REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of November 14, 2003, is
entered into by and among AMB Property Corporation, a Maryland corporation (the
"Company"), AMB Property II, L.P., a Delaware limited partnership (the
"Partnership"), 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, the Company, the Partnership and the Unit Holders as the
parties which hold ownership interests in certain industrial/warehouse/office
properties (collectively, the "Property") will engage in certain transactions
whereby the Unit Holders will contribute to the Partnership their respective
interests in the Property;
WHEREAS, the Unit Holders will receive units of limited partnership
interests ("Units") in the Partnership in exchange for their respective
interests in the Property and the Company will be the general partner of the
Partnership;
WHEREAS, pursuant to the Partnership Agreement (as defined below),
Units owned by the Unit Holders will be redeemable for cash or exchangeable for
shares of the Company's common stock, par value $.01 per share (the "Common
Stock"), upon the terms and subject to the conditions contained therein; and
WHEREAS, the Unit Holders are willing to contribute their respective
interests in the Property 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
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.
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"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 Units" means Units which may be redeemable for cash or
exchangeable for Common Stock pursuant to Section 23.4 of the Partnership
Agreement (without regard to any limitations on the exercise of such exchange
right as a result of the Ownership Limit Provisions, as defined below).
"Holder" means any Unit Holder who is the record or beneficial owner of
any Registrable Security or any assignee or transferee of such Registrable
Security (including assignments or transfers of Registrable Securities to such
assignees or transferees as a result of the foreclosure on any loans secured by
such Registrable Securities) unless such Registrable Security is acquired in a
public distribution pursuant to a registration statement under the Securities
Act or pursuant to transactions exempt from registration under the Securities
Act, in each such case where securities sold in such action may be resold
without subsequent registration under the Securities Act.
"Incapacitated" shall have the meaning set forth in the Partnership
Agreement.
"Ownership Limit Provisions" mean the various provisions of the
Articles of Incorporation set forth in Article IV thereof restricting the
ownership of Common Stock by certain Persons to specified percentages of the
outstanding Common Stock.
"Partnership Agreement" means the Twelfth Amended And Restated
Agreement of Limited Partnership of the Partnership dated as November 14, 2003,
as may be amended, modified or restated from time to time.
"Person" means an individual or a corporation, partnership, limited
liability company, association, trust, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Registrable Securities" means shares of Common Stock of the Company at
any time owned, either of record or beneficially, by any Holder issued upon
exchange of Exchangeable Units until (i) a registration statement covering such
securities has been declared effective by the Commission and such shares have
been sold or transferred pursuant to such effective registration statement, (ii)
such shares are sold under circumstances in which all of the applicable
conditions
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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
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 the Units are issued (the
"Issue Date") a "shelf" registration statement with respect to shares of Common
Stock issuable upon the exchange of Exchangeable Units covering the issuance by
the Company and the resale thereof by the Holders on an appropriate form for an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement") and shall use its best
efforts 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
Issue 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 Issue 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 therewith:
(a) The Company will as expeditiously as possible prepare and file with
the Commission a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the resale of the Registrable Securities to be registered
thereunder in accordance with the intended method of
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distribution thereof, and use its best efforts to cause such filed registration
statement to become and remain effective as provided in Section 2.1 hereof.
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to each
Selling Holder 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.
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(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
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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 correction 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. Except as expressly set forth in the preceding sentence, 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
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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 connected 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
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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 gelling Holders which owned a
majority of the Registrable Securities sold under the applicable registration
statement and (ii) in the case of Persons indemnified pursuant to Section 2.6
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
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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 11.
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
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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 action, 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
TRANSFER RESTRICTIONS
SECTION 3.1 Transfer of Common Stock. Each Unit Holder agrees that in
no event will it transfer, sell, assign, pledge, hypothecate or otherwise
dispose of (each, a "Transfer") any Registrable Securities other than pursuant
to an effective registration statement unless, if requested by the Company, at
the expense of such Unit Holder or its designee, such Unit Holder shall furnish
to the Company an opinion of counsel and such other information, reasonably
satisfactory to the Company to the effect that such Transfer may be consummated
without registration under the Securities Act.
SECTION 3.2 Legend.
(a) All Registrable Securities shall bear legends in substantially the
following form:
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\
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND, THEREFORE, MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT, OR (B) IF THE CORPORATION HAS BEEN FURNISHED WITH A
SATISFACTORY OPINION OF COUNSEL FROM THE HOLDER OF THE SHARES
REPRESENTED HEREBY, OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION,
THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND STATE
SECURITIES LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE,
EXCEPT IN ACCORDANCE WITH THE PROCEDURES AND RESTRICTIONS SET FORTH IN
A REGISTRATION RIGHTS
AGREEMENT DATED AS OF NOVEMBER 14, 2003, COPIES OF WHICH ARE FILED AT
THE PRINCIPAL OFFICE OF AMB PROPERTY CORPORATION AND ARE AVAILABLE
WITHOUT CHARGE UPON WRITTEN REQUEST THEREFOR. ANY PURPORTED TRANSFER IN
VIOLATION OF SUCH RESTRICTIONS SHALL BE VOID AND OF NO EFFECT.
(b) Any certificates for Registrable Securities shall also bear any
other legend required by any applicable state securities law and a legend
regarding the ownership limitations set forth in the Company's Articles of
Incorporation, as amended.
(c) In addition, the Company shall make a notation regarding the
restrictions on transfer of Registrable Securities in its stock records, and any
such Registrable Securities shall be transferred on the records of the Company
only if transferred or sold in compliance with the provisions of this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 New York Stock Exchange Listing. In the event that the
Company shall issue any Common Stock in exchange for Units pursuant to Section
23.4 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 4.2 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
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of the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate.
SECTION 4.3 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 4.4 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 to c/o Stein & Xxxxx LLP, 000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Attn.: Xxxx X. Xxxxx,
Esq., or to such other address and to such other Persons as the Unit Holders may
hereafter specify in writing; and
(2) if to the Company, initially at Xxxx 0, Xxx 0, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (Attention: 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 4.5 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 4.6 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.
Counterparts hereof containing facsimile copy signatures shall have the same
force and effect as original signed counterparts.
SECTION 4.7 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 4.8 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,
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the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
SECTION 4.9 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 4.10 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 4.11 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.
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/ Xxxxxxx X. Coke
-----------------------------------------------
Its: Executive Vice President and Chief Financial
Officer
AMB PROPERTY II, L.P.,
a Delaware limited partnership
By: Texas AMB I, LLC
a Delaware limited liability company
its general partner
By: AMB Property Holding Corporation,
a Maryland corporation
its sole member
By: /s/ Xxxxxxx X. Coke
----------------------
Its: Executive Vice President and
Chief Financial Officer
[SIGNATURES CONTINUED ON NEXT PAGE]
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UNIT HOLDERS
/s/ Xxxx Xxxxxxxx
---------------------------------------------------
Xxxx Xxxxxxxx, an individual
/s/ Xxxx Xxxxxx
---------------------------------------------------
Xxxx Xxxxxx, an individual
/s/ Xxxxxxxx Xxxxxxxx
---------------------------------------------------
Xxxxxxxx Xxxxxxxx, an individual
/s/ Xxxx Xxxxxxxx
---------------------------------------------------
Xxxx Xxxxxxxx, an individual
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