REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
THIS REGISTRATION RIGHTS AGREEMENT, dated as of November 26, 1997, is entered into by and
among AMB Property Corporation, a Maryland corporation (the “Company” or the “REIT”), AMB Property,
L.P., a Delaware limited partnership (the “Operating Partnership”), and the unit holders whose
names are set forth on the signature pages hereto (each, a “Unit Holder” and collectively, the
“Unit Holders”).
RECITALS
WHEREAS, in connection with the initial public offering of shares of the Company’s common
stock, par value $.01 per share (the “Common Stock”), the Company, the Operating Partnership and
the Unit Holders as the parties which hold ownership interests in certain industrial properties,
retail properties and other assets (the “Properties”) will engage in certain formation transactions
whereby the Unit Holders will contribute to the Operating Partnership their interests in the
Properties;
WHEREAS, the Unit Holders will receive units of limited partnership interests (“OP Units”) in
the Operating Partnership in exchange for their respective interests in the Properties and the
Company will be the general partner of the Operating Partnership;
WHEREAS, pursuant to the Partnership Agreement (as defined below), OP Units owned by the Unit
Holders will be redeemable for cash or exchangeable for shares of Common Stock of the Company upon
the terms and subject to the conditions contained therein; and
WHEREAS, the Unit Holders are willing to contribute their respective interests in the
Properties in consideration of receiving the registration rights provided for in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained,
and for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
SECTION 1.1. Definitions. In addition to the definitions set forth above, the
following terms, as used herein, have the following meanings:
“Affiliate” of any Person means any other Person directly or indirectly controlling or
controlled by or under common control with such Person. For the purposes of this definition,
“control” when used with respect to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.
“Agreement” means this Registration Rights Agreement, as it may be amended, supplemented or
restated from time to time.
“Articles of Incorporation” means the Articles of Incorporation of the Company as filed with
the Secretary of State of the State of Maryland on November 24, 1997, as the same may be amended,
modified or restated from time to time.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks
in New York, New York or San Francisco, California are authorized by law to close.
“Code” means the Internal Revenue Code of 1986, as amended from time to time or any successor
statute thereto, as interpreted by the applicable regulations thereunder.
“Commission” means the Securities and Exchange Commission.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchangeable OP Units” means OP Units which may be redeemable for cash or exchangeable for
Common Stock pursuant to Section 8.6 of the Partnership Agreement (without regard to any
limitations on the exercise of such exchange right as a result of the Ownership Limit Provisions,
as defined below).
“General Partner” means the Company or its successors as general partner of the Operating
Partnership.
“Holder” means any Unit Holder who is the record or beneficial owner of any Registrable
Security or any assignee or transferee of such Registrable Security (including assignments or
transfers of Registrable Securities to such assignees or transferees as a result of the foreclosure
on any loans secured by such Registrable Securities) unless such Registrable Security is acquired
in a public distribution pursuant to a registration statement under the Securities Act or pursuant
to transactions exempt from registration under the Securities Act, in each such case where
securities sold in such transaction may be resold without subsequent registration under the
Securities Act.
“Incapacitated” shall have the meaning set forth in the Partnership Agreement.
“Initial Public Offering” means the offering of the Company’s Common Stock pursuant to the
Form S-11 Registration Statement (No. 333-35915) filed by the Company with the Commission under the
Securities Act.
“Ownership Limit Provisions” mean the various provisions of the Articles of Incorporation set
forth in Article IV thereof restricting the ownership of Common Stock by certain Persons to
specified percentages of the outstanding Common Stock.
“Partnership Agreement” means the amended and restated agreement of limited partnership of the
Operating Partnership dated as of November 21, 1997, as the same may be amended, modified or
restated from time to time.
“Person” means an individual or a corporation, partnership, limited liability company,
association, trust, or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“REIT”
means a real estate investment trust under Section 856 through Section 860 of the
Code.
“Registrable Securities” means shares of Common Stock of the Company at any time owned, either
of record or beneficially, by any Holder issued upon exchange of Exchangeable OP Units until (i) a
registration statement covering such securities has been declared effective by the Commission and
such shares have been sold or transferred pursuant to such effective registration statement, (ii)
such shares are sold under circumstances in which all of the applicable conditions of Rule 144 are
met or under which such shares may be sold pursuant to Rule 144(k) under the Securities Act or
(iii) such shares have been otherwise transferred in a transaction that would constitute a sale
thereof under the Securities Act, the Company has delivered a new certificate or other evidence of
ownership for such shares not bearing the Securities Act restricted stock legend and such shares
may be resold without subsequent registration under the Securities Act.
“Rule 144” means Rule 144 under the Securities Act, as amended from time to time (or any
successor statute).
“Securities Act” means the Securities Act of 1933, as amended.
“Selling Holder” means a Holder who is selling Registrable Securities pursuant to a
registration statement under the Securities Act pursuant to this Agreement.
“Underwriter” means a securities dealer who purchases any Registrable Securities as principal
and not as part of such dealer’s market-making activities.
ARTICLE II
REGISTRATION RIGHTS
REGISTRATION RIGHTS
SECTION 2.1. Shelf Registration. The Company shall prepare and file, and use its
reasonable efforts to cause to become effective, on or as soon as practicable after the first
anniversary of the date that the Common Stock is first offered to the public in the Initial Public
Offering (the “IPO Date”) a “shelf” registration statement with respect to shares of Common Stock
issuable upon the exchange of Exchangeable OP Units covering the issuance by the Company and the
resale thereof by the Holders on an appropriate form for an offering to be made on a continuous
basis pursuant to Rule 415 under the Securities Act (the “Shelf Registration Statement”) and shall
use its best efforts to cause the Shelf Registration Statement to be declared effective on or as
soon as practicable after such first anniversary, and to keep such Shelf Registration Statement
continuously effective for a period ending when all Registrable Securities covered by the Shelf
Registration Statement have been issued and resold.
SECTION 2.2. Limitation on Resales. Notwithstanding anything contained herein, prior
to the date upon which shares of Common Stock issued as of the IPO Date would be eligible for
resale under Rule 144(k) under the Securities Act, as such Rule may be amended
from time to time (or any similar rule or regulation hereafter adopted by the Commission),
each holder agrees to limit resales of Registrable Securities under a Shelf Registration Statement,
to the number of shares of Registrable Securities which otherwise would be eligible for resale by
such Selling Stockholder pursuant to Rule 144, assuming such Registrable Securities were issued as
of the IPO Date.
SECTION 2.3. Registration Procedures; Filings; Information. In connection with any
Shelf Registration Statement under Section 2.1 hereof, the Company will use its best efforts to
effect the registration and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file with the Commission a
registration statement on any form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for the sale of the Registrable
Securities to be registered thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed registration statement to become and remain
effective for a period of not less than 180 days or in the case of a Shelf Registration Statement
as provided in Section 2.1 hereof.
(b) The Company will, if requested, prior to filing a registration statement or prospectus or
any amendment or supplement thereto, furnish to each Selling Holder 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, one conformed copy of
such registration statement, each amendment thereof and supplement thereto (in each case including
all exhibits thereto and documents incorporated by reference therein; provided, that each such
exhibit need only be provided once), and such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus) and such other documents as such
Selling Holder 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 such registration statement of any stop order
issued or threatened by the Commission and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable
Securities under such other securities or blue sky laws of such jurisdictions in the United States
(where an exemption is not available) as any Selling Holder or managing Underwriter or
Underwriters, if any, reasonably (in light of such Selling Holder’s intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the business and operations
of the Company and do any and all other acts and things that may be reasonably necessary or
advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities
owned by such Selling Holder; provided that the Company will not
be required to (A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any
such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(e) The Company will promptly notify each Selling Holder of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under the Securities Act,
of the occurrence of an event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances then existing, not misleading and promptly make available to each Selling Holder a
reasonable number of copies of any such supplement or amendment.
(f) The Company will enter into customary agreements (including an underwriting agreement, if
any, in customary form) and take such other actions as are reasonably required in order to expedite
or facilitate the disposition of such Registrable Securities.
(g) The Company will make available for inspection by any Selling Holder of 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 exercise their due diligence responsibility, and cause the Company’s
officers, directors and employees to supply all information reasonably requested by any Inspectors
in connection with such registration statement. Records which the Company determines, in good
faith, to be confidential and which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction.
Each Selling Holder of such Registrable Securities agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by it as the basis
for any market transactions in the securities of the Company or its Affiliates or otherwise
disclosed by it unless and until such is made generally available to the public. Each Selling
Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the Company and allow
the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential.
(h) The Company will otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission, and make available to its securityholders, as soon as reasonably
practicable, an earnings statement covering a period of twelve (12) months, beginning within three
(3) months after the effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder (or any successor rule or regulation hereafter adopted by the Commission).
(i) The Company will use its best efforts to cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the Company are then
listed.
The Company may require, as a condition precedent to the obligations of the Company under the
Agreement, each Selling Holder of Registrable Securities to promptly furnish in writing to the
Company such information regarding such selling Holder, the Registrable Securities held by it and
the intended method of distribution of the Registrable Securities as the Company may from time to
time reasonably request and such other information as may be legally required in connection with
such registration.
Each Selling Holder agrees that, upon receipt of any notice from the Company of, or such
Selling Holder obtains knowledge of, the happening of any event of the kind described in Section
2.3(e) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement and prospectus covering such Registrable Securities until
such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated
by Section 2.3(e) hereof, and, if so directed by the Company, such Selling Holder will deliver to
the Company all copies, other than permanent file copies then in such Selling Holder’s possession,
of the most recent prospectus and each amendment thereof and supplement thereto covering such
Registrable Securities at the time of receipt of such notice. Each Selling Holder of Registrable
Securities agrees that it will immediately notify the Company at any time when a prospectus
relating to the registration of such Registrable Securities is required to be delivered under the
Securities Act of the happening of an event known to such Selling Holder as a result of which
information previously furnished by such Selling Holder to the Company in writing for inclusion in
such prospectus contains an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. In the event the Company shall give such
notice, the Company shall extend the period during which such registration statement shall be
maintained effective (including the period referred to in Section 2.3(a) hereof) by the number of
days during the period from and including the date of the giving of notice pursuant to Section
2.3(e) hereof to the date when the Company shall make available to the Selling Holders of
Registrable Securities covered by such registration statement a prospectus supplemented or amended
to conform with the requirements of Section 2.3(e) hereof.
SECTION 2.4. 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 hereunder (the “Registration Expenses”): (i) all registration
and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) printing expenses, (iv) internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing legal or accounting
duties), (v) the fees and expenses incurred in connection with the listing of the Registrable
Securities on each securities exchange on which similar securities issued by the Company are then
listed, (vi) reasonable fees and disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by the Company and (vii) the
reasonable fees and expenses of any special experts retained by the
Company in connection with such registration. The Company shall have no obligation to pay any
underwriting fees, discounts or commissions attributable to the sale of Registrable Securities, or
any out-of-pocket expenses of the Holders (or the agents who manage their accounts) or any transfer
taxes relating to the registration or sale of the Registrable Securities.
SECTION 2.5. Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Selling Holder of Registrable Securities, its officers, directors and agents,
and each Person, if any, who controls such Selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or prospectus relating to the Registrable Securities
(as amended or supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing to the Company by
such Selling Holder or on such Selling Holder’s behalf expressly for inclusion therein. The
Company also agrees to indemnify any 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 Selling Holders provided in this Section 2.5, provided that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter of the Registrable Securities from whom the person asserting any such losses, claims,
damages or liabilities purchased the Registrable Securities which are the subject thereof if such
person did not receive a copy of the prospectus (or the prospectus as supplemented) at or prior to
the confirmation of the sale of such Registrable Securities to such person in any case where such
delivery is required by the Securities Act and the untrue statement or omission of a material fact
contained in such preliminary prospectus was corrected in the prospectus (or the prospectus as
supplemented).
SECTION 2.6. Indemnification by Holders of Registrable Securities. Each Selling
Holder agrees, severally but not jointly, to indemnify and hold harmless the Company, its officers,
directors and agents and each Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Selling Holder, but only with respect to information
relating to such Selling Holder furnished in writing by such Selling Holder or on such Selling
Holder’s behalf expressly for use in any registration statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto, or any preliminary prospectus. In
case any action or proceeding shall be brought against the Company or its officers, directors or
agents or any such controlling person, in respect of which indemnity may be sought against such
Selling Holder, such Selling Holder shall have the rights and duties given to the Company, and the
Company or its officers, directors or agents or such controlling person shall have the rights and
duties given to such Selling Holder, by Section 2.5 hereof. Each Selling 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 2.6.
SECTION 2.7. Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Sections 2.5 or 2.6 hereof, such person (an “Indemnified
Party”) shall promptly notify the person against whom such indemnity may be sought (an
“Indemnifying Party”) in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified Party, and shall
assume the payment of all fees and expenses. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall
have mutually agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnified Party and the
Indemnifying Party and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for all such Indemnified Parties, and that
all such fees and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Indemnified Parties, such firm shall be designated in writing by (i) in the
case of Persons indemnified pursuant to Section 2.5 hereof, by the Selling Holders which owned a
majority of the Registrable Securities sold under the applicable registration statement and (ii) in
the case of Persons indemnified pursuant to Section 2.6 hereof, the Company. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent, or if there be a final judgment for the plaintiff, the
Indemnifying Party shall indemnify and hold harmless such Indemnified Parties from and against any
loss or liability (to the extent stated above) by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an
Indemnifying Party to reimburse the Indemnified Party for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than thirty (30) Business Days after receipt by such Indemnifying
Party of the aforesaid request and (ii) such Indemnifying Party shall not have reimbursed the
Indemnified Party in accordance with such request prior to the date of such settlement. No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from all liability arising
out of such proceeding.
SECTION 2.8. Contribution. If the indemnification provided for in Sections 2.5 or
2.6 hereof is unavailable to an Indemnified Party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (i) as between the
Company and the Selling Holders on the one hand and the Underwriters on the other, in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Holders on the one hand and the Underwriters on the other from the offering of the
securities, or if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative fault of the Company
and the Selling Holders on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations and (ii) 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 benefits received by the Company and the Selling Holders on
the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Selling Holders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set forth in the table on
the cover page of the prospectus. The relative fault of the Company and the Selling Holders on the
one hand and of the Underwriters 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 and the
Selling Holders or by the Underwriters. The relative fault of the Company on the one hand and of
each Selling Holder on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or such Selling Holder, and
the Company’s and the Selling Holder’s relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and equitable if
contribution pursuant to this Section 2.8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in Sections 2.5 and 2.6 hereof shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 2.8, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and 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. The Selling Holder’s
obligations to contribute pursuant to this Section 2.8 are several in the
proportion that the proceeds of the offering received by such Selling Holder bears to the
total proceeds of the offering received by all the Selling Holders and not joint.
SECTION 2.9. Participation in Underwritten Registrations. No Person may participate
in any underwritten registration hereunder unless such Person (a) 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 (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents in customary form and reasonably
required under the terms of such underwriting arrangements and these registration rights provided
for in this Article II.
SECTION 2.10. Rule 144. The Company covenants that it will file any reports required
to be filed by it under the Securities Act and the Exchange Act and that it will take such further
action as any Holder may reasonably request, all to the extent required from time to time to enable
Holders to sell Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, the Company will deliver to
such Holder a written statement as to whether it has complied with such requirements.
SECTION 2.11. Holdback Agreements.
(a) If the Company determines in its good faith judgment that the filing of the Shelf
Registration Statement under Section 2.1 hereof or the use of any related prospectus would require
the disclosure of non-public material information that the Company has a bona fide business purpose
for preserving as confidential or the disclosure of which would impede the Company’s ability to
consummate a material transaction, and that the Company is not otherwise required by applicable
securities laws or regulations to disclose, upon written notice of such determination by the
Company, the rights of the Holders to offer, sell or distribute any Registrable Securities pursuant
to the Shelf Registration Statement or to require the Company to take action with respect to the
registration or sale of any Registrable Securities pursuant to the Shelf Registration Statement
shall be suspended until the earlier of (i) the date upon which the Company notifies the Holders in
writing that suspension of such rights for the grounds set forth in this Section 2.11(b) is no
longer necessary and (ii) 180 days. The Company agrees to give such notice as promptly as
practicable following the date that such suspension of rights is no longer necessary.
(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 Act, upon written notice thereof by the Company to the
Holders, the rights of the Holders to offer, sell or distribute any Registrable Securities pursuant
to the Shelf Registration Statement or to require the Company to take action with respect to the
registration or sale of any Registrable Securities pursuant to the Shelf Registration Statement
shall be suspended until the date on which the Company has filed such reports or obtained and filed
the financial information required by Rule 3-05 or Article 11 of Regulation S-X to be included or
incorporated by reference, as applicable, in the Shelf
Registration Statement, and the Company shall notify the Holders as promptly as practicable
when such suspension is no longer required.
ARTICLE III
MISCELLANEOUS
MISCELLANEOUS
SECTION 3.1. New York Stock Exchange Listing. In the event that the Company shall
issue any Common Stock in exchange for OP Units pursuant to Section 8.6 of the Partnership
Agreement, then in any such case the Company agrees to cause any such shares of Common Stock to be
listed on the New York Stock Exchange (or, if the Common Stock is not then listed on the New York
Stock Exchange, such other national securities exchange or quotation service upon which such shares
are then listed or quoted) prior to or concurrently with the issuance thereof by the Company.
SECTION 3.2. Remedies. In addition to being entitled to exercise all rights provided
herein and granted by law, including recovery of damages, the Holders shall be entitled to specific
performance of the rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
SECTION 3.3. Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given without the prior written consent of the
Company and the Holders or any such Holder’s representative if any such Holder is Incapacitated.
No failure or delay by any party to insist upon the strict performance of any covenant, duty,
agreement or condition of this Agreement or to exercise any right or remedy consequent upon any
breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement
or condition.
SECTION 3.4. Notices. All notices and other communications in connection with this
Agreement shall be made in writing by hand delivery, registered first-class mail, telex,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to any Unit Holder, initially c/o AMB Property Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 (Attention: President and Chief Executive Officer), or to such other
address and to such other Persons as the Unit Holders may hereafter specify in writing; and
(2) if to the Company, initially at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(Attention: President and Chief Executive Officer), or to such other address as the Company may
hereafter specify in writing.
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; when received if deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and
on the next business day, if timely delivered to an air courier guaranteeing overnight delivery.
SECTION 3.5. Successors and Assigns. Except as expressly provided in this Agreement,
the rights and obligations of the Holders under this Agreement shall not be assignable by any
Holder to any Person that is not a Holder. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns.
SECTION 3.6. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Each party shall become bound by this Agreement immediately upon affixing its signature
hereto.
SECTION 3.7. 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 choice of law
provisions thereof.
SECTION 3.8. 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 3.9. Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
SECTION 3.10. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 3.11. No Third Party Beneficiaries. Nothing express or implied herein is
intended or shall be construed to confer upon any person or entity, other than the parties hereto
and their respective successors and assigns, any rights, remedies or other benefits under or by
reason of this Agreement.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| AMB PROPERTY CORPORATION, a Maryland corporation |
||||
| By: | /s/ X. Xxxxx Xxxxxxxxx | |||
| X. Xxxxx Xxxxxxxxx | ||||
| Managing Director, General Counsel, Chief Financial Officer and Secretary |
||||
| AMB PROPERTY, L.P., a Delaware limited partnership |
||||
| By: | AMB Property Corporation, | |||
| its general partner | ||||
| By: | /s/ X. Xxxxx Xxxxxxxxx | |||
| X. Xxxxx Xxxxxxxxx | ||||
| Managing Director, General Counsel, Chief Financial Officer and Secretary |
||||
| UNIT HOLDERS FIRST ALLMERICA LIFE INSURANCE COMPANY XXXXXX X. XXXXXX XXXXXX X. XXXXXX XXXXXXXX X. XXXXXXX 1954 TRUST XXXXXXX X. XXXXXXX 1954 TRUST XXXXXXXXX X. XXXXXXX 1954 TRUST XXXXXXXX X. XXXXXXX 1957 TRUST XXXXXXX X. XXXXXXX 1957 TRUST XXXXXXXXX X. XXXXXXX 1957 TRUST XXXXXXXX X. XXXXXXX 1958 TRUST XXXXXXX X. XXXXXXX 1958 TRUST XXXXXXXXX X. XXXXXXX 1958 TRUST XXXXX X. XXXXX THE XXXXXX 1982 REVOCABLE TRUST DATED APRIL 21, 1982 XXXXXX X. XXXXXX GP MET PHASE I 95, LTD. GP MET 4/12, LTD. |
||||
| By: | /s/ X. Xxxxx Xxxxxxxxx | |||
| X. Xxxxx Xxxxxxxxx | ||||
| Attorney-In-Fact | ||||
