EXHIBIT G
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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is made and
entered into as of September 30, 1997, by and between Meridian Industrial Trust,
Inc., a Maryland corporation (the "Company"), and State Street Bank and Trust
Company, as Trustee for Ameritech Pension Trust (the "Investor").
RECITALS:
A. Pursuant to the terms of that certain Agreement of Purchase and Sale
and Joint Escrow Instructions among the Company, the Investor and Chicago Title
Insurance Company (the "Purchase Agreement"), it is a condition to the
obligations of the Investor thereunder that the Company grant certain
registration rights to the Investor with respect to the shares of common stock,
par value $.001 per share ("Common Stock"), of the Company to be received by the
Investor.
B. Pursuant to the terms of the Purchase Agreement it is a condition to
the obligations of the Company thereunder that the Investor agrees to certain
restrictions set forth herein with respect to the disposition of the Common
Stock to be received by the Investor pursuant to the Purchase Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Affiliate: A Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with a
specified Person.
Common Stock: The common stock, par value $.001 per share, of the
Company.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
Investor: See the first paragraph of this Agreement.
Person: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Priority Securities: Shares of Common Stock subject to the terms of
the 1996 Investor Rights Agreement.
Prospectus: The prospectus included in any Registration Statement, as
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.
Prudential: The Prudential Insurance Company of America.
Prudential Purchase Agreements: The Amended and Restated Stock
Purchase Agreement dated as of June 12, 1997, by and between the Company and
Prudential; (b) the Stock Purchase Agreement dated as of June 12, 1997, by and
between the Company and Prudential, on behalf of a single client insurance
company separate account contained in Group Annuity Contract No. GA-9032; (c)
the Stock Purchase Agreement dated as of June 12, 1997, by and between the
Company and Strategic Performance Fund-II, Inc., a Maryland corporation; and (d)
the Stock Purchase Agreement dated as of June 12, 1997, by and between the
Company and The Prudential Variable Contract Real Property Partnership.
Prudential Purchasers: Prudential, Prudential, on behalf of a single
client insurance company separate account contained in Group Annuity Contract
No. GA-9032, Strategic Performance Fund-II, Inc., a Maryland corporation, and
The Prudential Variable Contract Real Property Partnership.
Purchase Agreement: See the recitals to this Agreement.
Registrable Securities: (a) The shares of Common Stock received by
the Investor pursuant to the terms of the Purchase Agreement, for the purposes
of the Shelf Registration provided for under Section 2(a) only, the Prudential
Shares, and notwithstanding the provisions of the 1996 Investor Rights
Agreement, any other shares of Common Stock acquired by the Investor (or for the
purposes the Shelf Registration provided for under Section 2(a) only, the
Prudential Purchasers) subsequent to the date hereof (except for any shares of
Common Stock issued upon the conversion of Series B Preferred Stock of the
Company), and, notwithstanding the provisions of the 1996 Investor Rights
Agreement, any other shares of Common Stock acquired by an Investor subsequent
to the date hereof (except for any shares of Common Stock issued upon the
conversion of Series B Preferred Stock of the Company) and (b) any securities
issued or issuable with respect to the shares of Common Stock referred to in the
foregoing clause (a) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. 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 144 (or any similar provisions then in force) under the
Securities Act are met, or (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 without subsequent registration under the Securities Act.
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Registration Expenses: See Section 5 hereof.
Registration Statement: The Registration Statement of the Company
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.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
1996 Investor Rights Agreement: That certain Amended and Restated
Investor Rights Agreement dated February 23, 1996, among the Company and the
stockholders of the Company named therein.
2. Registration Rights.
a. Shelf Registration. At any time prior to December 24, 1997, the
Company shall file with the SEC, and shall use its best efforts to cause to
become effective by the ninety first (91st) day after the date hereof, a
dedicated "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") for all of the then Registrable Securities of the
Investor and the Prudential Purchasers.
The Company shall use its best efforts to keep the Shelf Registration
continuously effective, and to prevent the happening of any event of the kind
described in Sections 4(c)(3), (4) or (5) hereof that requires the Company to
give notice pursuant to the last paragraph of Section 4 hereof, for a period
terminating the earlier of (i) the fifth anniversary of the date on which the
SEC declares the Shelf Registration effective and (ii) on the date on which all
the Registrable Securities covered by the Shelf Registration have been sold
pursuant to such Shelf Registration. The Company shall only be obligated to file
one Shelf Registration pursuant to the terms hereof.
The Company further agrees to 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 requested by the holders of a majority of the Registrable Securities
covered by such registration or any underwriter of the Registrable Securities.
One or more offerings of Registrable Securities pursuant to the Shelf
Registration may be in the form of Underwritten Offerings at the election of the
holders of Registrable Securities being offered, provided that the Registerable
Securities to be included in any such Underwritten Offering shall have a fair
market value (as defined in Section 2(b)) of at least $20 million. If the
Company receives notice from the Investor or the Prudential Purchasers of such
an Underwritten
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Offering, it shall notify the Investor and/or the Prudential Purchasers thereof,
and the Investor and/or the Prudential Purchasers shall have the right to
participate in such Underwritten Offering by promptly notifying the Company of
their election to do so. If the managing underwriter or underwriters of such
offering advise the Company and the holders of Registrable Securities in writing
that in their opinion the number of shares of Registrable Securities requested
to be included in any such offering is sufficiently large to materially and
adversely affect the success of such offering, the Company will include in any
offering 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 and the amount to be offered for the accounts of all of such
holders shall be reduced pro rata (according to the Registrable Securities
beneficially owned by such holders) 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. The Company shall use its best
efforts to amend the 1996 Investor Rights Agreement to provide that no other
party, including the Company, shall be permitted to offer securities in any such
offering. No election that an offering under this Section 2(a) shall be an
Underwritten Offering shall be made within 120 days after the closing date of an
Underwritten Offering; provided that with respect to the Investor, no election
that an offering under this Section 2(a) shall be an Underwritten Offering shall
be made within 30 days after the closing date of an Underwritten Offering
occurring prior to the earlier of (i) the date that is 210 days following the
closing date of the Group B or Group C properties under the Purchase Agreement
between Ameritech and the Company, or (ii) June 1, 1998 (such earlier date, the
"Cutoff Date").
Until the termination of the Shelf Registration, the Investor shall be
permitted to offer and sell a maximum of 30% of its Registrable Securities held
on the date hereof pursuant to the Shelf Registration during any 180 day period;
provided that such limitation shall not apply to any Registrable Securities
offered or sold by the Investor pursuant to one or more Underwritten Offerings,
block trades made by the Investor from time to time involving 25,000 shares or
more, or any offer or sale not involving the Shelf Registration.
b. Demand Registration.
At any time after ninety (90) days from the date hereof, the Investor
may make up to three written requests, each (a "Demand Notice") for registration
under the Securities Act (a "Demand Registration") of all or a portion of the
Registrable Securities held by the Investor, subject to the right to reinstate a
Demand Registration set forth herein; provided, however, that the number of
shares of Registrable Securities requested to be registered (i) shall be greater
than 1% of the shares of Common Stock outstanding and (ii) shall have a "fair
market value" (determined pursuant to the next sentence) in excess of
$1,000,000. For purposes of this Agreement, fair market value of the Registrable
Securities shall be determined as follows: (i) if the security is listed on any
established stock exchange or a national market system, including, without
limitation, the National Market System of the National Association of Securities
Dealers Automated Quotation System, its fair market value shall be the closing
sales price or the closing bid if no sales were reported, as quoted on such
system or exchange (or the largest such exchange) on the date of the Demand
Notice (or if there are no sales or bids for such date, then for the last
preceding business day for such sales or bids), as reported in The Wall Street
Journal or similar publication; (ii) if the security is regularly quoted by a
recognized securities dealer but selling prices are not reported, its fair
market value shall be the mean between the high bid and low asked prices for the
security on the date of the Demand
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Notice (or if there are no quoted prices for such date, then for the last
preceding business day on which there were quoted prices); or (iii) in the
absence of an established market for the security, the fair market value shall
be determined in good faith by the Company's Board of Directors, with reference
to the Company's net worth, prospective earning power, dividend-paying capacity
and other relevant factors, including the goodwill of the Company, the economic
outlook in the Company's industry, the Company's position in the industry and
its management and the values of stock of other corporations in the same or a
similar line of business (all of such factors determined as of the date of the
Demand Notice).
Within ten days after receipt of each Demand Notice, the Company shall
give written notice of such registration request to all non-requesting holders
of Registrable Securities and shall, subject to the provisions of the following
paragraph, include in such registration all Registrable Securities with respect
to which the Company received written requests for inclusion therein within 15
days after the receipt of the notice of such Demand Registration request by the
applicable holder. Both the Demand Notice and any request to have Registrable
Securities included in a Demand Registration shall specify the number of shares
of Registrable Securities proposed to be sold and shall also specify the
intended method of disposition thereof. A registration requested pursuant to
this Section 2(b) will not be deemed to have been effected unless the
Registration Statement relating thereto has become effective under the
Securities Act; provided, however, that if, after such Registration Statement
has become 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 the demanding
Investor's right to request a Demand Registration hereunder shall be reinstated.
The Investor may, at any time prior to the effective date of the Registration
Statement relating to such registration, revoke such request with respect to
their Registrable Securities by providing a written notice to the Company
revoking such request and the Investor's right to request a Demand Registration
hereunder shall be reinstated.
If the Investor so elects, the offering of Registrable Securities
pursuant to a Demand Registration shall be in the form of an Underwritten
Offering and such Investor shall have the right to designate the underwriters
and the managing underwriter, subject to approval of the Company, which approval
shall not be unreasonably withheld or delayed. If the managing underwriter or
underwriters of such offering advise the Company and the holders of Registrable
Securities 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 and the Registrable Securities to be
included in such registration shall be allocated, (i) first to the Investor
making such demand, (ii) second among the holders of the Priority Securities
(that have requested inclusion of the Priority Securities beneficially owned by
such holders) 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, (iii) third among the other holders of Registrable
Securities (that have requested inclusion of their Registrable Securities in
such registration), and any other holders of registration rights in respect of
securities of the Company in accordance with the terms of the agreements
granting such rights, pro rata (according to the Registrable Securities or other
securities, as applicable, beneficially owned by such holders) to the extent
necessary to reduce the total amount of securities to be included in such
offering to the
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amount recommended by such managing underwriter or underwriters, and (iv)
fourth, among the Company and any other holders of registration rights in
respect of securities of the Company that by their terms are subordinate to the
rights of the security holders referred to in clause (iii) above in accordance
with the terms of the agreements granting such rights. The Investor shall not be
entitled to effect a Demand Notice under this Section 2(b) within 120 days after
the closing date of an Underwritten Offering; provided that with respect to
Ameritech, no election that an offering under this Section 2(b) shall be an
Underwritten Offering shall be made within 30 days after the closing date of an
Underwritten Offering occurring prior to the Cutoff Date.
No registration pursuant to a request or requests referred to in this
subsection 2(b) shall be deemed to be a Shelf Registration.
c. Incidental Registration. If the Company proposes to file a
registration statement under the Securities Act (other than in
connection with the Shelf Registration, a Demand Registration, a
Registration Statement on Form S-4 or S-8 or any form substituting
therefor, or a shelf registration statement on Form S-3 or any form
substituting therefor relating to (i) issuances of securities other
than Common Stock (or securities convertible into Common Stock) by the
Company for cash, or (ii) so long as the Shelf Registration remains
effective, resales of equity securities of the Company by one or more
security holders of the Company pursuant to Rule 415 under the
Securities Act) 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, then the Company shall give written notice of such
proposed filing to the holders of the Registrable Securities as soon
as practicable (but in no event less than thirty (30) days before the
anticipated filing date), and such notice shall offer such holders the
opportunity to register such number of Registrable Securities as each
such holder may request. Each holder of Registrable Securities
desiring to have its Registrable Securities registered under this
Section 2(c) shall so advise the Company in writing within fifteen
(15) days after the date of receipt of such notice from the Company
(which request shall set forth 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 best 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 underwriters of such offering deliver a written opinion
to the holders of such Registrable Securities that the total number of
securities that the Company, the holders of Registrable Securities, or
such other persons propose to include in such offering is such that
the success of the offering would be materially and adversely affected
by inclusion of the securities requested to be included, then the
amount of securities to be offered for the accounts of the Company,
the holders of Registrable Securities and other holders registering
securities pursuant to registration rights shall be allocated as
follows:
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(i) if such registration has been initiated by the Company as a
primary offering, first to the securities sought to be included
by the Company, second to the Priority Securities sought to be
included by the holders thereof, and third to the Registrable
Securities sought to be included by the holders thereof and the
securities sought to be included by other holders of
registration rights, pro rata, on the basis of the number of
securities owned by each such holder, and fourth the securities
sought to be included by other holders of registration rights
that by their terms are subordinate to the registration rights
of the security holders referred to in the immediately preceding
clause, pro rata, on the basis of the number of securities owned
by each such holder; and
(ii) if such registration has been initiated by another holder of
registration rights (other than pursuant to Section 2(b)
hereof), first to the securities sought to be included by such
demanding holder, second to the Priority Securities sought to be
included by the holders thereof, third to the Registrable
Securities sought to be included by the holders thereof and to
all other securities sought to be included by other holders of
registration rights, pro rata, on the basis of the number of
securities owned by each such holder, and fourth to the
securities sought to be included by the Company among the
Company and any other holders of registration rights in respect
of securities of the Company that by their terms are subordinate
to the rights of the security holders referred to in priority
third above in accordance with the terms of the agreements
granting such rights.
If the number of Registrable Securities sought to be registered
pursuant to this Section 2(c) by a holder of Registrable Securities is reduced
as provided above, such holder shall have the right to withdraw such holder's
request for registration with respect to all of the Registrable Securities
initially sought to be registered.
No registration pursuant to a request or requests referred to in this
Section 2(c) shall be deemed to be a Shelf Registration or a Demand
Registration.
3. Hold-Back Agreements.
a. Restrictions on Public Sale by Holder of Registrable Securities.
Each holder of Registrable Securities agrees, if requested in writing
by the managing underwriters in an Underwritten Offering, not to
effect any public sale or distribution of Registrable Securities of
the Company of the same class as the securities included in the
applicable registration statement, including a sale pursuant to Rule
144 under the Securities Act (except as part of such Underwritten
Offering or if, prior to receiving such request, such holder has given
a Demand Notice or a notice of commencement of a public sale or
distribution pursuant to the Shelf Registration), during the ten (10)
day period prior to the filing of the registration statement with
respect to such Underwritten Offering, and during the ninety (90) day
period beginning on the effective date of the registration statement
with respect to such Underwritten Offering, to the extent timely
notified in writing by the Company or the managing underwriters, or,
in the case of a shelf offering, the date of commencement of a public
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distribution of Registrable Securities pursuant to such registration
statement, as applicable. Notwithstanding the foregoing, if requested
in writing by the managing underwriters in an Underwritten Offering
that closes prior to the Cutoff Date, Ameritech shall not effect any
public sale or distribution of Registrable Securities of the Company
of the same class as the securities included in the applicable
registration statement, including a sale pursuant to Rule 144 under
the Securities Act, during the ten (10) day period prior to the filing
of the registration statement with respect to such Underwritten
Offering, and during the thirty (30) day period beginning on the
closing date of the Underwritten Offering.
b. Restrictions on Sale of Securities by the Company. The Company
agrees not to effect 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 (10) days prior to the
filing of a registration statement with respect to an Underwritten
Offering, and during the ninety (90) day period beginning on the
effective date of the applicable Registration Statement (except as
part of such registration statement (x) where the holders of a
majority of the shares of Registrable Securities to be included in
such Registration Statement consent or (y) where holders of
Registrable Securities are participating in such registration
statement pursuant to Section 2(c) hereof, such registration statement
was filed by the Company with respect to the sale of securities by the
Company, and no holder is simultaneously participating in a
distribution pursuant to a Registration Statement filed by the Company
pursuant to Section 2(b) hereof) or, in the case of a shelf offering,
the date of commencement of a public distribution of Registrable
Securities pursuant to such registration statement, as applicable.
4. Registration Procedures. In connection with the Company's registration
obligations pursuant to Section 2 hereof, the Company will use its best
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 as
expeditiously as possible:
a. prepare and file with the SEC, as soon as practicable, 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 financial statements of the Company, and use its best
efforts to cause such Registration Statement to become effective;
provided that before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, including documents
incorporated by reference after the initial filing of the Registration
Statement, the Company will furnish to (i) one counsel selected by the
holders of a majority of the shares of Registrable Securities covered
by such Registration Statement, and (ii) the underwriters, if any,
copies of all such documents proposed to be filed, which documents
will be subject to the review of such counsel and underwriters, and
the Company will not file any Registration Statement or
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amendment thereto or any Prospectus or any supplement thereto
(including such documents incorporated by reference) to which such
counsel or the underwriters, if any, shall reasonably object; and
provided further that the Company shall have the right to delay filing
or effectiveness of a Registration Statement filed pursuant to Section
2(b) hereto or the commencement of a public distribution of
Registrable Securities, as applicable, for up to 120 days if the
Company's Board of Directors determines, in good faith, that the
filing or effectiveness thereof or the commencement of such public
distribution could materially interfere with a pending extraordinary
transaction involving the Company or bona fide financing plans of the
Company or would require disclosure of information, the premature
disclosure of which would not be in the best interests of the Company,
but no further delays will be permitted;
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 period set forth in
Section 2(a) with respect to the Shelf Registration or nine months
with respect to a Demand Registration, or such shorter period which
will terminate when all Registrable Securities covered by 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 the Securities Act and all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the holders thereof set forth in such Registration
Statement or supplement to the Prospectus; the Company shall not be
deemed to have used its best efforts to keep a Registration Statement
effective during the applicable period if it voluntarily takes or
knowingly omits to take any action that would result in selling
holders of the Registrable Securities covered thereby not being able
to sell such Registrable Securities during that period unless such
action is required under applicable law; provided that the foregoing
shall not apply to actions or omissions 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 4(l) hereof, if
applicable;
c. notify the selling holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such
Person) confirm such advice in writing, (1) 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 the representations and warranties of the
Company contemplated by paragraph (n) below cease to be true and
correct, (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
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(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 a holder of Registrable Securities being sold in
connection with an Underwritten Offering, promptly incorporate in a
Prospectus supplement or post-effective amendment such information as
the managing underwriters and the holders of a majority in number of
the Registrable Securities being sold agree should be 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 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. promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the
Prospectus (after initial filing of the Registration Statement), make
available representatives of the Company for discussion of such
document and make such changes in such document prior to the filing
thereof as counsel for selling holders of Registrable Securities or
underwriters may reasonably request;
g. furnish to each selling holder of Registrable Securities and each
managing underwriter, 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);
h. deliver to each selling holder of Registrable Securities 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 each of the selling holders of Registrable Securities 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;
i. prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any,
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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 any such
selling holder or 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;
j. cooperate with the selling holders of Registrable Securities 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;
k. cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Registrable Securities;
l. 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
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 not misleading;
m. 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;
n. enter into and perform its obligations under 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,
whether or not an underwriting agreement is entered into and whether or
not the registration is an Underwritten Registration, (1) make such
representations and warranties to the holders of such Registrable
Securities and the underwriters, if any, 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, and the holders of a majority of the Registrable
Securities included in such registration, covering the matters
customarily covered in opinions requested in Underwritten Offerings and
such other matters as may be reasonably requested by such holders and
underwriters); (3) obtain "cold comfort" letters and updates thereof
from the Company's independent certified public accountants addressed
to the selling holders of Registrable Securities and the underwriters,
if any, such letters to be in customary
11
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 with respect to all parties to be
indemnified pursuant to said Section; and (5) the Company shall
deliver such documents and certificates as may be requested by the
holders of a majority of the Registrable Securities being sold and 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. The above
shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
o. make available for inspection by representatives of the holders
of the Registrable Securities, any underwriter participating in any
disposition pursuant to such registration, and any attorney or
accountant retained by the sellers or underwriter, all financial and
other records, pertinent corporate documents and properties of the
Company and cause the Company's officers, directors, employees,
counsel and accountants to supply all information reasonably requested
by any such representative, underwriter, attorney or accountant in
connection with such registration; provided that any records,
information or documents that are designated by the Company in writing
as confidential shall be kept confidential by such Persons unless
disclosure of such records, information or documents is required by
court or administrative order;
p. comply with all applicable rules and regulations of the SEC and
make available to its security holders, as soon as reasonably
practicable, earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act), covering any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm
commitment or reasonable efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day
of the first fiscal quarter of the Company after the effective date of
a Registration Statement;
q. cooperate with each seller of Registrable Securities 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
r. exempt any underwriter from the prohibition on owning more than a
specified percentage of the Company's Common Stock set forth in the
Company's articles of incorporation.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing and to enter
12
into agreements related to the distribution of the Registrable Securities that
are designed to insure compliance with the Exchange Act.
Each holder of Registrable Securities agrees by acquisition of such
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)(6) hereof, such
holder will forthwith discontinue disposition of Registrable Securities until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(c)(6) 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 such holder
will deliver to the Company (at the Company's expense), all copies, other than
permanent file copies then in such holder'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 Section 4(b) 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 selling holders of Registrable
Securities covered by such registration statement shall receive copies of the
supplemented or amended prospectus contemplated by Section 4(l) 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; all fees associated with a
required listing of the Registrable Securities on any securities exchange;
fees and expenses with respect to filings required to be made with the
NASD; fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters or
holders of Registrable Securities 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 or holders of a majority of the Registrable
Securities being sold may designate); printing expenses, messenger,
telephone and delivery expenses; fees and disbursements of counsel for the
Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any 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(n) 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;
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 holders of Registrable Securities.
6. Indemnification; Contribution.
a. Indemnification by Company. The Company agrees to indemnify and
hold harmless each holder of Registrable Securities and each Person
who controls such
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Person (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and their respective partners,
officers, directors, employees, agents, and Affiliates, against all
losses, claims, damages, liabilities and expenses (including without
limitation the reasonable fees and disbursements of counsel for such
Person in connection with any investigative, administrative or
judicial proceeding commenced or threatened by any other Person
(including without limitation, the Company or its Affiliates)) arising
out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus,
preliminary prospectus or any post-effective amendments or supplements
thereto 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 the holders of Registrable Securities expressly for use
therein. The Company will also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers and directors 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
the holders of Registrable Securities, if requested.
b. Indemnification by Holder of Registrable Securities. Each holder
of Registrable Securities agrees severally and not jointly to
indemnify and hold harmless the Company, each Person who controls the
Company (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act), each other holder and their
respective partners, directors, officers, employees, agents, and
Affiliates against any losses, claims, damages, liabilities and
expenses (including without limitation the reasonable fees and
disbursements of counsel for such Person in connection with any
investigative, administrative or judicial proceeding commenced or
threatened by any other Person) resulting from any untrue statement of
a material fact or any omission of a material fact required to be
stated in the Registration Statement, Prospectus, preliminary
prospectus or any post-effective amendment or supplement thereto 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 holder to the Company specifically for inclusion therein. In
no event shall the liability of any selling holder of Registrable
Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such holder upon the sale of the Registrable
Securities 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 Registration Statement,
Prospectus, preliminary prospectus or any post-effective amendment or
supplement thereto.
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
14
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 advice of
counsel of such Person, a conflict of interest may exist between such
Person and the indemnifying party with respect to such claims (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. 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 each 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 each such indemnifying party, but also the
relative fault of the indemnified party and each such indemnifying
party, as well as any other relevant equitable considerations,
provided, that no holder of Registrable Securities shall be required
to contribute an amount greater than the dollar amount of the proceeds
received by such holder with respect to the sale of the Registrable
Securities giving rise to such indemnification obligation. The
relative fault of the Company on the one hand and of the selling
holders 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 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentations.
15
7. Rule 144. The Company hereby agrees that, at any time and from time
to time, 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 holder of Registrable Securities
made ninety (90) days after the date hereof, make publicly available other
information so long as necessary to permit sales pursuant to Rule 144 under
the Securities Act), and it will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder 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, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder 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 are to be sold in an Underwritten Offering, the
investment banker or investment bankers and manager or managers that
will administer the offering will be selected by the holders of a
majority of the Registrable Securities included in such offering;
provided, that such investment bankers and managers must be reasonably
satisfactory to the Company.
b. No Person may participate in any Underwritten Registration
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.
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.
9. [Reserved.]
10. Miscellaneous.
a. Remedies. Each party hereto, in addition to being entitled to
exercise all rights provided herein or granted by law, including
recovery o 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. In any proceeding brought to enforce any provision
of this Agreement, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and
any other available remedy.
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b. Additional Registration Rights. The Company will not on or after
the date of this Agreement enter into any agreement granting
registration right to any other Person with respect to the securities
of the Company that are not pari passu or subordinate to the rights
granted to the holders of Registrable Securities hereunder with
respect to any incidental registration rights of the type described in
Section 2(c) hereof without the written consent of the holders of a
majority of the then outstanding Registrable Securities. Any agreement
entered into pursuant to such consent shall not be amended without a
further written consent of the holders of a majority of the then
outstanding Registrable Securities.
c. Preemptive Rights. At any time the Company grants any preemptive
rights with respect to its securities to any of its shareholders it
shall grant to each Investor preemptive rights that are no less
favorable than those granted to such shareholder.
d. Amendments and Waivers. No amendment, modification or supplement
to this Agreement or any provision hereof, and no waiver or consent to
departure from the provisions hereof, shall affect or be binding upon
any party who has not consented in writing to such amendment,
modification, supplement, waiver or consent to departure.
e. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or air courier guaranteeing
overnight delivery:
i. if to Ameritech, at the most current address given by
Ameritech to the Company, in accordance with the provisions of
this subsection, which address initially is 000 Xxxx Xxxxxxx
XX00X, Xxxxxxx, Xxxxxxxx 00000, Attention: Director Investment
Operations Department, with copies to (A) Director, Real Estate
Investments, and Attorney, Real Estate Investments (each at the
above address), (B) State Street Bank and Trust Company, One
Enterprise Drive, Xxxxxxx Xxxxxxx Building (W4B), North Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Xx., and (C)
Winston & Xxxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. XxXxxxxxx.
ii. if to the Company, initially at 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Executive
Officer, and thereafter at such other address as may be
designated from time to time by notice given in accordance with
the provisions of this Section 11(d), with a copy to Xxxxxx &
Xxxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, Esq.; and
iii. if to any transferee, at the address given by such
transferee to the Company.
f. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including,
17
without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities; provided that nothing
herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms
hereof; provided, further, that holders of Registrable Securities may
not assign their rights under this Agreement except in connection with
the permitted transfer of Registrable Securities and then only insofar
as relates to such Registrable Securities; and provided further that
with respect to any transfers of Registered Securities subsequent to
the filing or effectiveness of the Shelf Registration the Company
shall exert its best efforts to amend the Shelf Registration to
provide that any such transferee shall have the rights of an Investor
with respect thereto. The rights to request a Demand Registration
under Section 2(b) hereof reserved to the Investor under this
Agreement shall not be transferable provided that Ameritech shall be
permitted to assign the rights to request up to two Demand
Registrations under Section 2(b) hereof in connection with a transfer
of Registrable Securities and any such assignee of Ameritech shall
have no further right to assign such rights. If any transferee shall
acquire Registrable Securities, in any manner, whether by operation of
law or otherwise, such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and
provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
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 SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MARYLAND.
j. 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.
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.
18
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
MERIDIAN INDUSTRIAL TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
-----------------
Title: Secretary
----------
AMERITECH PENSION TRUST
By: State Street Bank and Trust Company, as
Trustee
By: /s/ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
--------------------
Title: Vice President
-------------------
19
