EXHIBIT 4.12
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of August ___,
2001, is entered into by and between Health Care Property Investors, Inc., a
Maryland corporation (the "Company"), and the parties identified on the
signature page hereof as a "Unitholder" (collectively, the "Unitholders").
RECITALS
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WHEREAS, the Company, the Unitholders and HCPI/Utah II, LLC, a
Delaware limited liability company (the "Operating LLC") have entered into that
certain Contribution Agreement dated as of the date hereof (the "Contribution
Agreement") providing, among other things, for the contribution of certain
property by the Unitholders to the Operating LLC and the contribution of cash by
the Company to the Operating LLC; and
WHEREAS, it is a condition to the closing of the transactions
contemplated by the Contribution Agreement that the parties hereto enter into
this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. The following capitalized terms, as
used in this Agreement, have the following meanings:
"Agreement" means this Registration Rights Agreement, as it
may be amended, supplemented 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, Los Angeles,
California or Salt Lake City, Utah are authorized by law to close.
"Closing Price" means (i) the closing price of a share of
Common Stock on the principal exchange on which shares of Common Stock are then
trading, if any, or (ii) if the Common Stock is not traded on an exchange but is
quoted on NASDAQ or a successor quotation system, (1) the last sales price (if
the Common Stock is then listed as a National Market Issue under the NASD
National Market System) or (2) the mean between the closing representative bid
and asked prices (in all other cases) for the Common Stock as reported by NASDAQ
or such successor quotation system or (iii) if the Common Stock is not publicly
traded on an exchange and not quoted on NASDAQ or a successor quotation system,
the mean between the closing bid and asked prices for the Common Stock.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $1.00 per
share, of the Company.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Contribution Agreement" has the meaning set forth in the
recitals to this Agreement.
"Demand Registration" has the meaning set forth in Section
3.1(a) hereof.
"Demand Registration Statement" has the meaning set forth in
Section 3.1(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchangeable LLC Units" means LLC Units which may be
exchanged for Common Stock pursuant to the LLC Agreement.
"Filing Date" has the meaning set forth in Section 2.1 hereof.
"Full Conversion Date" has the meaning set forth in Section
2.1 hereof.
"Holder" means any Person (including a Unitholder) 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 sale pursuant to a registration statement
under the Securities Act or pursuant to a transaction exempt from registration
under the Securities Act, in each such case where the security sold in such
transaction may be resold without subsequent registration under the Securities
Act.
"Inspectors" has the meaning set forth in Section 3.1(h).
"Issuance Registration Statement" has the meaning set forth in
Section 2.1.
"LLC Agreement" means the Amended and Restated Limited
Liability Company Agreement of the Operating LLC dated as of the date of this
Agreement, as the same may be amended, modified or restated from time to time.
"LLC Units" has the meaning set forth in the LLC Agreement.
"Operating LLC" has the meaning set forth in the recitals to
this Agreement.
"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.
"Piggyback Registration Statement" means any registration
statement of the Company in which Registrable Securities are included pursuant
to Section 3.1 hereof.
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"Records" has the meaning set forth in Section 3.1(h).
"Registration Expenses" has the meaning set forth in Section
3.4.
"Registrable Securities" means shares of Common Stock of the
Company issued upon exchange of Exchangeable LLC Units pursuant to the terms of
the LLC Agreement at any time owned, either of record or beneficially, by any
Holder unless and until (i) a registration statement covering such shares has
been declared effective by the Commission and the shares have been issued by the
Company to Holder upon exchange of Exchangeable LLC Units pursuant to the
effective registration statement or have been sold or transferred by Holder to
another Person pursuant to the effective registration statement, (ii) such
shares are sold pursuant to the provisions of Rule 144 under the Securities Act
(or any similar provisions then in force) ("Rule 144"), (iii) such shares are
held by a Holder who is not an affiliate of the Company within the meaning of
Rule 144 (a "Rule 144 Affiliate") and may be sold pursuant to Rule 144(k) under
the Securities Act, (iv) such shares are held by a Holder who is a Rule 144
Affiliate and all such shares may be sold pursuant to Rule 144 within a period
of three months in accordance with the volume limitations set forth in Rule
144(e)(1), or (iv) such shares have been otherwise transferred in a transaction
that would constitute a sale under the Securities Act and such shares may be
resold without subsequent registration under the Securities Act.
"Reinstatement Period" has the meaning set forth in Section
3.1.
"Resale Prospectus" has the meaning set forth in Section 3.5.
"Resale Registration Statement" has the meaning set forth in
Section 3.5.
"S-3 Expiration Date" means the date on which Form S-3 (or a
similar successor form of registration statement) is not available to the
Company for the registration of Registrable Securities pursuant to the
Securities Act.
"Secondary Offering Securities Holders" has the meaning set
forth in Section 3.1(b).
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a Demand Registration Statement or a Piggyback
Registration Statement.
"Supplemental Rights Period" has the meaning set forth in
Section 3.1.
"Unitholders" has the meaning set forth in the preamble to
this Agreement.
ARTICLE II.
REGISTRATION
Section 2.1 Registration Statement Covering Issuance of
Common Stock. Subject to the provisions of Article III hereof, the Company will
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file with the Commission a registration statement on Form S-3 (the "Issuance
Registration Statement") under Rule 415
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under the Securities Act covering the issuance to Holders of shares of Common
Stock in exchange for Exchangeable LLC Units, such filing to be made within the
two (2) week period following the date (the "Filing Date") which is the later of
(i) a date which is fourteen (14) days prior to the first date on which the
Exchangeable LLC Units issued pursuant to the Contribution Agreement may be
exchanged for shares of Common Stock pursuant to the provisions of the LLC
Agreement or (ii) such other date as may be required by the Commission pursuant
to its interpretation of applicable federal securities laws and the rules and
regulations promulgated thereunder. The Company may, in its sole discretion,
also include in such Issuance Registration Statement any shares of Common Stock
to be issued in exchange for securities of HCPI/Utah, LLC, a Delaware limited
liability company. The Company shall use its reasonable efforts to cause the
Issuance Registration Statement filed with the Commission to be declared
effective by the Commission as soon as practicable following the filing, and
within sixty (60) days after filing. In the event the Company is unable to cause
the Issuance Registration Statement to be declared effective by the Commission,
then the rights of the Holders set forth in Sections 3.1 and 3.2 hereof shall
apply to Common Stock received by Holders upon exchange of the Exchangeable LLC
Units for shares of Common Stock. Notwithstanding the availability of rights
under Section 3.1 hereof, the Company shall continue to use its reasonable
efforts to cause the Issuance Registration Statement to be declared effective by
the Commission and if it shall be declared effective by the Commission, the
obligations of the Company under Section 3.1 hereof shall cease. The Company
agrees to use its reasonable efforts to keep the Issuance Registration Statement
continuously effective (a) until the earlier of (i) the S-3 Expiration Date, or
(ii) the first date (the "Full Conversion Date") on which no Exchangeable LLC
Units (other than those held by the Company) remain outstanding, and (b) during
any Reinstatement Period.
ARTICLE III.
REGISTRATION RIGHTS
Section 3.1 Registration Rights if Form S-3 is Not Available.
The following provisions shall apply with respect to Registrable Securities
during the period, if any, beginning on the S-3 Expiration Date (or, if the S-3
Expiration Date shall occur before the 30th day prior to the first date on which
the Exchangeable LLC Units issued pursuant to the Contribution Agreement may be
exchanged for shares of Common Stock, beginning on such 30th prior day) and
ending on the date when the Company would no longer be obligated to maintain the
applicable registration statement in effect pursuant to the terms of Section 2.1
if the S-3 Expiration Date had not occurred (the "Supplemental Rights Period");
provided, however, that the Supplemental Rights Period shall not include any
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period following the S-3 Expiration Date and prior to the Full Conversion Date
if during that period (the "Reinstatement Period") the Company shall again be
entitled to use Form S-3 (or a similar successor form of registration statement)
for registration of the Registrable Securities. During the Supplemental Rights
Period, the Holders shall have the following rights:
(a) Demand Rights. Holders may make a written demand
for registration under the Securities Act of all or part of the Registrable
Securities (a "Demand Registration"); provided, however, that (i) the Company
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shall not be obligated to effect more than one Demand Registration for Holders
in any twelve month period, and (ii) the number of Registrable Securities
proposed to be sold by the Holders making such written demand either (x) shall
be all the Registrable Securities owned by all Holders of all Registrable
Securities or
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(y) shall have an estimated market value at the time of such demand (based upon
the then market price of a share of Common Stock) of at least $1,000,000. The
Company shall file any registration statement required by this Section 3.1(a) (a
"Demand Registration Statement") with the Commission within thirty (30) days of
receipt of the requisite Holder demand and shall use its reasonable efforts to
cause the Demand Registration Statement to be declared effective by the
Commission as soon as practicable thereafter. The Company shall give written
notice of the proposed filing of the Demand Registration Statement to the
Holders of Registrable Securities and Exchangeable LLC Units as soon as
practicable (but in no event less than ten (10) days before the anticipated
filing date), and such notice shall offer such Holders the opportunity to
participate in such Demand Registration and to register such number of shares of
Registrable Securities as each such Holder may request. The Company shall use
its reasonable efforts to keep each such Demand Registration Statement
continuously effective for a period of forty five (45) days, unless the offering
pursuant to the Demand Registration Statement is an underwritten offering and
the managing underwriter requires that the Demand Registration Statement be kept
effective for a longer period of time, in which event the Company shall maintain
the effectiveness of the Demand Registration Statement for such longer period up
to one hundred twenty (120) days (such period, in each case, to be extended by
the number of days, if any, during which Holders were not permitted to make
offers or sales under the Demand Registration Statement by reason of Section 3.3
hereof). The Company may elect to include in any Demand Registration Statement
additional shares of Common Stock to be issued by the Company, subject, in the
case of an underwritten secondary Demand Registration, to cutback by the
managing underwriters. A registration shall not constitute a Demand Registration
under this Section 3.1(a) until the Demand Registration Statement has been
declared effective.
(b) Piggyback Rights. If the Company at any time
during the Supplemental Rights Period proposes to file a registration statement
under the Securities Act with respect to an offering of shares of Common Stock
for its own account or for the account of any holders of shares of its Common
Stock, in each case solely for cash (other than an Issuance Registration
Statement or a registration statement (i) on Form S-8 or any successor form to
Form S-8 or in connection with any employee or director welfare, benefit or
compensation plan, (ii) in connection with an exchange offer or an offering of
securities exclusively to existing security holders of the Company or its
subsidiaries or (iii) relating to a transaction pursuant to Rule 145 of the
Securities Act), the Company shall give written notice of the proposed
registration to the record owners of Registrable Securities and Exchangeable
LLC Units at least twenty (20) days prior to the filing of the registration
statement. The Holders of Registrable Securities shall have the right to
request that all or any part of the Registrable Securities be included in the
registration by giving written notice to the Company within ten (10) days after
the giving of the foregoing notice by the Company; provided, however, (A) if
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the registration relates to an underwritten primary offering on behalf of the
Company and the managing underwriters of the offering determine in good faith
that the aggregate amount of securities of the Company which the Company,
Holders of Registrable Securities and holders of other piggyback registration
rights propose to include in the registration statement exceeds the maximum
amount of securities that could practicably be included therein, the Company
will include in the registration, up to such maximum amount, first, the
securities which the Company proposes to sell, and second, pro rata, the
Registrable Securities and the securities proposed to be included by any
holders of other piggyback registration rights, and (B) if the registration is
an underwritten secondary registration on behalf of any of the other security
holders of the Company (the "Secondary Offering Security
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Holders") and the managing underwriters determine in good faith that the
aggregate amount of securities which the Holders of Registrable Securities, the
Secondary Offering Security Holders and the holders of other piggyback
registration rights propose to include in the registration exceeds the maximum
amount of securities that could practicably be included therein, the Company
will include in the registration, up to such maximum amount, first, the
securities to be sold for the account of the Secondary Offering Security
Holders, and second, pro rata, the Registrable Securities and the securities
proposed to be included by any holders of other piggyback registration rights.
The Company shall use its commercially reasonable efforts to cause, but shall
not be obligated to cause, the managing underwriter or underwriters of a
proposed underwritten offering to permit the Registrable Securities requested to
be included in a piggyback registration to be included on the same terms and
conditions as any similar securities of the Company included therein. (It is
understood, however, that the underwriters shall have the right to terminate
entirely the participation of the Holders of Registrable Securities if the
underwriters eliminate entirely the participation in the registration of all the
other holders electing to include securities in the registration (other than the
Company and the Secondary Offering Security Holders) because it is not
practicable to include such securities in the registration.) If the registration
is not an underwritten registration, then all of the Registrable Securities
requested to be included in the registration shall be included. Registrable
Securities proposed to be registered and sold pursuant to an underwritten
offering for the account of the Holders of Registrable Securities shall be sold
to prospective underwriters selected by such Holders and approved by the Company
and on the terms and subject to the conditions of one or more underwriting
agreements negotiated between the Company, the Secondary Offering Security
Holders, the Holders of Registrable Securities and any other holders demanding
registration and the prospective underwriters. Registrable Securities need not
be included in any registration statement pursuant to this provision if in the
opinion of counsel to the Company (a copy of which opinion is delivered to the
record owners of Registrable Securities) registration under the Securities Act
is not required for public distribution of the Registrable Securities. The
Company shall have the right to terminate or withdraw any registration
initiated by it under this Section 3.1(b) prior to the effectiveness of the
registration statement whether or not any holder has elected to include any
Registrable Securities in the registration statement.
(c) Company Repurchase. Upon receipt by the Company
of a registration demand pursuant to Section 3.1(a), the Company may, but will
not be obligated to, purchase for cash from any Holder so requesting
registration all, but not less than all, of the Registrable Securities which are
the subject of the request at a price per share equal to the average of the
Closing Prices of a share of Common Stock for the ten (10) trading days
immediately preceding the date of receipt by the Company of the registration
request. In the event the Company elects to purchase the Registrable Securities
which are the subject of a registration request, the Company shall notify the
Holder within five Business Days of the date of receipt of the request by the
Company, which notice shall indicate (i) that the Company will purchase for cash
the Registrable Securities held by the Holder which are the subject of the
request, (ii) the price per share, calculated in accordance with the preceding
sentence, which the Company will pay the Holder and (iii) the date upon which
the Company shall purchase the Registrable Securities, which date shall not be
later than the tenth business day after receipt of the registration request. If
the Company so elects to purchase the Registrable Securities which are the
subject of a registration request, then upon such purchase the Company shall be
relieved of its obligations under this Section 3.1 with respect to such
Registrable Securities.
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Section 3.2 Additional Registration Procedures. In connection
with any registration statement covering Registrable Securities filed by the
Company pursuant to Section 2.1 or 3.1 hereof:
(a) Each Holder agrees to provide in a timely manner
information requested by the Company regarding the proposed distribution by that
Holder of the Registrable Securities and all other information reasonably
requested by the Company in connection with the preparation of the registration
statement covering the Registrable Securities.
(b) The Company will, if requested by any of the
Holders, prior to filing a registration statement or prospectus, or any
amendment or supplement thereto in connection with any Demand Registration
Statement or Piggyback Registration Statement, furnish to each Selling Holder
and each underwriter, if any, 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 and underwriter, if any, such number
of conformed copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such
registration statement (including each preliminary prospectus) and such other
documents as such Selling Holder or underwriter 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 the 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) In connection with any Demand Registration
Statement or Piggyback Registration Statement, the Company will use reasonable
efforts to register or qualify the Registrable Securities under such securities
or blue sky laws of those jurisdictions in the United States (where an exemption
is not available) as any Selling Holder or managing underwriter or underwriters,
if any, reasonably (in light of the Selling Holder's intended plan of
distribution) requests; provided, however, that the Company will not be required
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to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction.
(e) In connection with any Demand Registration
Statement or Piggyback Registration Statement, the Company will enter into
customary agreements (including an underwriting agreement, if any, in customary
form) as are reasonably required in order to expedite or facilitate the
disposition of Registrable Securities pursuant to the Demand Registration
Statement or Piggyback Registration Statement. Each Selling Holder participating
in an underwritten offering shall also enter into and perform its or his
obligations under the underwriting agreement.
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(f) The Company shall cause all such Registrable
Securities to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(g) The Company will immediately 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 statement 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.
(h) The Company will make available for inspection by
any Selling Holder of such Registrable Securities, any underwriter participating
in any disposition pursuant to such Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other professional retained by any such Selling Holder
or underwriter (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
discharge their due diligence responsibility under the Securities Act, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any Inspectors in connection with the discharge of their
due diligence responsibility. 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 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.
(i) In connection with a disposition of the
Registrable Securities in which there is a participating underwriter or
underwriters, the Company will furnish to each Selling Holder and to each
underwriter, a signed counterpart, addressed to such Selling Holder or
underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants (to the extent permitted by the standards of the American Institute
of Certified Public Accountants), each in customary form and covering such
matters of the type customarily covered by opinions or comfort letters, as the
case may be, as the Holders of a majority of the Registrable Securities included
in such offering or the managing underwriter or underwriters therefor reasonably
requests.
(j) The Company will otherwise use its best efforts
to comply with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering a period of twelve (12) months,
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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).
Section 3.3 Material Developments; Suspension of Offering.
(a) Notwithstanding the provisions of Sections 2.1 or
3.1 hereof or any other provisions of this Agreement to the contrary, the
Company shall not be required to file a registration statement or to keep any
registration statement effective if the negotiation or consummation of a
transaction by the Company or any of its subsidiaries is pending or an event has
occurred, which negotiation, consummation or event would require additional
disclosure by the Company in the registration statement of material information
which the Company (in the judgment of management of the Company) has a bona
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fide business purpose for keeping confidential and the nondisclosure of which in
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the registration statement might cause the registration statement to fail to
comply with applicable disclosure requirements; provided, however, that the
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Company (i) will promptly notify the Holders of Registrable Securities otherwise
entitled to registration of the foregoing and (ii) may not delay, suspend or
withdraw the registration statement for such reason more than twice in any
twelve (12) month period or three times in any twenty-four (24) month period or
for more than ninety (90) days at any time. Upon receipt of any notice from the
Company of the happening of any event during the period the registration
statement is effective which is of a type specified in the preceding sentence or
as a result of which the registration statement or related prospectus contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statement therein, in
light of the circumstances under which they were made not misleading, Holders
agree that they will immediately discontinue offers and sales of the Registrable
Securities under the registration statement (until they receive copies of a
supplemental or amended prospectus that corrects the misstatements or omissions
and receive notice that any post-effective amendment has become effective). If
so directed by the Company, Holders will deliver to the Company any copies of
the prospectus covering the Registrable Securities in their possession at the
time of receipt of such notice. In the event the Company shall give notice of
the happening of an event of the kind described in this Section 3.3(a), the
Company shall extend the period during which the affected registration statement
is required to be maintained pursuant to this Agreement by the number of days
during the period from and including the date of the giving of notice pursuant
to this Section 3.3(a) to the date when the Company shall make available a
prospectus supplemented or amended to conform with the requirements of the
Securities Act.
(b) If all reports required to be filed by the
Company pursuant to the Exchange Act have not been filed by the required date
without regard 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 Securities Act, upon written notice
thereof by the Company to the Holders, the rights of the Holders to acquire
Registrable Securities pursuant to the Issuance Registration Statement or to
offer, sell or distribute any Registrable Securities pursuant to any Demand
Registration Statement or Piggyback Registration Statement or to require the
Company to take action with respect to the registration of any Registrable
Securities pursuant to this Agreement shall be suspended until the date on which
the
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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 Issuance Registration
Statement, the Demand Registration Statement or the Piggyback Registration
Statement and the Company shall notify the Holders as promptly as practicable
when such suspension is no longer required.
Section 3.4 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
(the "Registration Expenses"): (i) all registration and filing fees, (ii) fees
and expenses of compliance with securities or blue sky laws (including the
reasonable fees and expenses of counsel to the Company), (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) fees and disbursements of
counsel for the Company and the independent public accountants of the Company,
and (vii) the fees and expenses of any experts retained by the Company in
connection with such registration. The Holders shall be responsible for the
payment of any and all other expenses incurred by them in connection with the
registration and sale of Registrable Securities, including, without limitation,
brokerage and sales commissions, underwriting fees, discounts and commissions
attributable to the Registrable Securities, fees and disbursements of counsel
representing the Holders, and any transfer taxes relating to the sale or
disposition of the Registrable Securities.
Section 3.5 Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Selling Holder, its officers,
directors, employees, representatives, 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, actions, damages, liabilities, costs and expenses (including, without
limitation, but subject to the provisions of Section 3.7 hereof, reasonable
attorneys' fees and disbursements caused by any untrue statement or alleged
untrue statement of a material fact contained in any Demand Registration
Statement or Piggyback Registration Statement (individually, a "Resale
Registration Statement") or the 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,
or arising out of any untrue statement or alleged untrue statement of a material
fact contained in any prospectus contained in a Resale Registration Statement at
the time it became effective (a "Resale Prospectus"), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in light of the circumstances under 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; provided, however, that the Company will not be liable in any case to
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the extent that any such claim, loss, damage, liability or expense arises out of
or is based upon any untrue statement or omission contained in a Resale
Prospectus which was corrected in a supplement or amendment thereto if such
claim is brought by a purchaser of Registrable Securities from the Selling
Holder and the Selling Holder failed to deliver to such purchaser the supplement
or amendment to the Resale Prospectus in a timely manner.
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Section 3.6 Indemnification by Holders of Registrable
Securities. Each Selling Holder of Resale Registrable Securities covered by a
Registration Statement agrees 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 indemnity set forth in Section 3.5
from the Company to Selling Holders, 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 Resale Registration
Statement or Resale Prospectus or any amendment or supplement thereto. Each
Holder also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act on substantially the same basis as that of
the indemnification of the Company provided in this Section 3.6.
Section 3.7 Conduct of Indemnification Proceedings. Each
indemnified party shall give reasonably prompt notice to each indemnifying party
of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify the indemnifying party (i)
shall not relieve it from any liability which it may have under the indemnity
agreement provided in Section 3.5 or 3.6 above, unless and to the extent it did
not otherwise learn of such action and the lack of notice by the indemnified
party results in the forfeiture by the indemnifying party of substantial rights
and defenses and (ii) shall not, in any event, relieve the indemnifying party
from any obligations to the indemnified party other than the indemnification
obligation provided under Section 3.5 or 3.6 above. If the indemnifying party so
elects within a reasonable time after receipt of notice, the indemnifying party
may assume the defense of the action or proceeding at the indemnifying party's
own expense with counsel chosen by the indemnifying party and approved by the
indemnified party, which approval shall not be unreasonably withheld; provided,
--------
however, that if the defendants in any such action or proceeding include both
-------
the indemnified party and the indemnifying party and the indemnified party
reasonably determines based upon advice of legal counsel experienced in such
matters, that there may be legal defenses available to it which are different
from or in addition to those available to the indemnifying party, then the
indemnified party shall be entitled to separate counsel at the indemnifying
party's expense, which counsel shall be chosen by the indemnified party and
approved by the indemnifying party, which approval shall not be unreasonably
withheld; provided further, that it is understood that the indemnifying party;
-------- -------
shall not be liable for the fees, charges and disbursements of more than one
separate firm. If the indemnifying party does not assume the defense, after
having received the notice referred to in the first sentence of this Section,
the indemnifying party will pay the reasonable fees and expenses of counsel for
the indemnified party; in that event, however, the indemnifying party will not
be liable for any settlement effected without the written consent of the
indemnifying party. If an indemnifying party assumes the defense of an action or
proceeding in accordance with this Section, the indemnifying party shall not be
liable for any fees and expenses of counsel for the indemnified party incurred
thereafter in connection with that action or proceeding except as set forth in
the proviso in the second sentence of this Section 3.7. Unless and until a final
judgment is rendered that an indemnified party is not entitled to the costs of
defense under the provisions of this Section, the indemnifying party shall
reimburse, promptly as they are incurred, the indemnified party's costs of
defense.
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Section 3.8 Contribution.
(a) If the indemnification provided for in Section
3.5 or 3.6 hereof is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by 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.
(b) The Company and the Selling Holders agree that it
would not be just and equitable if contribution pursuant to this Section 3.8
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
Section 3.8(a). The amount paid or payable by an indemnifying party as a result
of the losses, claims, damages or liabilities referred to in Sections 3.5 and
3.6 hereof shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by the indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 3.8, 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 were offered 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.
Section 3.9 Participation in Underwritten Registrations. No
Holder may participate in any underwritten registration hereunder unless the
Holder (a) agrees to sell his or its Registrable Securities on the basis
provided in the applicable underwriting arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents in customary form as reasonably required under
the terms of such underwriting arrangements.
Section 3.10 Holdback Agreements. Each Holder whose
securities are included in a Demand Registration Statement or Piggyback
Registration Statement agrees not to effect any sale or distribution of the
securities registered or any similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 under the Securities Act, during the fourteen (14)
days prior to, and during the ninety (90)-day period beginning on, the effective
date of such registration statement (except as part of such registration), if
and to the extent requested in writing by the Company in
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the case of a non-underwritten public offering or if and to the extent requested
in writing by the managing underwriter or underwriters in the case of an
underwritten public offering.
ARTICLE IV.
MISCELLANEOUS
Section 4.1 Specific Performance. The parties hereto
acknowledge that there would be no adequate remedy at law if any party fails to
perform any of its obligations hereunder, and accordingly agree that each party,
in addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligation of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction,
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 holding at least two-thirds (2/3rds) of the then
outstanding Registrable Securities and Exchangeable LLC Units. 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. Any notice required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been
given (a) when delivered by hand or upon transmission by telecopier or similar
facsimile transmission device, (b) on the date delivered by a courier service,
or (c) on the third Business Day after mailing by registered or certified mail,
postage prepaid, return receipt requested, in any case addressed as follows:
(a) if to any Holder, to c/o The Xxxxx Company, L.C.,
127 South 000 Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000, or to such other
address and to such other Persons as the Holders may hereafter notify the
Company in writing; and
(b) if to the Company, to Health Care Property
Investors, Inc., 0000 XxxXxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000 (Attention: Xxxxxx X. Xxxxxxx), or to such other address as the Company
may hereafter specify in writing.
Section 4.4 Successors and Assigns. 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, the Holders and their respective successors and assigns
(including lenders in foreclosure).
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.
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Section 4.6 Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of California
without regard to the conflicts 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. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter of this Agreement.
Section 4.9 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of any provision of this Agreement.
Section 4.10 Selling Holders Become Party to this Agreement.
By asserting or participating in the benefits of registration of Registrable
Securities pursuant to this Agreement, each Holder agrees that it or he will be
deemed a party to this Agreement and be bound by each of its terms.
Section 4.11 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 to the extent required from time to time to enable Holders to sell
Registrable Securities without registration under the Securities Act within the
limitations of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, 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
filed such reports.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
HEALTH CARE PROPERTY INVESTORS, INC.,
a Maryland corporation
By: ________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, General
Counsel and Corporate Secretary
UNITHOLDERS
THE XXXXX COMPANY, L.C.,
a Utah limited liability company, in
its capacity as Manager of each
limited liability company named below
as a "Unitholder" and in its capacity
as General Partner of each limited
partnership named below as a
"Unitholder"
By: ________________________________
Name: Xxx X. Xxxxxxx
Title: President and Manager
Property Unitholder
-------- ----------
[OLD MILL II] XXXXX OLD MILL II, L.C., a Utah limited liability company
[ARUP I/XXXX XX] XXXXX-RESEARCH PARK ASSOCIATES, LTD., a Utah limited partnership
[ARUP III] XXXXX RESEARCH PARK ASSOCIATES VII, L.C., a Utah limited liability company
CHIMNEY RIDGE, L.C., a Utah limited liability company
[MYRIAD I/MYRIAD III] XXXXX-FOOTHILL ASSOCIATES, LTD., a Utah limited partnership
[MYRIAD II] XXXXX RESEARCH PARK ASSOCIATES VI, L.C., a Utah limited liability company
[STANSBURY] XXXXX STANSBURY II, X.X., a Utah limited liability company
[RANCHO VISTOSO] XXXXX RANCHO VISTOSO, L.C., a Utah limited liability company
[XXXXXX] XXXXX-ALTA VIEW ASSOCIATES, LTD., a Utah limited partnership
[HCA SUPPLY] XXXXX KAYSVILLE ASSOCIATES, L.C., a Utah limited liability company
[XXXXX XXXXX XXXXX HIGHLANDS DENTAL CLINIC, L.C., a Utah limited liability company
DENTAL]
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[LANSING] AMARILLO XXXX ASSOCIATES, a Utah general partnership
[EVANSTON] XXXXX EVANSTON, L.C., a Utah limited liability company
[DENVER I/ XXXXX DENVER MEDICAL, L.C., a Utah limited liability company
DENVER II]
[NORTHWEST II] XXXXX NORTHWEST MEDICAL CENTER TWO, L.C., a Utah limited liability company
[XXXXXXXX] XXXXX XXXXXXXX MEDICAL, L.C., a Utah limited liability company
16
