in such Underwritten Offering, including a sale pursuant
to Rule 144 or Rule 144A under the Securities Act (except as part of such
Underwritten Offering), during the 15-day period prior to, and during the 90-day
period (or such longer period as may be required by the managing underwriter or
underwriters) beginning on, the date of pricing of each Underwritten Offering
(the "Underwritten Offering Period"), to the extent timely notified in writing
by the managing underwriters. The Company agrees that the rights set forth in
this Section 7(c) may not be exercised more than once in any six month period or
within six months of the Company exercising its rights under Section (7)(b)
above. Furthermore, notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use reasonable
efforts to cause a Demand Registration Statement or a Piggyback Registration
Statement and any filings with any state securities commission in connection
therewith to be made or to become effective or to amend or supplement such
Registration Statement shall be suspended in the event and during such period as
the Company is proceeding with an Underwritten Offering if the Company is
advised by the underwriters that the sale of Registrable Shares under such
Registration Statement would have a material adverse effect on the Underwritten
Offering.
8. Black-Out Period. Following the effectiveness of any Registration
----------------
Statement and the filings with any state securities commissions in connection
therewith, the Holders agree that they will not effect any sales of the
Registrable Shares pursuant to such Registration Statement or any such filings
at any time after they have received notice from the Company to suspend sales
(i) as a result of the occurrence or existence of any Suspension Event, (ii)
during the Underwritten Offering Period of any Underwritten Offering, or (iii)
so that the Company
(viii)
<PAGE>
may promptly correct or update the Registration Statement or such filing
pursuant to Section 2(c) or 2(d). The Holder may recommence effecting sales of
the Registrable Shares pursuant to the Registration Statement or such filings
following further notice to such effect from the Company, which notice shall be
given by the Company not later than five (5) business days after the conclusion
of any such Suspension Event or Underwritten Offering Period or the correction
of the Registration Statement, as applicable.
9. Additional Shares. The Company, at its option, may register, under
-----------------
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of Common Stock
(including, without limitation, shares of Common Stock which may be issued to
any of the Holders of Units in the Operating Partnership) or any shares of
Common Stock owned by any other shareholder or shareholders of the Company.
10. Contribution. If the indemnification provided for in Sections 5 and 6
------------
is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
- -------- -------
party to contribute under this Section 10 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 5 or 6 hereof had been available
under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 10 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 10, no Holder shall be required to
contribute any amount in excess of the amount by which the gross proceeds from
the sale of the shares of Common Stock of such Holder exceeds the amount of any
damages that such Holder otherwise has been required to pay by reason of such
untrue or alleged untrue statement or omissions.
(ix)
<PAGE>
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.
11. No Other Obligation to Register. Except as otherwise expressly
-------------------------------
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
12. Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented without the prior written consent of the
Company and Holders holding in excess of 75% of the Registrable Shares (or
Partnership Units redeemable or exchangeable for Registrable Shares); and any
amendment, modification or supplement consented to by the Company and the
Holders of a majority of such registrable Shares (or of such Partnership Units)
shall bind all such Holders.
13. Notices. Except as set forth below, all notices and other
-------
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company at the following
address and to the Holder at the address set forth on his or her signature page
to this Agreement (or at such other address for any party as shall be specified
by like notice, provided that notices of a change of address shall be effective
only upon receipt thereof), and further provided that in case of directions to
amend the Registration Statement pursuant to Section 2(b) or Section 6(b), a
Holder must confirm such notice in writing by overnight express delivery with
confirmation of receipt:
If to the Company: Bradley Real Estate, Inc.
40 Skokie Boulevard
Northbrook, IL 60062
Attn: Thomas P. D'Arcy
President
Telephone: (847) 272-9800
Telecopy: (847) 480-1893
With a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: William B. King, P.C.
Telephone: (617) 570-1000
Telecopy: (617) 523-1231
(x)
<PAGE>
In addition to the manner of notice permitted above, notices given pursuant to
Sections 1, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
14. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the successors and assigns of the Company. This
Agreement may only be assigned to a transferee of all or a portion of the
Holder's Units in compliance with the Partnership Agreement or a transferee of
all or a portion of the Holder's Registrable Securities which constitute
"restricted securities" in the hands of such transferee, as defined in Rule 144
under the Securities Act. Any attempted assignment other than to a transferee of
all or a portion of a Holder's Units in compliance with the Partnership
Agreement or a transferee of all or a portion of the Holder's Registrable
Securities which constitute "restricted securities" in the hands of such
transferee, as defined in Rule 144 under the Securities Act, will be void and of
no effect and shall terminate all obligations of the Company hereunder with
respect to such Holder.
15. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Maryland applicable to contracts made
and to be performed wholly within said State.
17. Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
18. Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[Remainder of Page Intentionally Left Blank]
(xi)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BRADLEY REAL ESTATE, INC.
By: /s/ Thomas P. D'Arcy
----------------------------------
Name: Thomas P. D'Arcy
Title: President
(xii)
<PAGE>
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
COUNTY LINE 31 COMPANY, L.P.
By: /s/ John A. Wallace
------------------------------------
Name: John A. Wallace
Title: General Partner and Member
of Executive Committee
Address for Notice:
c/o F.C. Tucker Company
2500 One American Square
Indianapolis, Indiana 46282
(xiii)
<PAGE>
SCHEDULE A
----------
CONSTITUENT PARTNERS AND PERMITTED ASSIGNEES
--------------------------------------------
OF COUNTY LINE 31 COMPANY, L.P.
-------------------------------
Percentage of
Name and Address Interest and Units
- ----------------------------------------------------------------------
Robert W. Wilds (or Charitable Remainder Trust) 50.0%
8250 Woodfield Crossing Blvd.
Suite 100
Indianapolis, IN 46240-4348
- ----------------------------------------------------------------------
Robert E. Houk, Trustee of Revocable Grantor 5.5%
Trust
6111 Spring Mill Road
Indianapolis, IN 46228
- ----------------------------------------------------------------------
John A. Wallace 5.5%
125 Prestwick Circle
Vero Beach, FL 32967
- ----------------------------------------------------------------------
J. Kurt Mahrdt, Jr. 3.0%
714 North Capitol
Indianapolis, IN 46204
- ----------------------------------------------------------------------
George C. Charbonneau 3.0%
(or Linda A. Charbonneau, his wife)
2500 One American Square
Box 82055
Indianapolis, IN 46282-0002
- ----------------------------------------------------------------------
James T. Schrage 3.0%
1299 West 86th Street
Indianapolis, IN 46260
- ----------------------------------------------------------------------
Gary B. Warstler 3.0%
9279 N. Meridian Street
Indianapolis, IN 46260
- ----------------------------------------------------------------------
John R. Jewett 3.0%
2500 One American Square
Box 82055
Indianapolis, IN 46282-0002
- ----------------------------------------------------------------------
(xv)
<PAGE>
- ----------------------------------------------------------------------
Maurice C. Martindale 3.0%
1243 Windswept Avenue
Naples, FL 33942
- ----------------------------------------------------------------------
Hans T. French 3.0%
6279 Tri-Ridge Blvd.
Loveland, OH 45140
- ----------------------------------------------------------------------
Roy G. Altman 2.5%
9279 N. Meridian St
Suite 100
Indianapolis, IN 46260
- ----------------------------------------------------------------------
Don E. Ellis 2.0%
2406 Anthony Avenue
Clearwater, FL 34619
- ----------------------------------------------------------------------
Fred C. Tucker III, Trustee 5.5%
U/W of Fred C. Tucker, Jr.
2500 One American Square
Box 82055
Indianapolis, IN 46282-0002
- ----------------------------------------------------------------------
Polly Boleman Jameson, Co-Trustee 5.5%
of Trust U/W of Edward J. Boleman
1608 Northwood Drive
Indianapolis, IN 46240
- ----------------------------------------------------------------------
David J. Backer, Trustee 2.5%
Herbert J. Backer Trust ----
8710 N. Meridian Street
Indianapolis, IN 46260
- ----------------------------------------------------------------------
TOTAL 100%
- ----------------------------------------------------------------------
(xvi)
