EXHIBIT 10.16
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is made and entered
into as of January 30, 1998, by and among American Office Park Properties, Inc.,
a California corporation ("AOP" or the "Company"), ABKB/LaSalle Securities
Limited Partnership, a registered investment adviser ("ABKB"), Harvard Private
Capital Realty, Inc., a Massachusetts corporation ("HPCR"), Xxxxx & Steers
Capital Management, Inc., a registered investment adviser ("C&S"), Xxxxxx
Xxxxxxx Asset Management, a registered investment adviser ("MSAM"), the Fidelity
entities signatories hereto (each a "Fidelity Entity" and collectively, "FIDO"),
Stanford University ("SU") and the State of Michigan Retirement Systems
("MICH"). ABKB, C&S, and MSAM are each referred to herein as an "Agent
Investor," and collectively as the "Agent Investors." Each Agent Investor
enters into this Agreement solely as agent for and for the benefit of such Agent
Investor's clients referred to in the Purchase Agreement (as defined below).
HPCR, each Fidelity Entity, SU and MICH are each referred to herein as a "Direct
Investor," and collectively as the "Direct Investors." The Agent Investors and
the Direct Investors are each referred to herein as an "Investor," and
collectively as the "Investors."
WHEREAS, pursuant to that certain Common Stock Purchase Agreement dated as
of the Initial Funding Date (as defined below), between the AOP, the Direct
Investors and the Agent Investors, as agents for and on behalf of the Pecuniary
Owners (the "Purchase Agreement"), the Investors have agreed to purchase up to
5,740,741 shares of AOP's Common Stock, par value $0.10 per share (the "Shares")
for themselves or as agent for and for the benefit of the Pecuniary Owners;
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company and
the Investors agreed that the Company would grant certain registration rights to
the Investors with respect to the Shares;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized terms shall have
the following meanings:
Agent Investor: As defined in the Recitals to this Agreement.
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AOP Common Stock: The Common Stock, $0.10 of AOP.
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Appraisal: See Section 2(e) hereof.
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Direct Investor: As defined in the Recitals to this Agreement.
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Exchange Act: The Securities Exchange Act of 1934 and the rules and
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regulation promulgated thereunder, as amended from time to time.
Fair Market Value: See Section 2(e) hereof.
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Initial Demand Registration: See Section 2(b) hereof.
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Initial Funding Date: The date of the Initial Funding as defined in
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the Purchase Agreement.
Investor: As defined in the Recitals to this Agreement.
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IPO: As defined in the Purchase Agreement.
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Merger: As defined in the Purchase Agreement.
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Person: An individual, partnership, corporation, limited liability
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company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement, as
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amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
Purchase Agreement: As defined in the Recitals to this Agreement.
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Put: As defined in Section 2(e) hereof.
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Registrable Securities: (a) The Shares, (b) any securities issued or
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issuable with respect to the Shares by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise and (c) any additional Common
Stock of AOP or any successor of AOP purchased by the Investors (for themselves
or as agents for and on behalf of the Pecuniary Owners) pursuant to the Initial
Funding or any Subsequent Funding pursuant to the Purchase Agreement. Any
Registrable Security will cease to be a Registrable Security when (i) a
registration statement covering such Registrable Security has been declared
effective by the SEC and the Registrable Security has been disposed of pursuant
to such effective registration statement, (ii) the Registrable Security is sold
under circumstances in which all of the applicable conditions of Rule l44 or
Rule 144A (or any similar provisions then in force) under the Securities Act are
met, (iii) the Registrable Security has been otherwise transferred, the Company
has delivered a new certificate or other evidence of ownership for it not
bearing a legend restricting further transfer, and it may be resold
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without subsequent registration under the Securities Act, or (iv) the
Registrable Security is eligible for resale pursuant to Rule 144(k).
Registration Expenses: See Section 5 hereof.
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Registration Statement: Each Registration Statement of the Company
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that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
SEC: The Securities and Exchange Commission or any successor entity.
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Securities Act: The Securities Act of 1933 and the rules and
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regulations promulgated thereunder, as amended from time to time.
Shares: As defined in the Recitals to this Agreement.
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Shelf Registration: See Section 2(a) hereof.
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Subsequent Demand Registration: See Section 2(c) hereof.
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Subsequent Funding Date: The date of any Subsequent Funding as
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defined in the Purchase Agreement.
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Registration Rights.
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In the event that the Merger is consummated, the Investors shall have
the rights set forth in Section 2(a) hereof as to Shares issued to them
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thereafter pursuant to the Purchase Agreement. In the event that the Merger is
not consummated on or before April 30, 1998, AOP will undertake efforts to
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complete an IPO promptly thereafter. In the event that AOP (or any successor) is
not eligible to use Securities Act Form S-3 (or comparable successor form) on or
before April 30, 1998 (because AOP or any successor is not then subject to the
reporting requirements of the Exchange Act or for any other reason), then the
Investors shall have the rights set forth in Sections 2(b), 2(c), and 2(d)
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hereof, subject to the provisions of Section 2(f) hereof.
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(a) Shelf Registration. In the event that the Merger is
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consummated, Company will file a "shelf" registration statement on any
appropriate form pursuant to Rule 415 (or similar rule that may be adopted by
the SEC) under the Securities Act (a "Shelf Registration"), as soon as
practicable after any Subsequent Funding registering the resale of any
Registrable Securities issued in such Subsequent Funding.
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The Company hereby agrees to use all commercially reasonable efforts
to cause such Shelf Registration to become effective as soon as practicable
thereafter and to keep it continuously effective for a period terminating on the
second year anniversary of the date on which the SEC declares the Shelf
Registration effective, or such shorter period as shall terminate on the date on
which all the Registrable Securities covered by the Shelf Registration have been
sold pursuant to such Shelf Registration or are no longer Registrable
Securities.
The Company further agrees to promptly supplement or make amendments
to the Shelf Registration, if required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the Securities
Act or the rules and regulations thereunder for shelf registration; provided
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that no supplement or amendment to the Shelf Registration Statement shall be
made that would adversely affect an Investor or a Pecuniary Owner without such
Person's prior written consent. If Investors holding in the aggregate in excess
of 50% of the Registrable Securities covered by the Shelf Registration so elect,
the offering of Registrable Securities pursuant to such registration shall be in
the form of an Underwritten Offering.
(b) Initial Demand Registration. In the event that the Company or
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its successor is not eligible to use Securities Act Form S-3 (or comparable
successor form) on or before April 30, 1998 (because AOP or its successor is not
then subject to the reporting requirements of the Exchange Act or for any other
reason), then Investors holding not less than a majority of the aggregate
Registrable Securities outstanding may make a written request (the "Initial
Demand Notice") for registration under the Securities Act (the "Initial Demand
Registration") of the Registrable Securities then held by the Investors. The
Initial Demand Notice shall be sent to the Company and all of the Investors in
accordance with Section 9(e) hereof. The Initial Demand Notice will specify the
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number of shares of Registrable Securities proposed to be sold, provided that
the aggregate amount of Shares to be registered pursuant to the Initial Demand
Registration shall not be less than a majority of the Registrable Securities
then held by the Investors. Following receipt of the Initial Demand Notice from
the Investors, the Company promptly will file and use all commercially
reasonable efforts to cause to be effective a registration statement on any
available form (including, if no other form is available, Form S-11) which will
cover the resale of the Registrable Securities that the Company has been so
requested to register by the Investors. Notwithstanding the foregoing, the
Company shall file and cause to be effective a Shelf Registration on Securities
Act Form S-3 (or comparable successor form) pursuant to Section 2(a) above as
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soon as practicable after it becomes eligible to use such form.
The Company shall not be required to effect more than one Initial
Demand Registration under this Section 2(b). A registration requested pursuant
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to this Section 2(b) will not be deemed to have been effected (and it shall not
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count as the Initial Demand Registration) unless the Registration Statement
relating thereto has become effective under the Securities Act; provided,
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however, that if, after such Registration Statement has become effective, the
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offering of the Registrable Securities pursuant to such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court, such
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registration will be deemed not to have been effected (and it shall not count as
the Initial Demand Registration); provided further that, if such Registration
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Statement does not become effective primarily due to an act or failure to act on
the part of the Investors or a decision by the Investors to revoke the Initial
Demand Notice as contemplated below, then the registration will be deemed to
have been effected (and shall count as the Initial Demand Registration).
Investors holding in excess of 50% of the Registrable Securities covered by the
Initial Demand Registration may at any time prior to the effective date of the
Registration Statement relating to such registration revoke the Initial Demand
Notice by providing a written notice to the Company (in which case such Initial
Demand Registration shall count as the Initial Demand Registration).
If Investors holding in the aggregate in excess of 50% of the
Registrable Securities covered by the Demand Registration so elect, the offering
of Registrable Securities pursuant to such registration shall be in the form of
an Underwritten Offering. If the managing underwriter or underwriters of such
offering advise the Company and the Investors in writing that in their opinion
the number of shares of Registrable Securities requested to be included in such
offering is sufficiently large to materially and adversely affect the success of
such offering, the Company will include in such registration the aggregate
number of Registrable Securities which in the opinion of such managing
underwriter or underwriters can be sold without any such material adverse
effect. If more than 10% of the Registrable Securities requested to be included
in such offering are excluded, such registration shall not count as the one
Initial Demand Registration. If any Registrable Securities are excluded, the
number of Registrable Securities of the Investors to be included in such
Registration shall be reduced pro rata (according to the total number of
Registrable Securities or shares, as the case may be, requested to be registered
by each such holder and all other holders of registration rights who have
indicated the desire to participate in such registration), to the extent
necessary to reduce the total amount necessary to be included in the Offering to
the amount recommended by such managing underwriter or underwriters.
No registration pursuant to a request or requests referred to in this
Section 2(b) shall be deemed to be a Subsequent Demand Registration (as defined
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below).
(c) Subsequent Demand Registration. In the event that the Company
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(or any successor) is not eligible to use Securities Act Form S-3 (or comparable
successor form) on or before April 30, 1998 (because AOP (or any successor) is
not then subject to the reporting requirements of the Exchange Act or for any
other reason), then at any time during the three year period following the
Initial Funding Date, Investors holding in the aggregate not less than 25% of
the aggregate Registrable Securities then outstanding may make a written request
(the "Subsequent Demand Notice") for registration under the Securities Act (a
"Subsequent Demand Registration") of such Registrable Securities. The
Subsequent Demand Notice shall be sent to the Company and all of the Investors
in accordance with Section 9(e) hereof. The Initial Demand Notice and the
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Subsequent Demand Notice are sometimes referred to collectively as a "Demand
Notice." The Initial Demand Registration and the Subsequent Demand Registration
are sometimes referred to collectively as a "Demand Registration." The
Subsequent Demand Notice will specify the number of shares of Registrable
Securities proposed to be sold and will also specify the intended method of
disposition thereof. Following receipt of a Subsequent Demand
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Notice from the Investors, the Company promptly will file and use all
commercially reasonable efforts to cause to be effective a registration
statement on any appropriate form which will cover the Registrable Securities
that the Company has been so requested to register by the Investors.
The Company shall not be required to effect more than two Subsequent
Demand Registrations under this Section 2(c). A registration requested pursuant
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to this Section 2(c) will not be deemed to have been effected (and it shall not
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count as one of the two Subsequent Demand Registrations) unless the Registration
Statement relating thereto has become effective under the Securities Act;
provided, however that if, after such Registration Statement has become
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effective, the offering of the Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court, such registration
will be deemed not to have been effected (and it shall not count as one of the
two Subsequent Demand Registrations); provided further that, if such
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Registration Statement does not become effective primarily due to an act or
failure to act on the part of the Investors or a decision by the Investors to
revoke the Subsequent Demand Notice as contemplated below, then the registration
will be deemed to have been effected (and shall count as one of the Subsequent
Demand Registrations). Investors holding in excess of 50% of the Registrable
Securities covered by a Demand Registration may at any time prior to the
effective date of the Registration Statement relating to such registration
revoke a Subsequent Demand Notice by providing a written notice to AOP (in which
case such Subsequent Demand Registration shall count as one of the two
Subsequent Demand Registrations).
If Investors holding in the aggregate in excess of 50% of the
Registrable Securities covered by the Subsequent Demand Registration so elect,
the offering of Registrable Securities pursuant to such registration shall be in
the form of an Underwritten Offering. If the managing underwriter or
underwriters of such offering advise the Company and the Investors in writing
that in their opinion the number of shares of Registrable Securities requested
to be included in such offering is sufficiently large to materially and
adversely affect the success of such offering, the Company will include in such
registration the aggregate number of Registrable Securities requested to be
included, which in the opinion of such managing underwriter or underwriters can
be sold without any such material adverse effect. If more than 10% of the
Registrable Securities requested to be included in such offering are excluded,
such registration shall not count as one of the two Subsequent Demand
Registrations. If any Registrable Securities proposed to be registered
hereunder are required to be excluded pursuant to this paragraph, the number of
Registrable Securities of the Investors to be included in such Registration
shall be reduced pro rata (according to the total number of Registrable
Securities or shares, as the case may be, requested to be registered by each
such holder and all other holders of registration rights who have indicated the
desire to participate in such registration), to the extent necessary to reduce
the total amount to be included in the Offering to the amount recommended by
such managing underwriter or underwriters.
No registration pursuant to a request or requests referred to in this
Section 2(c) shall be deemed to be a Shelf Registration or an Initial Demand
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Registration.
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(d) Incidental Registration. If at any time during the period
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beginning April 30, 1998 and ending three years following the Initial Funding
Date, a Shelf Registration Statement on Form S-3 covering the Registrable
Securities is not then in effect, the Company proposes to file a registration
statement under the Securities Act (other than in connection with a Registration
Statement on Form S-4 or S-8, or any form that is substituting therefor or is a
successor thereto) with respect to an offering of any class of security by the
Company for its own account or for the account of any of its security holders
(including the Investors), then the Company shall give written notice of such
proposed filing to the Investors as soon as practicable (but in no event less
than thirty days before the anticipated filing date), and such notice shall (i)
offer the Investors the opportunity to register such number of Registrable
Securities as they may request and (ii) describe such securities and specify the
form and manner and other relevant facts involved in such proposed registration
(including, without limitation, (x) whether or not such registration will be in
connection with an Underwritten Offering and, if so, the identity of the
managing underwriter and whether such Underwritten Offering will be pursuant to
a "best efforts" or "firm commitment" underwriting and (y) the price (net of any
underwriting commissions, discounts and the like) at which the Registrable
Securities are reasonably expected to be sold, if such disclosure is acceptable
to the managing underwriter). The Investors shall advise the Company in writing
within twenty (20) days after the date of receipt of such notice from the
Company of the number of Registrable Securities for which registration is
requested. The Company shall include in such Registration Statement all such
Registrable Securities so requested to be included therein, and, if such
registration is an Underwritten Registration, the Company shall use its
commercially reasonable efforts to cause the managing underwriter or
underwriters to permit the Registrable Securities requested to be included in
the registration statement for such offering to be included (on the same terms
and conditions as similar securities of the Company included therein to the
extent appropriate); provided, however, that if the managing underwriter or
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underwriters of such offering advise the Company and the Investors in writing
that in their opinion, either because of (i) the kind of securities which the
Investors, the Company or any other Persons intend to include in such offering
or (ii) the size of the offering which the Investors or such other Persons
intend to make, the success of the offering would be materially and adversely
affected by inclusion of the Registrable Securities requested to be included,
then (A) in the event that the size of the offering is the basis of such
managing underwriter's opinion, the amount of securities to be offered for the
account of the Investors and other holders registering securities of the Company
pursuant to similar incidental registration rights shall be reduced pro rata
(according to the total number of Registrable Securities or shares, as the case
may be, requested to be registered by each such holder and all other holders of
registration rights who have indicated the desire to participate in such
registration) to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount recommended by such managing
underwriter or underwriters; and (B) in the event that the combination of
securities to be offered is the basis of such managing underwriter's opinion,
(x) the Registrable Securities and other securities to be included in such
offering shall be reduced as described in clause (A) above or, (y) if the
actions described in clause (A) would, in the judgment of the managing
underwriter, be insufficient to substantially eliminate the adverse effect that
inclusion of the Registrable Securities requested to be included would have on
such offering,
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such Registrable Securities will be excluded from such offering. The Company
shall have the right to postpone or withdraw any registration effected pursuant
to this Section 2(d) without obligation to any Investor or Pecuniary Owner.
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No registration pursuant to a request or requests referred to in this
Section 2(d) shall be deemed to be a Shelf Registration or a Demand
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Registration.
(e) Put Rights. In the event that within eighteen (18) months after
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the Initial Funding Date (i) the Merger has not closed and (ii) AOP (or any
successor) has not closed on an IPO, AOP shall notify the Investors that it will
have its business as a whole appraised on a going concern basis in accordance
with the procedures set forth in this Section 2(e) (the "Appraisal"). Each
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Investor shall have the right to elect, by delivering written notice to the
Company during the thirty (30) day period following delivery of the Appraisal,
to have AOP redeem all, but not less than all, of the Shares then held by such
Investor (the "Put"). The price to be paid for the Shares upon exercise of the
Put shall be their fair market value based on the Appraisal (the "Fair Market
Value"). Payment shall be made in immediately available funds within forty-five
(45) days after delivery of the Appraisal.
AOP and the Investors shall use reasonable efforts to agree on a single MAI
certified appraiser to conduct the Appraisal. If they are unable to agree on a
single appraiser within 15 days after the date that is eighteen (18) months
after the Initial Funding Date, the Appraisal shall be conducted by a panel of
three MAI certified appraisers qualified to appraise AOP on a going concern
basis, one of whom shall be selected by AOP, one of whom shall be selected by
Investors then holding a majority in interest of the Shares within 10 days after
AOP's selection of an appraiser, and the third of whom shall be selected by the
first two within three days after the first two are selected. Each appraiser,
within 15 days after the third such party is so selected, shall submit to AOP
and the Investors a determination of such Fair Market Value, and the mean of the
two closest determinations shall be the Fair Market Value. AOP and the
Investors shall each pay fifty percent (50%) of the cost of the Appraisal. PSI
shall be deemed to have consented to all transfers of AOP's assets necessary to
effect the payments required by this Section 2(e), if any.
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(f) General Provisions. The Company shall not be required to effect
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any registration hereunder (other than on Form S-3 or any successor form
relating to secondary offerings) within three months after the effective date of
any other registration statement of the Company (other than a Form S-4 or S-8 or
any successor form). If, at the time of any request to register Registrable
Securities pursuant to Section 2(b) or (c), the Company is engaged or has fixed
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plans to engage within thirty (30) days of the time of the request in a
registered public offering as to which the Investors may include Registrable
Securities pursuant to Section 2(d) or is engaged in any other material activity
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which, in the good faith determination of the Company's Board of Directors,
would be materially adversely affected by the requested registration to the
material detriment of the Company, then the Company may at its option direct
that such request be delayed for a period not in excess of one hundred twenty
(120) days from the effective date of such offering or the date of commencement
of such other material activity, as the case may be,
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such right to delay a request to be exercised by the Company not more than once
in any twelve-month period.
3. Restriction on Sale of Securities. (a) The Company agrees not to
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effect for its own account any public sale or distribution of any securities
similar to those being registered, or any securities convertible into or
exchangeable or exercisable for such securities (except pursuant to a
registration statement on Form S-4 or S-8, or any substitute form that may be
adopted by the SEC) during the ten days prior to the filing of a registration
statement with respect to an Underwritten Offering, and during the 90-day period
beginning on the effective date of such Registration Statement (except as part
of such Registration Statement).
(b) In an Underwritten Offering of securities of the Company pursuant to a
registration statement, if requested by the Company and the managing underwriter
and if each Direct Investor and Pecuniary Owner has been given the opportunity
to participate as seller in such Underwritten Offering in accordance with the
procedures specified in Section 2(d) hereof, each Direct Investor and Pecuniary
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Owner shall agree not to sell publicly or otherwise transfer or dispose of any
Registrable Securities or other securities of the Company held by such Direct
Investor or Pecuniary Owner for a specified period of time (not to exceed 180
days in the case of an initial public offering (which cannot occur post-Merger),
or 90 days in all other cases) following the effective date of such registration
statement, provided that all other stockholders of the Company (other than the
Direct Investors and Pecuniary Owners) holding not less than the number of
shares of Common Stock held by such Direct Investor or Pecuniary Owner and all
executive officers and directors of the Company enter into similar agreements.
4. Registration Procedures. In connection with the Company's
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registration obligations pursuant to Section 2 hereof, the Company will use its
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commercially reasonable efforts to effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will use commercially
reasonable efforts to effect such registration as expeditiously as possible, and
to:
(a) prepare and file with the SEC, as soon as practicable, and in any
event within 60 days from the date of request, a Registration Statement relating
to the applicable registration on any appropriate form under the Securities Act,
which forms shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof and shall
include all required financial statements of the Company, and use its
commercially reasonable efforts to cause such Registration Statement to become
effective; provided that before filing a Registration Statement or Prospectus or
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any amendments or supplements thereto, including documents incorporated by
reference after the initial filing of the Registration Statement, the Company
will furnish the Investors and the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review of
the Investors and the underwriters, if any, and the Company will not file any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto (including such documents incorporated by reference) (i) unless the
Investors shall have had a reasonable
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opportunity to review and comment on such documents or (ii) to which the
underwriters, if any, shall reasonably object (except in the case of a filing
pursuant to Section 2(d) hereof);
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(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period, or such shorter
period which will terminate when all Registrable Securities included in such
Registration Statement have been sold; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the provisions of
all securities included in such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to the
Prospectus; the Company shall not be deemed to have used commercially reasonable
efforts to keep a Registration Statement effective during the applicable period
if it voluntarily takes any action that would result in the Investors not being
able to sell Registrable Securities during that period unless such action is
required under applicable law; provided that the foregoing shall not apply to
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actions taken by the Company in good faith and for valid business reasons,
including without limitation the acquisition or divestiture of assets, so long
as the Company promptly thereafter complies with the requirements of Section
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4(j) hereof, if applicable;
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(c) notify the Investors and the managing underwriters, if any,
promptly, and (if requested by any such Person) confirm such advice in writing,
(l) when the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to the Registration Statement or any post-
effective amendment, when the same has become effective, (2) of any request by
the SEC for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (3) of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (4) if at any time during the
distribution of any Registrable Securities the representations and warranties of
the Company contemplated by paragraph (l) below cease to be true and correct,
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(5) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and (6) of the happening of any event which makes any statement made in the
Registration Statement, the Prospectus or any document incorporated therein by
reference untrue or which requires the making of any changes in the Registration
Statement, the Prospectus or any document incorporated therein by reference in
order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if reasonably requested by the managing underwriter or
underwriters or by Investors holding in the aggregate in excess of 50% of the
Registrable Securities covered by the Registration Statement, promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters and the Investors agree should be
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included therein relating to the sale of the Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
Underwritten (or best efforts underwritten) Offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(f) furnish to each Investor and each managing underwriter, if any,
without charge, at least one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(g) deliver to each Investor and the underwriters, if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons may reasonably request;
the Company consents to the use of the Prospectus or any amendment or supplement
thereto by the Investors and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the Investors, the underwriters, if any, and their
respective counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions as the Investors or any underwriter reasonably requests in
writing and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Registrable Securities covered by
the Registration Statement; provided, however, that the Company shall not be
required in connection with this paragraph (h) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
(i) cooperate with the Investors and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at least two
business days prior to any sale of Registrable Securities to the underwriters;
(j) upon the occurrence of any event contemplated by Section 4(c)(6)
---------------
above, prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document as promptly as practicable so
that, as thereafter delivered to the purchasers of the Registrable Securities,
the Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light of
the circumstances under which they are made, not misleading;
11
(k) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
(l) in connection with any Underwritten Offering: enter into such
agreements (including an underwriting agreement) and take all such other actions
in connection therewith in order to expedite or facilitate the disposition of
such Registrable Securities and in connection therewith, (1) make such
representations and warranties to the underwriters, in form, substance and scope
as are customarily made by issuers to underwriters in primary Underwritten
Offerings; (2) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters), if any, covering the matters
customarily covered in opinions requested in Underwritten Offerings and such
other matters as may be reasonably requested by the Investors and the
underwriters, if any; (3) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed to the
underwriters, if any, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters by underwriters in
connection with primary Underwritten Offerings; (4) if an underwriting agreement
is entered into, the same shall set forth in full the indemnification provisions
and procedures of Section 6 hereof or substantially similar provisions with
---------
respect to all parties to be indemnified pursuant to said Section; (5) deliver
such documents and certificates as may be reasonably requested by the managing
underwriters, if any, to evidence compliance with clause (1) above and with any
----------
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company; and (6) participate in a "road show" or other
general solicitation of interest with respect to such Registrable Securities as
may be requested by the managing underwriters. The above shall be done at each
closing under such underwriting or similar agreement or as and to the extent
required thereunder;
(n) make available for inspection by one representative of the
Investors, any underwriter participating in any disposition pursuant to such
registration, and any attorney or accountant retained by any underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company and cause the Company's officers, trust managers and employees to supply
all information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such registration; provided that all
--------
such records, information or documents made available by the Company shall be
kept confidential by such Persons unless disclosure of such records, information
or documents is required by court or administrative order;
(o) otherwise use its commercially reasonable efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
12
(p) cooperate with the Investors and each underwriter participating
in the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the National Association
of Securities Dealers, Inc. (the "NASD"); and
(q) give prompt notice to the Investors of (i) the filing of a
registration statement filed pursuant to the Exchange Act relating to any class
of equity securities of the Company ("an Exchange Act Registration Statement");
and (ii) the effectiveness of such Exchange Act Registration Statement and the
number of shares of such class of equity securities outstanding as reported in
such Exchange Act Registration Statement, in order to enable the Investors to
comply with any reporting requirements under the Exchange Act or the Securities
Act.
The Company may require the Investors and each Pecuniary Owner, as
applicable, to furnish to the Company such information regarding the Investors,
Pecuniary Owners and the distribution of Registrable Securities as the Company
may from time to time reasonably request in writing.
Each Investor agrees by acquisition of the Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 4(c)(3), (5) or (6) hereof, the Investors will
---------------------------
forthwith discontinue disposition of Registrable Securities until the Investors'
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(j) hereof, or until it is advised in writing (the "Advice") by the
------------
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the Prospectus, and, if so directed by the Company, each Investor will deliver
to the Company (at the Company's expense), all copies, other than permanent file
copies then in each Investor's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time periods regarding the
effectiveness of Registration Statements set forth in Section 2 hereof and
---------
Sections 4(b) and 4(c) hereof shall be extended by the number of days during the
------------- ----
period from and including the date of the giving of such notice pursuant to
Section 4(c)(6) hereof to the date when the Investors shall receive copies of
---------------
the supplemented or amended prospectus contemplated by Section 4(j) hereof or
------------
the Advice.
5. Registration Expenses. All expenses incident to the Company's
---------------------
performance of or compliance with this Agreement, including without limitation:
all registration and filing fees; fees with respect to filings required to be
made with the NASD; fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel for the
underwriters or the Investors in connection with blue sky qualifications of the
Registrable Securities and determination of their eligibility for investment
under the laws of such jurisdictions as the managing underwriters and the
Investors may designate, but no other expenses of counsel for the underwriters);
printing expenses, messenger, telephone and delivery expenses; fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses of
any
13
comfort letters or costs associated with the delivery by independent
certified public accountants of a comfort letter or comfort letters requested
pursuant to Section 4(l) hereof); securities acts liability insurance, if the
------------
Company so desires; all internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties); the expense of any annual audit; the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed; and the fees and expenses of any Person, including
special experts, retained by the Company (all such expenses being herein called
"Registration Expenses") will be borne by the Company regardless of whether the
Registration Statement becomes effective. The Company shall not have any
obligation to pay any underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities, or any legal fees and expenses of counsel
to the Investors in excess of $20,000, except as expressly provided in this
Agreement or the Purchase Agreement.
6. Indemnification; Contribution.
------------------------------
(a) Indemnification by Company. The Company agrees to indemnify and
--------------------------
hold harmless each Investor and each Pecuniary Owner and their respective
partners, officers, directors, employees and agents, and each Person who
controls any such Persons (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) against all losses claims, damages,
liabilities and expenses arising out of or based upon any violation of the
Securities Act, the Exchange Act or any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by or on behalf of any Investor
or any Pecuniary Owner, as the case may be, expressly for use therein. The
Company will also indemnify underwriters participating in the distribution and
each Person who controls such Persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of each Investor and each Pecuniary
Owner, if requested.
(b) Indemnification By Holder of Registrable Securities. Each
---------------------------------------------------
Investor and each Pecuniary Owner, severally and not jointly, agrees to
indemnify and hold harmless the Company and its directors, officers, employees
and agents, each underwriter participating in the distribution and each Person
who controls the Company or any such underwriter (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such Investor, for itself or as agent for
and on behalf of any Pecuniary Owner, to the Company specifically for inclusion
in such Registration Statement or Prospectus.
14
In no event shall the liability of any Investor or any Pecuniary Owner under
this Section 6 be greater in amount than the dollar amount of the proceeds
---------
received by such Person upon the sale of the Registrable Securities sold by such
Person giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to information
so furnished in writing by such Persons specifically for inclusion in any
Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
--------------------------------------
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any Person
-------- -------
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (a) the
indemnifying party has agreed to pay such fees or expenses, (b) the indemnifying
party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such Person or (c) based upon written advice of
counsel to such Person, there shall be one or more defenses available to such
Person that are not available to the indemnifying party or there shall exist
actual or potential conflicts of interest pursuant to applicable rules of
professional conduct between such Person and the indemnifying party (in which
case, if the Person notifies the indemnifying party in writing that such Person
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such Person), in each of which events the fees and expenses of such
counsel shall be at the expense of the indemnifying party, provided, however,
that if the Company is the indemnifying party, the Company shall not be
obligated to bear the expense of more than one separate counsel. The
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld), but if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the indemnifying party shall
indemnify and hold harmless the indemnified parties from and against any loss or
liability (to the extent stated above) by reason of such settlement or judgment.
No indemnified party will be required to consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.
(d) Contribution. If for any reason the indemnification provided for in
------------
the preceding clauses (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by the preceding clauses (a)
and (b), then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnified party and the indemnifying party, but also
the relative fault of the indemnified party and the indemnifying party, as well
as any other relevant equitable
15
considerations, provided, that no Investor and no Pecuniary Owner shall be
--------
required to contribute an amount greater than the dollar amount of the proceeds
received by such Person with respect to the sale of the Registrable Securities
sold by such Person giving rise to such indemnification obligation. The relative
fault of the Company on the one hand and of each Investor and each Pecuniary
Owner 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 such party, and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentations.
7. Rule 144 and Rule 144A. The Company hereby agrees that, from and after
----------------------
the date on which it becomes subject to the reporting requirements of the
Exchange Act, it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
SEC thereunder (or, if the Company is not required to file such reports, it
will, upon the request of any of the Investors, make publicly available other
information so long as necessary to permit sales pursuant to Rule 144 and Rule
144A under the Securities Act), and it will take such further action as the
Investors may reasonably request, all to the extent required from time to time
to enable the Investors to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by (a)
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, (b) Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or (c) any similar rule or regulation hereafter adopted by the
SEC. Upon the request of an Investor, the Company will deliver to each such
Investor a written statement as to whether it has complied with such information
and requirements.
8. Participation in Underwritten Registrations.
-------------------------------------------
(a) If any of the Registrable Securities covered by the Shelf
Registration or a Demand Registration are to be sold in an Underwritten
Offering (excluding under Section 2(d)), the investment banker or investment
------------
bankers and manager or managers that will administer the offering will be
selected by Investors holding in the aggregate in excess of 50% of the
Registrable Securities covered thereby; provided that such investment bankers
--------
and managers must be reasonably satisfactory to the Company.
(b) No Person may participate in any Underwritten Offering hereunder unless
such Person (i) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements, unless such Person
is prohibited by applicable law from executing such documents. Nothing in this
Section 8 shall be construed to create any additional rights regarding the
---------
registration of Registrable Securities in any Person otherwise than as set forth
herein.
16
9. Miscellaneous.
-------------
(a) Remedies. Each party hereto, in addition to being entitled to exercise
--------
all rights provided herein or granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement to
the extent available under applicable law. Each party hereto 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.
(b) Third Party Registration Rights. The Company will not on or after the
-------------------------------
date of this Agreement enter into any agreement granting registration rights to
any other Person with respect to the securities of the Company that are senior
to the rights granted to the Investors hereunder without the written consent of
the Investors. Except as disclosed on Exhibit A attached hereto, the Company
---------
has not previously entered into any agreement with respect to its securities
granting any registration rights to any Person.
(c) Agent Investors.
---------------
(i) The Company acknowledges and agrees that each of the Pecuniary
Owners has initially appointed certain of the Agent Investors to act as its
agent and on its behalf in connection with the matters contemplated by this
Agreement. Until such time as the Company shall have received a written notice
from any Pecuniary Owner or any Agent Investor that such Agent Investor is no
longer acting as such Pecuniary Owner's agent hereunder, the Company shall be
entitled to rely on any instructions and notices received from the Agent
Investors on behalf of the Pecuniary Owner as if received from such Pecuniary
Owner directly. The parties hereto further acknowledge and agree that the Agent
Investors shall act solely as agent for and on behalf of the Pecuniary Owners in
connection with the matters set forth in this Agreement and that no Agent
Investor is acting in its individual capacity in connection with this Agreement
or the transactions contemplated hereby.
(ii) In the event that any Pecuniary Owner shall at any time
subsequent to the date hereof appoint a successor agent to any Agent Investor in
connection with the matters set forth in this Agreement, such successor or
Pecuniary Owner shall be entitled to, and to exercise on behalf of such
Pecuniary Owner, all of the rights and remedies provided for herein with respect
to such Investor or such Pecuniary Owner, as the case may be, and the rights and
remedies of such Pecuniary Owner hereunder shall not in any way be modified,
limited, delayed or impaired as a consequence of such appointment.
(iii) The provisions of Sections 5, 6 and this Section 9(c) shall
------------- ------------
remain in full force and effect with respect to each Agent Investor
notwithstanding any termination of any Agent Investor's appointment as agent for
and on behalf of any or all of the Pecuniary Owners hereunder.
17
(iv) Reference herein to the Agent Investors "holding" Registrable
Securities shall mean holding such securities as agent for and on behalf of the
Pecuniary Owners.
(d) 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 written consent of the Company and the Investors holding not
less than one hundred percent (100%) of the Registrable Shares then outstanding;
provided, that the provisions of Sections 5, 6, and 9(c) may not, under any
-------- ------------- ----
circumstances and notwithstanding any termination of any Agent Investor's
appointment as agent for and on behalf of any or all of its Pecuniary Owners
hereunder, be amended, modified, supplemented or waived without the written
consent of each Investor.
(e) Notices. The notice provisions contained in Section 8.6 of the Purchase
------- -----------
Agreement shall be incorporated herein and shall be governing under this
Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
holders of Registrable Securities who are permitted transferees of the
Registrable Securities under the Purchase Agreement, provided further, that the
Company cannot assign its rights hereunder except pursuant to a merger.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE
-------------
PARTIES HERETO, SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO
ITS PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any provision of this Agreement is held to be
------------
illegal, invalid or unenforceable under any current or future law, and if the
rights or obligations of the parties under this Agreement would not be
materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof,
and the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance therefrom. In lieu of such illegal, invalid or
unenforceable provision, there shall be added simultaneously as a part of this
18
Agreement, a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible, and the parties
hereto request the court or any arbitrator to whom disputes relating to this
Agreement are submitted to reform the otherwise illegal, invalid or
unenforceable provision in accordance with this Section 9(j).
------------
(k) 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 such subject
matter.
(l) Survival. This Agreement and the rights and obligations of the parties
---------
hereunder shall survive only so long as there continue to exist Registrable
Securities hereunder; provided that the rights and obligations contained in
Sections 6 and 7 shall continue forever.
----------------
19
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
"COMPANY" AMERICAN OFFICE PARK PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXXX, XX.
--------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
PUBLIC STORAGE, INC., as to the obligations set forth
in Section 2(e) hereof
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
(Signatures continue on next page)
20
"AGENT INVESTORS" ABKB/LA SALLE SECURITIES LIMITED
PARTNERSHIP
By: /s/ XXXXXXX X. XXXXXX, XX.
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Managing Director
XXXXX & STEERS CAPITAL MANAGEMENT, INC.
By: /s/ XXXXXX XXXXX
----------------------------------
Name: Xxxxxx Xxxxx
Title: President
XXXXXX XXXXXXX ASSET MANAGEMENT
By: /s/ XXXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Principal
"DIRECT INVESTORS" HARVARD PRIVATE CAPITAL REALTY, INC.
By: ABKB/LaSalle Securities Limited
Partnership, as Agent
By: /s/ XXXXXXX X. XXXXXX, XX.
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Managing Director
THE BOARD OF TRUSTEES OF THE XXXXXX
XXXXXXXX JUNIOR UNIVERSITY
By: /s/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx
Title: Director of Real Estate Investments
(Signatures continue on next page)
21
STATE OF MICHIGAN RETIREMENT SYSTEMS
By: /s/ XXXXXXX X. XXX XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxx Xxxxxx
Title: Administrator
"FIDELITY ENTITIES" THE FIDELITY REIT COLLECTIVE POOL
By: Fidelity Management Trust Company,
as Trustee of the Fidelity Group Trust
for Employee Benefits Plans
By: /s/ XXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
STATE EMPLOYEES' RETIREMENT FUND
OF THE STATE OF DELAWARE
By: Fidelity Management Trust Company,
as Investment Manager and Not Individually
By: /s/ XXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
X.X. XXXXXXXXX FAMILY FOUNDATION
By: Fidelity Management Trust Company,
as Investment Manager and Not Individually
By: /s/ XXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
(Signatures continue on following page)
22
FIDELITY REAL ESTATE INVESTMENT
PORTFOLIO
By: /s/ XXXXX X. XXXXXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Representative Capacity.
-----------------------
Fidelity Real Estate Investment Portfolio (the "Fund") hereby gives notice
to the parties to this Agreement (the "Parties") that the Fund is a portfolio of
the Fidelity Devonshire Trust (the "Trust"), which is a Massachusetts business
trust, and that a copy of the Trust's Declaration of Trust is on file with the
Secretary of the Commonwealth of Massachusetts. Each of the Parties hereto
acknowledges and agrees that this Agreement is not executed on behalf of the
trustees of the Trust as individuals, and the obligations of the Fund under this
Agreement are not binding upon any of the trustees, officers or shareholders of
the Trust individually or upon any portfolio or assets of the Trust except the
assets and property of the Fund.
23
EXHIBIT A
TO
REGISTRATION RIGHTS AGREEMENT
Registration Rights Granted
---------------------------
24
