REGISTRATION RIGHTS AGREEMENT
Exhibit 4.33
THIS REGISTRATION RIGHTS AGREEMENT, dated as of May 5, 1999 (this “Agreement”), is
entered into by and among AMB Property Corporation, a Maryland corporation (the “Company”),
AMB Property II, L.P., a Delaware limited partnership (the “Subsidiary Operating
Partnership”), and the unit holders whose names are set forth on the signature pages hereto
(each, a “Unit Holder” and collectively, the “Unit Holders”).
RECITALS
WHEREAS, in connection with the offering of 7.75% Series D Cumulative Redeemable Preferred
Units of the Subsidiary Operating Partnership (the “Units”), X.X. Xxxxxx Mosaic Fund, LLC,
a Delaware limited liability company (the “Contributor”), desires to contribute to the
Subsidiary Operating Partnership cash in return for the Units on the terms and conditions set forth
in the Contribution Agreement, dated May 5, 1999 (the “Contribution Agreement”), by and
among the Company, the Subsidiary Operating Partnership, AMB Property, L.P., a Delaware limited
partnership (the “OP Parent”), AMB Property Holding Corporation, a Maryland corporation
(the “General Partner”), and the Contributor;
WHEREAS, the Unit Holders will receive the Units in exchange for cash to the
Contributor;
WHEREAS, pursuant to the Partnership Agreement (as defined below), the Units owned by
the Unit Holders will be redeemable for cash or exchangeable for shares of the Company’s 7.75%
Series D Cumulative Redeemable Preferred Stock (the “Preferred Stock”) upon the terms and
subject to the conditions contained therein; and
WHEREAS, in order to induce the Contributor to enter into the Contribution Agreement, the
Company and the Subsidiary Operating Partnership have agreed to provide registration rights set
forth herein to the Contributor and any subsequent holder or holders of the Units.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained,
and for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
SECTION 1.1 Definitions. In addition to the definitions set forth above, the
following terms, as used herein, have the following meanings:
“Affiliate” of any Person means any other Person directly or indirectly controlling or
controlled by or under common control with such Person. For the purposes of this definition,
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“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” has the meaning given to such term in the preamble hereto.
“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.
“Articles Supplementary” means the Articles Supplementary of the Company, filed with
the Maryland State Department of Assessments and Taxation on May 5, 1999, designating the Preferred
Stock.
“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.
“Company” has the meaning set forth in the preamble to this Agreement.
“Contribution Agreement” means the Contribution Agreement, dated May 5, 1999, by and
among the Company, the Subsidiary Operating Partnership, the OP Parent, the General Partner and the
Contributor.
“Contributor” means X.X. Xxxxxx Mosaic Fund, LLC, a Delaware limited liability
company.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Exchangeable Units” means Units which may be redeemable for cash
pursuant to Section 17.5 of the Partnership Agreement or exchangeable for Preferred Stock or
redeemable for cash pursuant to Section 17.8 of the Partnership Agreement (without regard to any
limitations on the exercise of such exchange right as a result of the Ownership Limit Provisions,
as defined below).
“General Partner” means AMB Property Holding Corporation, a Maryland corporation, or its
successors as general partner of the Subsidiary Operating Partnership.
“Holder” means any Person who is the record or beneficial owner of any Registrable
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Security or any assignee or transferee of such Registrable Security (including assignments or
transfers of Registrable Securities to such assignees or transferees as a result of the foreclosure
on any loans secured by such Registrable Securities) unless such Registrable Security is acquired
in a public distribution pursuant to a registration statement under the Securities Act or pursuant
to transactions exempt from registration under the Securities Act, in each such case where
securities sold in such transaction may be resold without subsequent registration under the
Securities Act.
“Incapacitated” shall have the meaning set forth in the Partnership Agreement.
“Ownership Limit Provisions” mean the various provisions of the Articles Supplementary
set forth in Section 7 of Article Third thereof restricting the ownership of Preferred Stock by
certain Persons to specified percentages of the outstanding Preferred Stock.
“Partnership Agreement” means the Fourth Amended and Restated Agreement of Limited
Partnership of the Subsidiary Operating Partnership, dated as of May 5, 1999, as the same may be
amended, modified or restated from time to time.
“Person” means an individual or a corporation, partnership, limited liability company,
association, trust, or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“Preferred Stock” means the Company’s 7.75% Series D Cumulative Redeemable Preferred
Stock.
“Registrable Securities” means shares of Preferred 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 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 promulgated under the Securities Act, as such rule may be
amended from time to time, or any similar rule (other than Rule 144A) or regulation hereafter
adopted by the Commission providing for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not affiliates of the Company of such
securities being free of the registration and prospectus delivery requirements of the Securities
Act.
“Securities Act” means the Securities Act of 1933, as amended.
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“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.
“ Units” means 7.75% Series D Cumulative Redeemable Preferred Units of the
Subsidiary Operating Partnership.
ARTICLE II
REGISTRATION RIGHTS
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration. The Company shall prepare and file with the
Commission a “shelf” 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 by the Holders for an offering to be made on a continuous or
delayed basis pursuant to Rule 415 under the Securities Act (the “Shelf Registration
Statement”) as soon as practicable but in any event not later than 60 days after the date the
Units are exchanged for shares of Preferred Stock and shall use its best efforts to cause
the Shelf Registration Statement to be declared effective within 120 days after the date of such
exchange. The Company shall use its best efforts to keep such Shelf Registration Statement
continuously effective until the earliest of (A) 24 months following the effective date of the
Shelf Registration Statement, (B) such time as all of the Registrable Securities have been sold
pursuant to the Shelf Registration Statement or Rule 144 and (C) the date on which the Registrable
Securities may be sold without volume restrictions in accordance with Rule 144.
SECTION 2.2 Registration Procedures; Filings; Information. In connection with any
Shelf Registration Statement, 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, 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.
(b) 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
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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.
(c) The Company will use its best efforts to (i) register or qualify the Registrable
Securities under such other state 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 (c), (B) subject itself to taxation in any such jurisdiction or (C) consent
to general service of process in any such jurisdiction.
(d) 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.
(e) 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.
(f) 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
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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.
(g) 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).
(h) 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.
(i) The Company will use its best efforts to obtain CUSIP numbers for the Preferred Stock not
later than the effective date of the Shelf Registration Statement.
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 2.2(d) 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 2.2(d) hereof, and, if so directed by the
Company, such Selling Holder will deliver to the Company all copies, other than permanent file
copies then in such Selling Holder’s possession, of the most recent prospectus and each amendment
thereof and supplement thereto covering such Registrable Securities at the time of receipt of such
notice. Each Selling Holder of Registrable Securities agrees that it will immediately notify the
Company at any time when a prospectus relating to the registration of such Registrable Securities
is required to be delivered under the Securities Act of the happening of an event known to such
Selling Holder as a result of which information previously furnished by such Selling Holder to the
Company in writing for inclusion in such prospectus contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not misleading. In the
event the Company
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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 2.1
hereof) by the number of days during the period from and including the date of the giving of notice
pursuant to Section 2.2(d) 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 2.2(d) hereof.
SECTION 2.3 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 state securities or blue
sky laws (including reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv) internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (v) the fees and expenses incurred in connection with the listing of
the Registrable Securities on each securities exchange on which similar securities issued by the
Company are then listed, (vi) reasonable fees and disbursements of counsel for the Company and
customary fees and expenses for independent certified public accountants retained by the Company,
(vii) the reasonable fees and expenses of any special experts retained by the Company in connection
with such registration; and (viii) the reasonable fees and expenses of one counsel (who shall be
reasonably acceptable to the Company) for the Selling Holders. 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 2.4 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 of material fact so made in reliance upon and in conformity
with information furnished in writing to the Company by such Selling Holder or on such Selling
Holder’s behalf expressly for inclusion therein. The Company also agrees to indemnify any
Underwriters of the Registrable Securities, their officers and directors and each Person who
controls such Underwriters within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act on substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 2.4, provided that the foregoing indemnity with respect to
any
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preliminary prospectus shall not inure to the benefit of any Underwriter of the Registrable
Securities from whom the person asserting any such losses, claims, damages or liabilities purchased
the Registrable Securities which are the subject thereof if such person did not receive a copy of
the prospectus (or the prospectus as supplemented) at or prior to the confirmation of the sale of
such Registrable Securities to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in the prospectus (or the prospectus as supplemented).
SECTION 2.5 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 2.4 hereof. Each Selling Holder also
agrees to indemnify and hold harmless the 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 2.5.
SECTION 2.6 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 2.4 or 2.5 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, (ii) the
Indemnifying Party has not employed counsel to assume the defense of such proceeding within a
reasonable time after receiving notice of the commencement of the proceeding, or (iii) 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 2.4 hereof, by the Selling Holders
which owned a majority of the Registrable Securities sold under the applicable registration
statement and (ii) in the case of Persons indemnified pursuant to Section 2.5 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 2.7 Contribution. If the indemnification provided for in Sections 2.4 or
2.5 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
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in the table on the cover page of the prospectus. The relative fault of the Company and the
Selling Holders on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company and the Selling Holders or by the Underwriters. The relative fault of the Company on the
one hand and of each Selling Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company or such
Selling Holder, and the Company’s and the Selling Holder’s relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and equitable if
contribution pursuant to this Section 2.7 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 2.4 and 2.5 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 2.7, 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 Holders’
obligations to contribute pursuant to this Section 2.7 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 2.8 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 the applicable underwriting arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other
documents in customary form and reasonably required under the terms of such underwriting
arrangements and these registration rights provided for in this Article II.
SECTION 2.9 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
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action as any Holder may reasonably request, all to the extent required from time to time to
enable Holders to sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, the Company will deliver to
such Holder a written statement as to whether it has complied with such requirements.
SECTION 2.10 Holdback Agreements.
(a) If the Company determines in its good faith judgment that the filing of the Shelf
Registration Statement 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 2.10(a) is no longer necessary and
(ii) 120 days. The Company agrees to grant to the Holders any rights granted after the date of
this Agreement to holders of shares of another class or series of the Company’s preferred stock
which limit the Company’s ability to suspend the rights of such holders under the registration
rights agreement applicable to such shares which are more favorable than the rights granted to the
Holders pursuant to this Section 2.10(a). 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, Rule
3-14 or Article 11 of Regulation S-X, 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, Rule 3-14 or Article 11 of Regulation S-X to be
included or incorporated by reference, as applicable, in the Shelf Registration Statement, and the
Company shall notify the Holders as promptly as practicable when such suspension is no longer
required.
ARTICLE III
MISCELLANEOUS
MISCELLANEOUS
SECTION 3.1 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
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specific performance of the rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
SECTION 3.2 Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given without the prior written consent of the
Company and the Holders or any such Holder’s representative if any such Holder is Incapacitated.
No failure or delay by any party to insist upon the strict performance of any covenant, duty,
agreement or condition of this Agreement or to exercise any right or remedy consequent upon any
breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement
or condition.
SECTION 3.3 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:
X.X. Xxxxxx Mosaic Fund, LLC
c/o X.X. Xxxxxx Private Investments Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxxx
Facsimile Number: (000) 000-0000
c/o X.X. Xxxxxx Private Investments Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxxx
Facsimile Number: (000) 000-0000
(2) if to the Company, initially at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(Attention: President and Chief Executive Officer), or to such other address as the Company may
hereafter specify in writing.
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; when received if deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
SECTION 3.4 Successors and Assigns. Except as expressly provided in this Agreement,
the rights and obligations of the Holders under this Agreement shall not be assignable by any
Holder to any Person that is not a Holder. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns.
SECTION 3.5 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Each party shall become bound by this Agreement immediately upon affixing
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its signature hereto. Counterparts hereof containing facsimile copy signatures shall have the
same force and effect as original signed counterparts.
SECTION 3.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California without regard to the choice of law
provisions thereof.
SECTION 3.7 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
SECTION 3.8 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
SECTION 3.9 Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
SECTION 3.10 No Third Party Beneficiaries. Nothing express or implied herein is
intended or shall be construed to confer upon any person or entity, other than the parties hereto
and their respective successors and assigns, any rights, remedies or other benefits under or by
reason of this Agreement.
(Signature Page Follows)
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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/ Xxxx X. Xxxxxxx, Xx. | |||
| Xxxx X. Xxxxxxx, Xx. | ||||
| Senior Vice President and Director of Markets | ||||
AMB PROPERTY II, L.P., a Delaware liability partnership By: AMB Property Holding Corporation, its General Partner |
||||
| By: | /s/ Xxxx X. Xxxxxxx, Xx. | |||
| Xxxx X. Xxxxxxx, Xx. | ||||
| Senior Vice President and Director of Markets | ||||
| UNIT HOLDERS X.X. XXXXXX MOSAIC FUND, LLC By: X.X. XXXXXX PRIVATE INVESTMENTS INC., as manager of X.X. Xxxxxx Mosaic Fund, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
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