REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.34
THIS REGISTRATION RIGHTS AGREEMENT, dated as of November 1, 2006, is entered into by and among
AMB Property Corporation, a Maryland corporation (the “Company”), AMB Property II, L.P., a Delaware
limited partnership (the “Partnership”), X.X. Xxxxx Development Corp., a New York corporation (the
“XX Xxxxx”) and JAGI, Inc., a Delaware corporation (“JAGI”) (XX Xxxxx and JAGI are hereinafter each
referred to as a “Unit Holder” and collectively referred to as the “Unit Holders”).
RECITALS
WHEREAS, the Company, the Partnership and the Unit Holders as the parties which hold ownership
interests in certain industrial/warehouse/office properties (collectively, the “Property”) will
engage in certain transactions whereby the Unit Holders will contribute to the Partnership its
interests in the Property;
WHEREAS, the Unit Holders will receive cash and units of limited partnership interests
(“Units”) in the Partnership in exchange for its interests in the Property;
WHEREAS, pursuant to the Partnership Agreement (as defined below), Units owned by the Unit
Holders will be redeemable for cash or exchangeable for shares of the Company’s common stock, par
value $.01 per share (the “Common Stock”), upon the terms and subject to the conditions contained
therein; and
WHEREAS, the Unit Holders are willing to sell/contribute its interests in the Property in
consideration of receiving certain registration rights provided for in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained,
and for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
SECTION 1.1 Definitions. In addition to the definitions set forth above, the
following terms, as used herein, have the following meanings:
“Affiliate” of any Person means any other Person directly or indirectly controlling or
controlled by or under common control with such Person. For the purposes of this definition,
“control” when used with respect to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.
“Agreement” means this Registration Rights Agreement, as it may be amended, supplemented or
restated from time to time.
“Articles of Incorporation” means the Articles of Incorporation of the Company as filed with
the Secretary of State of the State of Maryland on November 24, 1997, as the same may be amended,
modified or restated from time to time.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks
in New York, New York or San Francisco, California are authorized by law to close.
“Code” means the Internal Revenue Code of 1986, as amended from time to time or any successor
statute thereto, as interpreted by the applicable regulations thereunder.
“Commission” means the Securities and Exchange Commission.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchangeable Units” means Units which may be redeemable for cash or exchangeable for Common
Stock pursuant to Section 23.4 of the Partnership Agreement (without regard to any limitations on
the exercise of such exchange right as a result of the Ownership Limit Provisions, as defined
below).
“Holder” means any Unit Holder who is the record or beneficial owner of any Registrable
Security or any assignee or transferee of such Registrable Security (including assignments or
transfers of Registrable Securities to such assignees or transferees as a result of the foreclosure
on any loans secured by such Registrable Securities) unless such Registrable Security is acquired
in a public distribution pursuant to a registration statement under the Securities Act or pursuant
to transactions exempt from registration under the Securities Act, in each such case where
securities sold in such action may be publicly resold without subsequent registration under the
Securities Act.
“Incapacitated” shall have the meaning set forth in the Partnership Agreement.
“Ownership Limit Provisions” mean the various provisions of the Articles of Incorporation set
forth in Article IV thereof restricting the ownership of Common Stock by certain Persons to
specified percentages of the outstanding Common Stock.
“Partnership Agreement” means the Thirteenth Amended And Restated Agreement of Limited
Partnership of the Partnership, as such agreement may be amended, modified or restated from time to
time.
“Person” means an individual or a corporation, partnership, limited liability company,
association, trust, or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“Registrable Securities” means shares of Common Stock of the Company at any time owned, either
of record or beneficially, by any Holder issued or issuable upon exchange of Exchangeable Units
until (i) a registration statement covering such securities has been declared effective by the
Commission and such shares have been sold or transferred pursuant to such effective registration
statement, (ii) such shares are sold under circumstances in which all of the
applicable conditions of Rule 144 are met or under which such shares may be sold pursuant to
Rule 144(k) under the Securities Act or (iii) such shares have been otherwise transferred in a
transaction that would constitute a sale thereof under the Securities Act, the Company has
delivered a new certificate or other evidence of ownership for such shares not bearing the
Securities Act restricted stock legend and such shares may be resold without subsequent
registration under the Securities Act. If as a result of any reclassification, stock dividends or
stock splits or in connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or other transaction or event, any capital stock, evidence of indebtedness,
warrants, options, rights or other securities of the Company (collectively “Other Securities”) are
issued or transferred to a Holder as a result of such Holder holding Registrable Securities held by
the Holder, references herein to Registrable Securities shall be deemed to include such Other
Securities.
“Rule 144” means Rule 144 under the Securities Act, as amended from time to time (or any
successor statute).
“Securities Act” means the Securities Act of 1933, as amended.
“Selling Holder” means a Holder who is selling Registrable Securities pursuant to a
registration statement under the Securities Act pursuant to this Agreement.
ARTICLE II
REGISTRATION RIGHTS
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration. The Company shall prepare and file, and use its
reasonable efforts to cause to become effective, (i) on or as soon as practicable after the first
anniversary of the date the Units are issued (the “Issue Date”) a “shelf” registration statement
with respect to shares of Common Stock issuable upon the exchange of Exchangeable Units covering
the issuance by the Company and the resale thereof by the Holders on an appropriate form for an
offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the
“Initial Shelf Registration Statement”) and (ii) on or prior to the date (if any) that such Initial
Shelf Registration Statement or any Subsequent Registration Statement (as defined below) may no
longer be used for offers or sales of the Registrable Securities, a new “shelf” registration
statement with respect to the shares of Common Stock issuable upon the exchange of then outstanding
Exchangeable Units covering the issuance by the Company and the resale thereof by the Holders on an
appropriate form for an offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act (each, a “Subsequent Shelf Registration,” and collectively with the Initial Shelf
Registration Statement, the “Shelf Registration Statement”), and shall use its reasonable best
efforts to keep such Shelf Registration Statement continuously effective for an aggregate period
ending when all Registrable Securities covered by the Initial Shelf Registration Statement have
been issued and resold.
SECTION 2.2 Registration Procedures; Filings; Information. In connection with any
Shelf Registration Statement under Section 2.1 hereof, the Company will use its best efforts to
effect the registration and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof as quickly as practicable, and in connection therewith:
(a) The Company will as expeditiously as possible prepare and file with the Commission a
registration statement on any form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for the issuance and resale of the
Registrable Securities to be registered thereunder in accordance with the intended methods of
distribution thereof, and use its reasonable best efforts to cause such filed registration
statement to become and remain effective as provided in Section 2.1 hereof.
(b) The Company will, if requested, prior to filing a registration statement or prospectus or
any amendment or supplement thereto, furnish to each Selling Holder of the Registrable Securities
covered by such registration statement or prospectus copies of such registration statement or
prospectus or any amendment or supplement thereto as proposed to be filed, and thereafter furnish
to such Selling Holder one conformed copy of such registration statement, each amendment thereof
and supplement thereto (in each case including all exhibits thereto and documents incorporated by
reference therein; provided, that each such exhibit need only be provided once), and such number of
copies of the prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such Selling Holder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such Selling Holder.
(c) After the filing of the registration statement, the Company will promptly notify each
Selling Holder of Registrable Securities covered by such registration statement of any stop order
issued or threatened by the Commission and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered.
(d) The Company will use its reasonable best efforts to (i) register or qualify the
Registrable Securities under such other securities or blue sky laws of such jurisdictions in the
United States (where an exemption is not available) as any Selling Holder reasonably (in light of
such Selling Holder’s intended plan of distribution) requests and (ii) cause such Registrable
Securities to be registered with or approved by such other governmental agencies or authorities as
may be necessary by virtue of the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to enable such Selling Holder to
consummate the disposition of the Registrable Securities owned by such Selling Holder; provided
that the Company will not be required to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself
to taxation in any such jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(e) The Company will promptly notify each Selling Holder of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under the Securities Act,
of the occurrence of an event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances then existing, not misleading and promptly make
available to each Selling Holder a reasonable number of copies of any such supplement or amendment.
The Company will prepare and file with the Commission such amendments (including post-effective
amendments) to the Shelf Registration Statement and such supplements to the prospectus as may be
necessary to keep such Shelf Registration Statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by such Shelf
Registration Statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition.
(f) The Company will make available for inspection by any Selling Holder of such Registrable
Securities and any attorney, accountant or other professional retained by any such Selling Holder
(collectively, the “Inspectors”), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the “Records”) as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the Company’s officers,
directors and employees to supply all information reasonably requested by any Inspectors in
connection with such registration statement. Records which the Company determines, in good faith,
to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by
the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such registration statement or (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Selling
Holder of such Registrable Securities agrees that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates or otherwise disclosed by it unless
and until such is made generally available to the public. Each Selling Holder of such Registrable
Securities further agrees that it will, upon learning that disclosure of such Records is sought in
a court of competent jurisdiction, give notice to the Company and allow the Company, at its
expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(g) The Company will otherwise use its reasonable best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its securityholders, as soon as
reasonably practicable, an earnings statement covering a period of twelve (12) months, beginning
within three (3) months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder (or any successor rule or regulation hereafter adopted by the
Commission).
(h) The Company will use its reasonable best efforts to cause all such Registrable Securities
to be listed on each securities exchange on which similar securities issued by the Company are then
listed.
(i) The Company will not be required to enter in an underwriting or other similar agreement
with respect to the disposition of Registrable Securities.
The Company may require, as a condition precedent to the obligations of the Company under the
Agreement, each Selling Holder of Registrable Securities to promptly furnish in writing to the Company such information regarding such Selling Holder, the Registrable
Securities held by it and the intended methods of distribution of the Registrable Securities as the
Company may from time to time reasonably request and such other information as may be legally
required in connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from the Company of, or such
Selling Holder obtains knowledge of, the happening of any event of the kind described in Section
2.2(e) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement and prospectus covering such Registrable Securities until
such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated
by Section 2.2(e) hereof, and, if so directed by the Company, such Selling Holder will deliver to
the Company all copies, other than permanent file copies then in such Selling Holder’s possession,
of the most recent prospectus and each amendment thereof and supplement thereto covering such
Registrable Securities at the time of receipt of such notice. Each Selling Holder of Registrable
Securities agrees that it will immediately notify the Company at any time when a prospectus
relating to the registration of such Registrable Securities is required to be delivered under the
Securities Act of the happening of an event known to such Selling Holder as a result of which
information previously furnished by such Selling Holder to the Company in writing for inclusion in
such prospectus contains 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 in which they were made, not misleading.
SECTION 2.3 Registration Expenses. In connection with any registration statement
required to be filed hereunder, the Company shall pay the following registration expenses incurred
in connection with the registration hereunder (the “Registration Expenses”): (i) all registration
and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) printing expenses, (iv) internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing legal or accounting
duties), (v) the fees and expenses incurred in connection with the listing of the Registrable
Securities on each securities exchange on which similar securities issued by the Company are then
listed, (vi) reasonable fees and disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by the Company and, (vii) the
reasonable fees and expenses of any special experts retained by the Company in connection with such
registration. The Company shall have no obligation to pay any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities, or any out-of-pocket expenses of
the Holders (or the agents who manage their accounts) or any transfer taxes relating to the
registration or sale of the Registrable Securities.
SECTION 2.4 Indemnification by the Company. The Company agrees to indemnify and hold
harmless each Selling Holder, its officers, directors and agents, and each Person, if any, who
controls such Selling Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by 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 in which they were made, not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the Company by such
Selling Holder or on such Selling Holder’s behalf expressly for inclusion therein.
SECTION 2.5 Indemnification by Holders of Registrable Securities. Each Selling Holder
agrees, severally but not jointly, to indemnify and hold harmless the Company, its officers,
directors and agents and each Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Selling Holder, but only with respect to information
relating to such Selling Holder furnished in writing by such Selling Holder or on such Selling
Holder’s behalf expressly for use in any registration statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto, or any preliminary prospectus. In
case any action or proceeding shall be brought against the Company or its officers, directors or
agents or any such controlling person, in respect of which indemnity may be sought against such
Selling Holder, such Selling Holder shall have the rights and duties given to the Company, and the
Company or its officers, directors or agents or such controlling person shall have the rights and
duties given to such Selling Holder, by Section 2.4 hereof. The liability of the Selling Holder
pursuant to this Section 2.5 may, in no event, exceed the total price of the sales of Registrable
Securities giving rise to the indemnification obligation of such Selling Holder.
SECTION 2.6 Conduct of Indemnification Proceedings. In case any proceeding (including
any governmental investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Sections 2.4 or 2.5 hereof, such person (an “Indemnified
Party”) shall promptly notify the person against whom such indemnity may be sought (an
“Indemnifying Party”) in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified Party, and shall
assume the payment of all fees and expenses. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall
have mutually agreed to the retention of such counsel, (ii) the Indemnifying Party has not employed
counsel to assume the defense of such proceeding within a reasonable time after receiving notice of
the commencement of the proceeding, or (iii) the named parties to any such proceeding (including
any impleaded parties) include both the Indemnified Party and the Indemnifying Party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the Indemnifying Party shall
not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Indemnified Parties, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by (i) in the case of Persons
indemnified pursuant to Section 2.4 hereof, by the gelling Holders which owned a majority of the
Registrable Securities sold under the applicable registration statement and (ii) in the case of
Persons indemnified pursuant to Section 2.5 hereof, the Company. The Indemnifying Party shall not
be liable for any settlement of any proceeding effected without its written consent,
but if settled with such consent, or if there be a final judgment for the plaintiff, the
Indemnifying Party shall indemnify and hold harmless such Indemnified Parties from and against any
loss or liability (to the extent stated above) by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an
Indemnifying Party to reimburse the Indemnified Party for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than thirty (30) Business Days after receipt by such Indemnifying
Party of the aforesaid request and (ii) such Indemnifying Party shall not have reimbursed the
Indemnified Party in accordance with such request prior to the date of such settlement. No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from all liability arising
out of such proceeding.
SECTION 2.7 Contribution. If the indemnification provided for in Sections 2.4 or 2.5
hereof is unavailable to an Indemnified Party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each such 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 or liabilities as between the Company
on the one hand and each Selling Holder on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each Selling Holder in connection with such
statements or omissions which resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative fault of the Company on the one hand and
of each Selling Holder on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or such Selling
Holder, and the Company’s and the Selling Holder’s relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and equitable if
contribution pursuant to this Section 2.7 were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in Sections 2.4 and 2.5 hereof shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 2.7, no Selling Holder shall
be required to contribute any amount in excess of the amount by which the total price at which the
securities of such Selling Holder to the public exceeds the amount of any damages which such
Selling Holder has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Selling Holder’s
obligations to contribute pursuant to this Section 2.7 are several in the proportion that the proceeds of the offering received by such Selling Holder bears to the
total proceeds of the offering received by all the Selling Holders and not joint.
SECTION 2.8 Rule 144. The Company covenants that it will file any reports required to
be filed by it under the Securities Act and the Exchange Act and that it will take such further
action as any Holder may reasonably request, all to the extent required from time to time to enable
Holders to sell Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, the Company will deliver to
such Holder a written statement as to whether it has complied with such requirements.
SECTION 2.9 Holdback Agreements.
(a) If the Company determines in its good faith judgment that the filing of the Shelf
Registration Statement under Section 2.1 hereof or the use of any related prospectus would require
the disclosure of non-public material information that the Company has a bona fide business purpose
for preserving as confidential or the disclosure of which would impede the Company’s ability to
consummate a material transaction, and that the Company is not otherwise required by applicable
securities laws or regulations to disclose, upon written notice of such determination by the
Company, the rights of the Holders to offer, sell or distribute any Registrable Securities pursuant
to the Shelf Registration Statement or to require the Company to take action with respect to the
registration or sale of any Registrable Securities pursuant to the Shelf Registration Statement
shall be suspended until the earlier of (i) the date upon which the Company notifies the Holders in
writing that suspension of such rights for the grounds set forth in this Section 2.10(b) is no
longer necessary and (ii) 90 calendar days (“Delay Period”). The Company agrees to give such
notice as promptly as practicable following the date that such suspension of rights is no longer
necessary. The Company shall not be entitled to exercise a Delay Period for more than 90 calendar
days in the aggregate in any 12-month period.
(b) If all reports required to be filed by the Company pursuant to the Exchange Act have not
been filed by the required date after giving effect to any extension, or if the consummation of any
business combination by the Company has occurred or is probable for purposes of Rule 3-05 or
Article 11 of Regulation S-X under the Exchange Act, upon written notice thereof by the Company to
the Holders, the rights of the Holders to offer, sell or distribute any Registrable Securities
pursuant to the Shelf Registration Statement or to require the Company to take action with respect
to the registration or sale of any Registrable Securities pursuant to the Shelf Registration
Statement shall be suspended until the date on which the Company has filed such reports or obtained
and filed the financial information required by Rule 3-05 or Article 11 of Regulation S-X to be
included or incorporated by reference, as applicable, in the Shelf Registration Statement, and the
Company shall notify the Holders as promptly as practicable when such suspension is no longer
required.
ARTICLE III
TRANSFER RESTRICTIONS
TRANSFER RESTRICTIONS
SECTION 3.1 Transfer of Common Stock. Each Unit Holder agrees that in no event will
it transfer, sell, assign, pledge, hypothecate or otherwise dispose of (each, a “Transfer”) any Registrable Securities other than pursuant to an effective registration statement or, if
requested by the Company, at the expense of such Unit Holder or its designee, such Unit Holder
shall furnish to the Company an opinion of counsel and such other information, reasonably
satisfactory to the Company to the effect that such Transfer may be consummated without
registration under the Securities Act.
SECTION 3.2 Legend.
(a) Unless Registrable Securities are issued pursuant to an effective registration statement,
all Registrable Securities shall bear legends in substantially the following form:
| THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND, THEREFORE, MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR (B) IF THE CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FROM THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND STATE SECURITIES LAWS. |
(b) Any certificates for Registrable Securities shall also bear any other legend required by
any applicable state securities law and a legend regarding the ownership limitations set forth in
the Company’s Articles of Incorporation, as amended.
(c) In addition, the Company shall make a notation regarding the applicable restrictions on
transfer of Registrable Securities in its stock records, and any such Registrable Securities shall
be transferred on the records of the Company only if transferred or sold in compliance with the
provisions of this Agreement.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
SECTION 4.1 Remedies. In addition to being entitled to exercise all rights provided
herein and granted by law, including recovery of damages, the Holders shall be entitled to specific
performance of the rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
SECTION 4.2 Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given without the prior written consent of the
Company and the Holders or any such Holder’s representative if any such Holder is Incapacitated.
No failure or delay by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy
consequent upon any breach thereof shall constitute a waiver of any such breach or any other
covenant, duty, agreement or condition.
SECTION 4.3 Notices. All notices and other communications in connection with this
Agreement shall be made in writing by hand delivery, registered first-class mail, telex,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to any Unit Holder, initially to c/o X.X. Xxxxx Development Corp., 000 Xxxx Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx 00000 (Attention: General Counsel, or to such other address and
to such other Persons as the Unit Holders may hereafter specify in writing; and
(2) if to the Company, initially at Xxxx 0, Xxx 0, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (Attention:
General Counsel), or to such other address as the Company may hereafter specify in writing.
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; when received if deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and
on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery.
SECTION 4.4 Successors and Assigns. Except as expressly provided in this Agreement,
the rights and obligations of the Holders under this Agreement shall not be assignable by any
Holder to any Person that is not a Holder. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns.
SECTION 4.5 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. Each party shall become bound by this Agreement immediately upon affixing its signature
hereto. Counterparts hereof containing facsimile copy signatures shall have the same force and
effect as original signed counterparts.
SECTION 4.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to the choice of law
provisions thereof.
SECTION 4.7 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
SECTION 4.8 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a 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 the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
SECTION 4.9 Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
SECTION 4.10 No Third Party Beneficiaries. Nothing express or implied herein is
intended or shall be construed to confer upon any person or entity, other than the parties hereto
and their respective successors and assigns, any rights, remedies or other benefits under or by
reason of this Agreement.
SECTION 4.11 Survival. The indemnification provided for under this Agreement will (i)
remain in full force and effect regardless of any investigation made by or on behalf of the
indemnified party or any officer, director or controlling Person of such indemnified party, (ii)
survive the transfer of securities and (iii) survive the termination of this Agreement.
SECTION 4.12 Authority. Each party represents to the other that this Agreement has
been duly authorized, executed and delivered by such party, is, assuming the due authorization,
execution and delivery of this Agreement by the other parties hereto, a legal, valid and binding
obligation of such party enforceable against such party in accordance with such party’s respective
terms except as such enforceability may be subject to the effects of bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting the rights of creditors and of
general principles of equity, and does not violate any provision of such parties’ organizational
documents or any material agreement or judicial order to which such party is subject.
INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| AMB PROPERTY CORPORATION, a Maryland corporation |
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| By: | /s/Xxxx X. Xxxxx | |||
| Its: | Senior Vice President | |||
| AMB PROPERTY II, L.P., a Delaware limited partnership |
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| By | Texas AMB I, LLC, a Delaware limited liability company |
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| By: | AMB Property Holding Corporation, a Maryland corporation its managing member |
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| By: | /s/Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Its: | Senior Vice President | |||
| X.X. XXXXX DEVELOPMENT CORP., a New York corporation |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | ||||
| President | ||||
| JAGI, INC., a Delaware corporation |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | ||||
| President | ||||
