EXHIBIT 99.2
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REGISTRATION RIGHTS AGREEMENT
(MERIDIAN REALTY PARTNERS, L.P.)
MERIDIAN INDUSTRIAL TRUST, INC.
and
XXXXXXX ONTARIO I
August 20, 1998
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
the __ day of August, 1998 by and between MERIDIAN INDUSTRIAL TRUST, INC., a
Maryland corporation (the "Company"), and XXXXXXX ONTARIO I, a California
general partnership (the "Investor").
WHEREAS, Meridian Realty Partners, L.P., a Delaware limited partnership of
which MIT Unsecured, Inc., a wholly-owned subsidiary of the Company, is the sole
general partner (the "Operating Partnership"), and the Investor are parties to
various agreements of even date herewith (the "Concurrent Agreements")
providing, among other things, for the issuance to the Investor of limited
partnership interests ("OP Units") in the Operating Partnership upon the
contribution of certain assets to the Operating Partnership, all of which OP
Units, when surrendered for redemption may be acquired in exchange for shares of
the Company's common stock (the "Common Stock"), subject to certain restrictions
under the agreement of limited partnership of the Operating Partnership (the "OP
Partnership Agreement") and the Company's charter;
WHEREAS, in connection with the foregoing, the Company has agreed to
register for sale by the Investor the shares of Common Stock received by the
Investor in exchange for the OP Units that are surrendered for redemption
(collectively, the "Registrable Shares"); and
WHEREAS, the parties hereto desire to enter into this agreement to evidence
the foregoing agreement of the Company and the mutual covenants of the parties
relating thereto.
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NOW, THEREFORE, in consideration of the foregoing and the covenants of the
parties set forth herein and subject to the terms and conditions set forth
herein, the parties hereto hereby agree as follows:
SECTION 1. Certain Definitions. In this Agreement the following terms
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shall have the following respective meanings:
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control
with the person specified.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" means the common stock of the Company.
"Holders" means (i) the Investor, (ii) each Person holding OP Units as
a result of a Permitted Transfer to that Person of OP Units made by the
Investor in accordance with the provisions of the OP Agreement, and (iii)
each Person holding Registrable Shares as a result of a transfer or
assignment to that person of Registrable Shares made by the Investor in
accordance with this Agreement.
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"Indemnified Party" shall have the meaning ascribed to it in Section
4(c) of this Agreement.
"Indemnifying Party" shall have the meaning ascribed to it in Section
5(c) of this Agreement.
"Permitted Transfer" means a transfer of OP Units that is in
compliance with the terms and conditions of the OP Agreement.
"Person" means an individual, corporation, partnership, estate, trust,
association, private foundation, joint stock company or other entity.
The terms "Register", "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement or
an amendment to an existing registration statement in compliance with the
Securities Act providing for the sale by the Holders of all Registrable
Shares in accordance with the method or methods of distribution designated
by the Holders, and the declaration or ordering of the effectiveness of
such registration statement or amendment by the Commission.
"Registrable Shares" shall have the meaning ascribed to it in the
recitals to this Agreement.
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"Registration Expenses" means all out-of-pocket expenses (excluding
Selling Expenses) incurred by the Company in complying with Section 2
hereof, including, without limitation, the following:
(a) All registration, filing and listing fees;
(b) Fees and expenses of compliance with federal and state securities
or real estate syndication laws (including, without limitation, reasonable
fees and disbursements of counsel in connection with state securities and
real estate syndication qualifications of the Registrable Shares under the
laws of such jurisdictions as the Holders may designate);
(c) Printing (including, without limitation, expense of printing or
engraving certificates for the Registrable Shares in a form eligible for
deposit with Depositary Trust Company and otherwise meeting the
requirements of any securities exchange on which they are listed and of
printing registration statements and prospectuses, messenger, telephone,
shipping and delivery expenses;
(d) Fees and disbursements of counsel for the Company;
(e) Fees and disbursements of all independent public accountants of
the Company (including without limitation the expenses of any annual or
special audit and "cold comfort" letters required by the managing
underwriter);
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(f) Securities act liability insurance if the Company so desires;
(g) Fees and expenses of other Persons reasonably necessary in
connection with the registration, including any experts, retained by the
Company;
(h) Fees and expenses incurred in connection with the listing of the
Registrable Shares on each securities exchange on which the securities of
the same class are then listed; and
(i) Fees and expenses associated with any NASD filing required to be
made in connection with the registration statement.
"Rights" shall have the meaning ascribed to it in Section 7(a).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the relevant time.
"Selling Expenses" means all customary underwriting discounts, selling
commissions and stock transfer taxes applicable to the Registrable Shares.
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SECTION 2. Registration.
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(a) The Company shall prepare and file with the Commission on or
prior to July 15, 1999 a registration statement on an appropriate form pursuant
to Rule 415 under the Securities Act, or similar rule that may be adopted by the
Commission, or an amendment to the Company's existing registration statement on
Form S-3 (in either case, the "Registration Statement") for the purpose of
effecting a Registration of the Registrable Shares, shall use all commercially
reasonable efforts to effect such Registration on or prior to September 1, 1999
(including, without limitation, the execution of an undertaking to file post-
effective amendments and appropriate qualification under applicable state
securities and real estate syndication laws), and shall keep such Registration
continuously effective under the later of September 1, 2003 or the fourth
anniversary of the date upon which the registration statement used to effect the
Registration is first declared effective by the Commission, so as to permit or
facilitate the sale and distribution of the Registrable Shares in accordance
with the terms of this Agreement; provided, however, that the Company shall not
be obligated to take any action to effect any such Registration, qualification
or compliance pursuant to this Section 2 in any particular jurisdiction (other
than California) in which the Company would be required to execute a general
consent to service of process to effect such Registration, qualification or
compliance unless the Company is already subject to service in such
jurisdiction. The Company and the Investor agree that no offering by the Holders
of Registrable Shares hereunder shall be an underwritten offering.
Notwithstanding the foregoing, the Company shall have the right to defer
such filing (or suspend sales under any filed registration statement or defer
the updating of any filed registration
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statement and suspend sales thereunder) for a period of not more than 120 days
during any one-year period ending on September 1 if the Company shall furnish to
the Holders a certificate signed by the President or any other executive officer
or any director of the Company stating that in the judgment of the Company it
would be detrimental to the Company and its shareholders to file such
registration statement at such time (or continue sales under a filed
registration statement) and therefore the Company has elected to defer the
filing of such registration statement (or suspend sales under a filed
registration statement).
(b) The Company shall promptly notify the Holders of the occurrence
of the following events:
(i) The filing with the Commission of the registration
statement, any supplement to the prospectus or any amendment or post-
effective amendment to the registration statement and, with respect to the
registration statement or any post-effective amendment, when the same has
become effective;
(ii) Any request by the Commission for amendments or post-
effective amendments to the registration statement or supplements to the
prospectus or for additional information;
(iii) The issuance by the Commission of any stop order suspending
the effectiveness of the registration statement or the initiation or
threatening of any proceedings for that purpose;
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(iv) The suspension of an effective registration statement by
the Company in accordance with the last paragraph of Section 2(a) above;
(v) The Company's receipt of any notification of the suspension
of the qualification of any shares of Common Stock covered by the
registration statement for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose; and
(vi) The existence of any event, fact or circumstance that
results in the registration statement, the prospectus or any document
incorporated therein by reference containing an untrue statement of
material fact or omitting to state a material fact required to be stated
therein or necessary to make the statements therein not misleading during
the distribution of securities.
The Company shall use its best effort to obtain the withdrawal of any order
suspending the effectiveness of the registration statement or any state
qualification at the earliest possible moment.
(c) The Company shall provide to each Holder, at no cost to the
Holders, promptly upon the effectiveness thereof, five copies of the prospectus
and any post-effective amendment or supplement thereto, together with a copy of
the registration statement and any amendment thereto used to effect the
Registration of the Registrable Shares, each prospectus contained in such
registration statement or post-effective amendment and any amendment or
supplement thereto including financial statements and schedules, all documents
incorporated therein
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by reference and all exhibits thereto. The Company shall also provide the
Holders with such other documents as the requesting Holders may reasonably
request necessary to facilitate the disposition of the Registrable Shares
covered by such registration statement. The Company consents to the use of each
prospectus or any supplement thereto by the Holders in connection with the
offering and sale of the shares covered by such registration statement or any
amendment thereto.
(d) The Company shall use its best efforts to cause the shares
covered by the registration statement to be registered with or approved by such
state securities authorities as may be necessary to enable the Holders to
consummate the disposition of such shares pursuant to the plan of distribution
set forth in the registration statement.
(e) If any event, fact or circumstance requiring an amendment to the
registration statement or supplement to the prospectus shall exist, immediately
upon becoming aware thereof the Company shall notify the Holders and, subject to
the provisions of the last paragraph of Section 2(a), prepare and furnish to the
Holders a post-effective amendment to the registration statement or supplement
to the 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 Shares, the 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 not misleading. Upon receipt of any
notice from the Company of the happening of any event of the kind described in
this Section 2(e), each Holder will immediately discontinue the disposition of
Registrable Shares pursuant to the Registration Statement until the Holder's
receipt of the copies of the supplemented
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or amended prospectus contemplated by this Section 2(e) or further notification
from the Company, as applicable, and, if so directed by the Company, the Holder
shall deliver to the Company all copies, other than permanent file copies then
in the Holder's possession, of the most recent prospectus covering such
Registrable shares at the time of receipt of such notice.
(f) The Company shall cause all Registrable Shares covered by the
registration statement to be listed on each securities exchange on which
securities of the same class are then listed.
(g) The Company shall use its best efforts to comply with the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including in each case the rules adopted by the Commission
thereunder, and, as soon as reasonably practicable following the end of any
fiscal year during which a registration statement effecting a Registration of
Registrable Shares shall have been effective, to make available to its security
holders an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act.
(h) The Company shall cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Shares to be sold and not bearing any Securities Act legend; and
enable certificates for such Registrable Shares to be issued for such numbers of
shares and registered in such names as the selling Holders may reasonably
request at least two business days prior to any sale of Registrable Shares.
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SECTION 3. Expenses of Registration.
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The Holders shall bear the first $5,000 of Registration Expenses
incurred in connection with the registration, qualification or compliance
pursuant to Section 2 hereof pro rata in the proportion that the number of
Registrable Shares held by the respective Holder registered thereby bears to the
total number of Registrable Shares owned by all Holders registered thereby. The
Holders shall not be obligated to pay in excess of $5,000 or Registration
Expenses in connection with the registration (and related qualification and
compliance) effected pursuant to this Agreement. All Selling Expenses incurred
by a Holder in connection with the sale of Registrable Shares shall be borne by
such Holder, and no other Holder shall have any responsibility therefor. Each
Holder shall bear the expense of its or his own counsel.
SECTION 4. Indemnification.
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(a) The Company will indemnify each Holder against all expenses,
claims, losses, damages and liabilities (including reasonable legal expenses)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement or prospectus, or any
amendment or supplement thereto, or based on 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, provided, however, that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission or alleged untrue statement or omission, made in reliance upon and
in conformity with information furnished in writing to the Company by such
Holder for
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inclusion therein and provided, further, that the Company will not be liable in
any such case with respect to any such untrue statement or omission made in any
prospectus that is corrected in any amendment or supplement thereto if the
person asserting any such loss, claim, damage or liability purchased shares of
Common Stock from such Holder, but was not sent or given a copy of the
prospectus as amended or supplemented at or prior to the written confirmation of
the sale of such Common Stock to such person in any case where such delivery of
the amended or supplemented prospectus is required by the Securities Act, unless
such failure was a result of noncompliance by the Company with Section 2(e) of
this Agreement.
(b) Each Holder will indemnify the Company, each of its directors and
each of its officers who sign the registration statement, and each person who
controls the Company within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages, and liabilities (including reasonable legal
fees and expenses) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement or prospectus, or any amendment or supplement thereto, or based on 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, in
each case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement or prospectus, in reliance upon and in conformity with
information furnished in writing to the Company by such Holder for inclusion
therein.
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(c) Each party entitled to indemnification under this Section 4 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party otherwise than pursuant to
the provisions of this Section 4 and then, only to the extent of the actual
damages suffered by such delay in notification. The Indemnifying Party shall
assume the defense of such action, including the employment of counsel to be
chosen by the Indemnifying Party to be reasonably satisfactory to the
Indemnified Party and payment of expenses. The Indemnified Party shall have the
right to employ its own counsel in any such case, but the legal fees and
expenses of such counsel shall be at the expense of the Indemnifying Party,
unless the employment of such counsel shall have been authorized in writing by
the Indemnified Party in connection with the defense of such action, or the
Indemnifying Party shall not have employed counsel to take charge of the defense
of such action or the Indemnified Party shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to the Indemnifying party (in which case the
Indemnifying Party shall not have the right to direct the defense or such action
on behalf of the Indemnified Party), in any of which events such fees and
expenses shall be borne by the Indemnifying Party. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, 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.
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(d) If the indemnification provided for in this Section 4 is
unavailable to a party that would have been an Indemnified Party under this
Section in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that would have been an Indemnifying Party
hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
expenses, claims, losses, damages and liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. The
relative fault 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
Indemnifying Party or such Indemnified Party and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each holder of Registrable Shares agrees
that it would not be just and equitable if contribution pursuant to this section
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 4(d).
(e) 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.
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SECTION 5. Information to be Furnished by Holders.
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Each Holder shall furnish to the Company such information as the
Company may reasonably request in writing (which request shall be submitted a
reasonable period of time in advance of the filing of the registration statement
or amendment or supplement thereto with respect to which the requested
information relates) and as shall be required in connection with the
Registration and related proceedings referred to in Section 2 hereof.
SECTION 6. Additional Representations.
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Each Holder of OP Units, upon surrender of any such OP Units for
redemption as provided in the OP Partnership Agreement, shall make such
investment and other representations in connection with (and as a condition to)
the issuance of Common Stock in exchange for such OP Units as the Company or the
Operating Partnership may reasonably request.
SECTION 7. Rule 144 Sales.
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(a) The Company shall file the reports required to be filed by the
Company under the Securities Act and the Exchange Act, so as to enable any
Holder to sell Registrable Shares pursuant to Rule 144 under the Securities Act.
(b) In connection with any sale, transfer or other disposition by any
Holder of any Registrable Shares pursuant to Rule 144 under the Securities Act,
the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable
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Shares to be sold and not bearing and Securities Act legend, and enable
certificates for such Registrable Shares to be for such number of shares and
registered in such names as the selling Holders may reasonably request at least
two business days prior to any sale of Registrable Shares.
SECTION 8. Miscellaneous.
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(a) Governing Law. This Agreement shall be governed in all respects
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by the laws of the State of Delaware.
(b) Amendment. This Agreement may be amended, waived, discharged or
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terminated only by a written instrument signed by the parties' signatory hereto.
(c) Notices, Etc. Each notice, demand, request, request for approval,
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consent, approval, disapproval, designation or other communication (each of the
foregoing being referred to herein as a notice), required or desired to be given
or made under this Agreement shall be in writing (except as otherwise provided
in this Agreement), and shall be effective and deemed to have been received (i)
when delivered in person, (ii) when sent by facsimile transmission with receipt
acknowledged, (iii) five (5) days after having been mailed by certified or
registered United States mail, postage prepaid, return receipt requested, or
(iv) the next business day after having been sent by a nationally recognized
overnight mail or courier service, receipt requested. Notices shall be addressed
as follows: (a) if to the Investor, at its address set forth below its signature
hereon, or at such other address or to the fax number as the Investor shall have
furnished to the Company in writing, or (b) if to the assignee or transferee of
the Investor, at such address or to the fax number
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as such assignee or transferee shall have furnished the Company in writing, or
(c) if to the Company, at the address of its principal executive offices and
addressed to the attention of the President, or at such other adders or to the
fax number as the Company shall have furnished to the Investor and the assignee
or transferee. Any notice or other communication required to be given hereunder
to a Holder in connection with a registration may instead be given to the
designated representative of such Holder.
(d) Counterparts. This Agreement may be executed in counterparts,
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both of which together shall constitute one instrument.
(e) Severability. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
(f) Section Titles. Section titles are for descriptive purposes only
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and shall not control or alter the meaning of the Agreement as set forth in the
text.
(g) Successors and Assigns. This Agreement shall be binding upon the
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parties hereto and their respective successors and permitted assigns.
(h) Remedies. The Company and the Investor acknowledge that there
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would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and
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accordingly agree that the Company and each Holder, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations or another party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction.
(i) Attorneys' Fees. If the Company or any holder brings an action to
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enforce its rights under this Agreement, the prevailing party in the action
shall be entitled to recover its costs and expenses, including without
limitation, reasonable attorneys' fees, incurred in connection with such action,
including any appeal of such action.
(j) Third Party Beneficiaries. Each Holder and each Indemnified
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Party, and only such Persons, shall be third party beneficiaries of the
agreements contained in this Registration Rights Agreement.
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The foregoing Registration Rights Agreement is hereby executed as of the
date herein written.
THE COMPANY:
MERIDIAN INDUSTRIAL TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
________________________________
Name: Xxxxxx X. Xxxxxx
______________________________
Title: President
_____________________________
Address: 000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xx. Xxxxxx X. Xxxxxx
S-1
THE INVESTOR:
XXXXXXX ONTARIO I
By: /s/ Xxx X. Xxxxx, Xx
__________________________________
Xxx X. Xxxxx, Xx
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________________
Xxxxxxx X. Xxxxxxx
By: /s/ Xxxxx X. Xxxxx
__________________________________
Xxxxx X. Xxxxx
By: The Xxxxx Family Trust u/t/d
August 27, 1987
By: /s/ Xxxxxxxx Xxxxx Xxxxx
__________________________________
Xxxxxxxx Xxxxx Xxxxx, Trustee
By: /s/ Xxxxxxxx Xxxxxx Xxxxx
__________________________________
Xxxxxxxx Xxxxxx Xxxxx, Trustee
Title: General Partners
Address: X.X. Xxx 000
Xxxxxx Xxxxx Xx, XX 00000
Telecopy: (___) ___-____
Attn: Xx. Xxxxxxx X. Xxxxxxx
X-0
