Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of November 21, 1997,
is entered into by and between Health Care Property Investors, Inc., a
Maryland corporation (the "Company"), and Cambridge Medical Center of San
Diego, LLC, a California limited liability company (the "Unitholder").
RECITALS
WHEREAS, the Company, the Unitholder and Cambridge Medical
Properties, LLC, a Delaware limited liability company (the "Operating LLC")
have entered into that certain Contribution Agreement dated as of the date
hereof (the "Contribution Agreement") providing, among other things, for the
contribution of certain property by the Unitholder to the Operating LLC and
the contribution of cash by the Company to the Operating LLC; and
WHEREAS, it is a condition to the closing of the transactions
contemplated by the Contribution Agreement that the parties hereto enter into
this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for other 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.
The following capitalized terms, as used in this Agreement, have
the following meanings:
"Agreement" means this Registration Rights Agreement, as it may be
amended, supplemented 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 Los Angeles, California
are authorized by law to close.
"Closing Price" means (i) the closing price of a share of Common
Stock on the principal exchange on which shares of Common Stock are then
trading, if any, or (ii) if the Common Stock is not traded on an exchange but
is quoted on NASDAQ or a successor quotation system, (1) the last sales price
(if the Common Stock is then listed as a National Market Issue under the NASD
National Market System) or (2) the mean between the closing representative
bid and asked prices (in all other cases) for the Common Stock as reported by
NASDAQ or such successor quotation system or (iii) if the Common Stock is not
publicly traded on an exchange and not quoted on NASDAQ or a successor
quotation system, the mean between the closing bid and asked prices for the
Common Stock.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, par value $1.00 per share,
of the Company.
"Contribution Agreement" has the meaning set forth in the recitals
to this Agreement.
"Demand Registration" has the meaning set forth in Section 3.2 (a)
hereof.
"Demand Registration Statement" has the meaning set forth in
Section 3.2 (a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchangeable LLC Units" means LLC Units which may be exchanged for
Common Stock pursuant to the LLC Agreement.
"Filing Date" has the meaning set forth in Section 2.1 hereof.
"Full Conversion Date" has the meaning set forth in Section 2.1
hereof.
"Holder" means any Person (including the Unitholder) 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 sale pursuant to a registration
statement under the Securities Act or pursuant to a transaction exempt from
registration under the Securities Act, in each such case where the security
sold in such transaction may be resold without subsequent registration under
the Securities Act.
"Issuance Registration Statement" has the meaning set forth in
Section 2.1.
"LLC Agreement" means the Amended and Restated Limited Liability
Company Agreement of the Operating LLC dated as of the date of this
Agreement, as the same may be amended, modified or restated from time to
time.
"LLC Units" has the meaning set forth in the LLC Agreement.
"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.
"Piggy-Back Registration Statement" means any registration
statement of the Company in which Registrable Securities are included
pursuant to Section 3.2 hereof.
"Registrable Securities" means shares of Common Stock of the
Company issued upon exchange of Exchangeable LLC Units pursuant to the terms
of the LLC Agreement at any time owned, either of record or beneficially, by
any Holder unless and until (i) a registration statement covering such shares
has been declared effective by the Commission and the shares have been issued
by the Company to Holder upon exchange of Exchangeable LLC Units pursuant to
the effective registration statement or have been sold or transferred by
Holder to another Person pursuant to the effective registration statement,
(ii) such shares are sold pursuant to the provisions of Rule 144 under the
Securities Act (or any similar provisions then in force) ("Rule 144"), (iii)
such shares are held by a Holder who is not an affiliate of the Company
within the meaning of Rule 144 (a "Rule 144 Affiliate") and may be sold
pursuant to Rule 144(k) under the Securities Act, (iv) such shares are held
by a Holder who is a Rule 144 Affiliate and all such shares may be sold
pursuant to Rule 144 within a period of three months in accordance with the
volume limitations set forth in Rule 144(e)(1), or (iv) such shares have been
otherwise transferred in a transaction that would constitute a sale under the
Securities Act and such shares may be resold without subsequent registration
under the Securities Act.
"Resale Prospectus" has the meaning set forth in Section 3.5.
"Resale Registration Statement" has the meaning set forth in
Section 3.5.
"Reinstatement Period" has the meaning set forth in Section 3.1.
"S-3 Expiration Date" means the date on which Form S-3 (or a
similar successor form of registration statement) is not available to the
Company for the registration of Registrable Securities pursuant to the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a Demand Registration Statement or a Piggyback
Registration Statement.
"Supplemental Rights Period" has the meaning set forth in Section
3.1.
ARTICLE II
REGISTRATION
SECTION 2.1. Registration Statement Covering Issuance of Common
Stock. Subject to the provisions of Article III hereof, the Company will
file with the Commission a registration statement on Form S-3 (the "Issuance
Registration Statement") under Rule 415 under the Securities Act covering the
issuance to Holders of shares of Common Stock in exchange for Exchangeable
LLC Units, such filing to be made within the two (2) week period following
the date (the "Filing Date") which is the later of (i) a date which is thirty
(30) days prior to the first date on which the Exchangeable LLC Units issued
pursuant to the Contribution Agreement may be exchanged for shares of Common
Stock pursuant to the provisions of the LLC Agreement or (ii) such other date
as may be required by the Commission pursuant to its interpretation of
applicable federal securities laws and the rules and regulations promulgated
thereunder. The Company shall use its reasonable efforts to cause the
Issuance Registration Statement filed with the Commission to be declared
effective by the first anniversary of the date of this Agreement. In the
event the Company is unable to cause the Issuance Registration Statement to
be declared effective by the Commission by the first anniversary of the date
of this Agreement, then the rights of the Holders set forth in Section 3.1
hereof shall apply to Common Stock received by Holders upon exchange of the
Exchangeable LLC Units for shares of Common Stock. Notwithstanding the
availability of rights under Section 3.1 hereof, the Company shall continue
to use its reasonable efforts to cause the Issuance Registration Statement to
be declared effective by the Commission and if it shall be declared effective
by the Commission, the obligations of the Company under Section 3.1 hereof
shall cease, except to the extent expressly provided in the first sentence of
Section 2.1. The Company agrees to use its reasonable efforts to keep the
Issuance Registration Statement continuously effective (a) until the earlier
of (i) the S-3 Expiration Date, or (ii) the first date (the "Full Conversion
Date") on which no Exchangeable LLC Units (other than those held by the
Company) remain outstanding, and (b) during any Reinstatement Period.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1. Registration Rights if Form S-3 is Not Available.
The following provisions shall apply with respect to Registrable
Securities during the period, if any, beginning on the S-3 Expiration Date
(or, if the S-3 Expiration Date shall occur before the first date on which
the Exchangeable LLC Units issued pursuant to the Contribution Agreement may
be exchanged for shares of Common Stock, beginning on such first date) and
ending on the date when the Company would no longer be obligated to maintain
the applicable registration statement in effect pursuant to the terms of
Section 2.1 if the S-3 Expiration Date had not occurred (the "Supplemental
Rights Period"), provided, however, that the Supplemental Rights Period shall
not include any period following the S-3 Expiration Date and prior to the
Full Conversion Date if during that period (the "Reinstatement Period") the
Company shall again be entitled to use Form S-3 or a similar successor form
of registration statement) for registration of the Registrable Securities.
During the Supplemental Rights Period, the Holders shall have the following
rights:
(a) Demand Right. Holders may make a written demand for
registration under the Securities Act of all or part of the Registrable
Securities (a "Demand Registration") and upon such demand the Company shall
be obligated to register such Registrable Securities under the Securities Act
in accordance with the provisions of this Agreement; provided, however, that
(i) the Company shall not be obligated to effect more than one Demand
Registration for Holders in any twelve month period, and (ii) the number of
Registrable Securities proposed to be sold by the Holders making such written
request either (i) shall be all the Registrable Securities owned by all
holders of Registrable Securities, or (ii) shall have an estimated market
value at the time of such request (based upon the then market price of a
share of Common Stock) of at least $1,000,000. The Company shall file any
registration statement required by this Section 3.1(a) (a "Demand
Registration Statement") with the SEC within thirty (30) days of receipt of
the requisite Holder demand and shall use its reasonable efforts to cause the
Demand Registration Statement to be declared effective by the SEC as soon as
practicable thereafter. The Company shall use its reasonable efforts to keep
each such Demand Registration Statement continuously effective for a period
of ninety (90) days, unless the offering pursuant to the Demand Registration
Statement is an underwritten offering and the managing underwriter requires
that the Demand Registration Statement be kept effective for a longer period
of time, in which event the Company shall maintain the effectiveness of the
Demand Registration Statement for such longer period up to one hundred twenty
(120) days (such period, in each case, to be extended by the number of days,
if any, during which Holders were not permitted to make offers or sales under
the Demand Registration Statement by reason of Section 3.3 hereof). The
Company may elect to include in any Demand Registration Statement additional
shares of Common Stock to be issued by the Company , subject, in the case of
an underwritten secondary Demand Registration, to cutback by the managing
underwriters. A registration shall not constitute a Demand Registration
under this Section 3.1(a) until the Demand Registration Statement has been
declared effective.
(b) Piggyback Rights. If the Company at any time during the
Supplemental Rights Period proposes to file a registration statement under
the Securities Act with respect to an offering of shares of Common Stock for
its own account or for the account of any holders of shares of its Common
Stock, in each case solely for cash (other than an Issuance Registration
Statement or a registration statement (i) on Form S-8 or any successor form
to Form S-8 or in connection with any employee or director welfare, benefit
or compensation plan, (ii) in connection with an exchange offer or an
offering of securities exclusively to existing security holders of the
Company or its subsidiaries or (iii) relating to a transaction pursuant to
Rule 145 of the Securities Act), the Company shall give written notice of the
proposed registration to the record owners of Registrable Securities at least
twenty (20) days prior to the filing of the registration statement. The
Holders of Registrable Securities shall have the right to request that all or
any part of the Registrable Securities be included in the registration by
giving written notice to the Company within ten (10) days after the giving of
the foregoing notice by the Company; provided, however, (A) if the
registration relates to an underwritten primary offering on behalf of the
Company and the managing underwriters of the offering determine in good faith
that the aggregate amount of securities of the Company which the Company,
Holders of Registrable Securities and holders of other piggyback registration
rights propose to include in the registration statement exceeds the maximum
amount of securities that could practicably be included therein, the Company
will include in the registration, up to such maximum amount, first, the
securities which the Company proposes to sell, and second, pro rata, the
Registrable Securities and the securities proposed to be included by any
holders of other piggyback registration rights, and (B) if the registration
is an underwritten secondary registration on behalf of any of the other
security holders of the Company (the "Secondary Offering Security Holders")
and the managing underwriters determine in good faith that the aggregate
amount of securities which the Holders of Registrable Securities, the
Secondary Offering Security Holders and the holders of other piggyback
registration rights propose to include in the registration exceeds the
maximum amount of securities that could practicably be included therein, the
Company will include in the registration, up to such maximum amount, first,
the securities to be sold for the account of the Secondary Offering Security
Holders, and second, pro rata, the Registrable Securities and the securities
proposed to be included by any holders of other piggyback registration
rights. (It is understood, however, that the underwriters shall have the
right to terminate entirely the participation of the Holders of Registrable
Securities if the underwriters eliminate entirely the participation in the
registration of all the other holders electing to include securities in the
registration (other than the Company and the Secondary Offering Security
Holders) because it is not practicable to include such securities in the
registration.) If the registration is not an underwritten registration, then
all of the Registrable Securities requested to be included in the
registration shall be included. Registrable Securities proposed to be
registered and sold pursuant to an underwritten offering for the account of
the Holders of Registrable Securities shall be sold to prospective
underwriters selected by such Holders and approved by the Company and on the
terms and subject to the conditions of one or more underwriting agreements
negotiated between the Company, the Secondary Offering Security Holders, the
Holders of Registrable Securities and any other holders demanding
registration and the prospective underwriters. Registrable Securities need
not be included in any registration statement pursuant to this provision if
in the opinion of counsel to the Company reasonably acceptable to the record
owners of Registrable Securities (a copy of which opinion is delivered to
such record owners) registration under the Securities Act is not required for
public distribution of the Registrable Securities. The Company shall have
the right to terminate or withdraw any registration initiated by it under
this Section 2.2(b) prior to the effectiveness of the registration statement
whether or not any holder has elected to include any Registrable Securities
in the registration statement.
(c) Company Repurchase. Upon receipt by the Company of a
registration request pursuant to this Section 3.1, the Company may, but will
not be obligated to, purchase for cash from any Holder so requesting
registration all, but not less than all, of the Registrable Securities which
are the subject of the request at a price per share equal to the average of
the Closing Prices of a share of Common Stock for the ten (10) trading days
immediately preceding the date of receipt by the Company of the registration
request. In the event the Company elects to purchase the Registrable
Securities which are the subject of a registration request, the Company shall
notify the Holder within five Business Days of the date of receipt of the
request by the Company, which notice shall indicate (i) that the Company will
purchase for cash the Registrable Securities held by the Holder which are the
subject of the request, (ii) the price per share, calculated in accordance
with the preceding sentence, which the Company will pay the Holder and (iii)
the date upon which the Company shall purchase the Registrable Securities,
which date shall not be later than the tenth business day after receipt of
the registration request. If the Company so elects to purchase the
Registrable Securities which are the subject of a registration request, then
upon such purchase the Company shall be relieved of its obligations under
this Section with respect to such Registrable Securities.
SECTION 3.2. Additional Registration Procedures.
In connection with any registration statement covering Registrable
Securities filed by the Company pursuant to Section 2.1 or 3.1 hereof:
(a) Each Holder agrees to provide in a timely manner
information requested by the Company regarding the proposed distribution by
that Holder of the Registrable Securities and all other information
reasonably requested by the Company in connection with the preparation of the
registration statement covering the Registrable Securities..
(b) In connection with any Demand Registration Statement or
Piggyback Registration Statement, the Company will furnish to each Selling
Holder of Registrable Securities that number of copies of the registration
statement or prospectus in conformity with the requirements of the Securities
Act and such other documents as the Selling Holder may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by
the Selling Holder.
(c) After the filing of the registration statement, the
Company will promptly notify each Selling Holder of Registrable Securities
covered by the 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) In connection with any Demand Registration Statement or
Piggyback Registration Statement, the Company will use reasonable efforts to
register or qualify the Registrable Securities under such securities or blue
sky laws of those 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 the Selling Holder's intended plan of
distribution) requests, provided, however, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction.
(e) In connection with any Demand Registration Statement or
Piggyback Registration Statement, the Company will enter into customary
agreements (including an underwriting agreement, if any, in customary form)
as are reasonably required in order to expedite or facilitate the disposition
of Registrable Securities pursuant to the Demand Registration Statement or
Piggyback Registration Statement. Each Selling Holder participating in an
underwritten offering shall also enter into and perform its or his
obligations under the underwriting agreement.
(f) The Company will use its reasonable 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.
SECTION 3.3. Material Developments; Suspension of Offering.
(a) Notwithstanding the provisions of Sections 2.1 or 3.1
hereof or any other provisions of this Agreement to the contrary, the Company
shall not be required to file a registration statement or to keep any
registration statement effective if the negotiation or consummation of a
transaction by the Company or any of its subsidiaries is pending or an event
has occurred, which negotiation, consummation or event would require
additional disclosure by the Company in the registration statement of
material information which the Company (in the judgment of management of the
Company) has a bona fide business purpose for keeping confidential and the
nondisclosure of which in the registration statement might cause the
registration statement to fail to comply with applicable disclosure
requirements; provided, however, that the Company (i) will promptly notify
the Holders of Registrable Securities otherwise entitled to registration of
the foregoing and (ii) may not delay, suspend or withdraw the registration
statement for such reason more than twice in any twelve (12) month period or
three times in any twenty-four (24) month period or for more than ninety (90)
days at any time. Upon receipt of any notice from the Company of the
happening of any event during the period the registration statement is
effective which is of a type specified in the preceding sentence or as a
result of which the registration statement or related prospectus contains any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statement therein, in
light of the circumstances under which they were made not misleading, Holders
agree that they will immediately discontinue offers and sales of the
Registrable Securities under the registration statement (until they receive
copies of a supplemental or amended prospectus that corrects the
misstatements or omissions and receive notice that any post-effective
amendment has become effective). If so directed by the Company, Holders will
deliver to the Company any copies of the prospectus covering the Registrable
Securities in their possession at the time of receipt of such notice. In the
event the Company shall give notice of the happening of an event of the kind
described in this Section 3.3(a), the Company shall extend the period during
which the affected registration statement is required to be maintained
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of notice pursuant to this Section 3.3(a) to
the date when the Company shall make available a prospectus supplemented or
amended to conform with the requirements of the Securities Act.
(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 Securities Act, upon written notice
thereof by the Company to the Holders, the rights of the Holders to acquire
Registrable Securities pursuant to the Issuance Registration Statement or to
offer, sell or distribute any Registrable Securities pursuant to any Demand
Registration Statement or Piggyback Registration Statement or to require the
Company to take action with respect to the registration of any Registrable
Securities pursuant to this Agreement 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 Issuance
Registration Statement, the Demand Registration Statement or the Piggyback
Registration Statement and the Company shall notify the Holders as promptly
as practicable when such suspension is no longer required.
SECTION 3.4. 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 (the "Registration Expenses"): (i) all
registration and filing fees, (ii) fees and expenses of compliance with
securities or blue sky laws, (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) fees and disbursements of counsel for the Company and the
independent public accountants of the Company, and (vii) the fees and
expenses of any experts retained by the Company in connection with such
registration. The Holders shall be responsible for the payment of any and
all other expenses incurred by them in connection with the registration and
sale of Registrable Securities, including, without limitation, brokerage and
sales commissions, underwriting fees, discounts and commissions attributable
to the Registrable Securities, fees and disbursements of counsel representing
the Holder, and any transfer taxes relating to the sale or disposition of the
Registrable Securities.
SECTION 3.5. Indemnification by the Company.
The Company agrees to indemnify and hold harmless each Selling
Holder, 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 Demand
Registration Statement or Piggyback Registration Statement (individually, a
"Resale Registration Statement") or the 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, or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any prospectus contained in
a Resale Registration Statement at the time it became effective (a "Resale
Prospectus"), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by such Selling Holder or on
such Selling Holder's behalf expressly for inclusion therein; provided,
however, that the Company will not be liable in any case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based
upon any untrue statement or omission contained in a Resale Prospectus which
was corrected in a supplement or amendment thereto if such claim is brought
by a purchaser of Registrable Securities from the Selling Holder and the
Selling Holder failed to deliver to such purchaser the supplement or
amendment to the Resale Prospectus in a timely manner.
SECTION 3.6. Indemnification by Holders of Registrable Securities.
Each Selling Holder of Resale Registrable Securities covered by a
Registration Statement agrees 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 indemnity set forth
in Section 3.6 from the Company to Selling Holders, 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
Resale Registration Statement or Resale Prospectus or any amendment or
supplement thereto. Each 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 3.7.
SECTION 3.7. Conduct of Indemnification Proceedings.
Each indemnified party shall give reasonably prompt notice to each
indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
the indemnifying party (i) shall not relieve it from any liability which it
may have under the indemnity agreement provided in Section 3.5 or 3.6 above,
unless and to the extent it did not otherwise learn of such action and the
lack of notice by the indemnified party results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in
any event, relieve the indemnifying party from any obligations to the
indemnified party other than the indemnification obligation provided under
Section 3.5 or 3.6 above. If the indemnifying party so elects within a
reasonable time after receipt of notice, the indemnifying party may assume
the defense of the action or proceeding at the indemnifying party's own
expense with counsel chosen by the indemnifying party and approved by the
indemnified party, which approval shall not be unreasonably withheld;
provided, however, that if the defendants in any such action or proceeding
include both the indemnified party and the indemnifying party and the
indemnified party reasonably determines based upon advice of legal counsel
experienced in such matters, that there may be legal defenses available to it
which are different from or in addition to those available to the
indemnifying party, then the indemnified party shall be entitled to separate
counsel at the indemnifying party's expense, which counsel shall be chosen by
the indemnified party and approved by the indemnifying party, which approval
shall not be unreasonably withheld; provided further, that it is understood
that the indemnifying party; shall not be liable for the fees, charges and
disbursements of more than one separate firm. If the indemnifying party does
not assume the defense, after having received the notice referred to in the
first sentence of this Section, the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party; in that
event, however, the indemnifying party will not be liable for any settlement
effected without the written consent of the indemnifying party. If an
indemnifying party assumes the defense of an action or proceeding in
accordance with this Section, the indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified party incurred
thereafter in connection with that action or proceeding except as set forth
in the proviso in the second sentence of this Section 3.7. Unless and until
a final judgment is rendered that an indemnified party is not entitled to the
costs of defense under the provisions of this Section, the indemnifying party
shall reimburse, promptly as they are incurred, the indemnified party's costs
of defense.
SECTION 3.8. Contribution.
(a) If the indemnification provided for in Section 3.5 or 3.6
hereof is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by indemnified party as a result of
such losses, claims, damages or liabilities 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 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.
(b) The Company and the Selling Holders agree that it would not be
just and equitable if contribution pursuant to this Section 3.8 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in Section
3.8(a). The amount paid or payable by an indemnifying party as a result of
the losses, claims, damages or liabilities referred to in Sections 3.5 and
3.6 hereof shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 3.8 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.
SECTION 3.9. Participation in Underwritten Registrations.
No Holder may participate in any underwritten registration
hereunder unless the Holder (a) agrees to sell his or its Registrable
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 as
reasonably required under the terms of such underwriting arrangements.
SECTION 3.10. Holdback Agreements.
Each Holder whose securities are included in a Demand Registration
Statement or Piggyback Registration Statement agrees not to effect any sale
or distribution of the securities registered or any similar security of the
Company, or any securities convertible into or exchangeable or exercisable
for such securities, including a sale pursuant to Rule 144 under the
Securities Act, during the 14 days prior to, and during the 60-day period
beginning on, the effective date of such registration statement (except as
part of such registration), if and to the extent requested in writing by the
Company in the case of a non-underwritten public offering or if and to the
extent requested in writing by the managing underwriter or underwriters in
the case of an underwritten public offering.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Specific Performance.
The parties hereto acknowledge that there would be no adequate
remedy at law if any party fails to perform any of its obligations hereunder,
and accordingly agree that each party, 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 obligation of any other 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,
SECTION 4.2. 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 holding at least two-
thirds (2/3) of the then outstanding Registrable Securities and Exchangeable
LLC Units (other than Exchangeable LLC Units held by the Company). 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 4.3. Notices.
Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given (a) when delivered
by hand or upon transmission by telecopier or similar facsimile transmission
device, (b) on the date delivered by a courier service, or (c) on the third
Business Day after mailing by registered or certified mail, postage prepaid,
return receipt requested, in any case addressed as follows:
(1) if to any Holder, to Jean-Claude Saada, 1700 Pacific Avenue,
49th Floor, Dallas, Texas 75201, or to such other address and to such other
Persons as the Holders may hereafter notify the Company in writing; and
(2) if to the Company, to Health Care Property Investors, Inc.,
4675 MacArthur Court, Suite 900, Newport Beach, California 92660 (Attention:
Edward J. Henning), or to such other address as the Company may hereafter
specify in writing.
SECTION 4.4. Successors and Assigns.
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, the Holders and
their respective successors and assigns.
SECTION 4.5. 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.
SECTION 4.6. 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
conflicts of law provisions thereof.
SECTION 4.7. 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 4.8. 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. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter of this
Agreement.
SECTION 4.9. Headings.
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Agreement.
SECTION 4.10. Selling Holders Become Party to this Agreement.
By asserting or participating in the benefits of registration of
Registrable Securities pursuant to this Agreement, each Holder agrees that it
or he will be deemed a party to this Agreement and be bound by each of its
terms.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
HEALTH CARE PROPERTY INVESTORS, INC.,
a Maryland corporation
By:
Name:
Its:
CAMBRIDGE MEDICAL CENTER
OF SAN DIEGO, LLC
a California limited liability company
By: 8008 Frost, Inc., its Managing Member
By:__________________________________
Jean-Claude Saada
President