Exhibit 4.8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of
November 20, 1998, is entered into by and between Health Care
Property Investors, Inc., a Maryland corporation (the "Company"),
and James D. Bremner, an individual (the "Unitholder").
RECITALS
WHEREAS, the Company, HCPI/Indiana, LLC, a Delaware
limited liability company (the "Operating LLC") and certain other
parties named therein (the "Transferors") 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 Transferors to the
Operating LLC, the contribution of cash by the Company to the
Operating LLC and the issuance of LLC Units (as defined below) to
the designees, including Unitholder, of the Transferors; 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 3.1 (a) hereof.
"Demand Registration Statement" has the meaning set
forth in Section 3.1 (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.
"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 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 3.1 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 not later than 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. The
Company shall use its reasonable efforts to cause the Issuance
Registration Statement filed with the Commission to be declared
effective by the Commission as soon as practicable following the
filing. In the event the Company is unable to cause the Issuance
Registration Statement to be declared effective by the
Commission, then the rights of the Holders set forth in Sections
3.1 and 3.2 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. 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 30th day 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, beginning
on such 30th prior day) 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");
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
demand either (x) shall be all the Registrable Securities owned
by all Holders of all Registrable Securities or (y) shall have an
estimated market value at the time of such demand (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 Commission 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 Commission 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 forty five (45) 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 (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 3.1(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 demand pursuant to Section 3.1(a) or
3.1(b), 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 3.1 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. The Company will
provide the Holder with a copy of the portion of the registration
statement containing information provided by the Holder pursuant
to this Section 3.2(a) at least 48 hours in advance of the filing
of the registration statement containing such information with
the Commission.
(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) The Company will promptly notify each Selling
Holder of Registrable Securities covered by the registration
statement of the effectiveness of the registration statement and
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 3.5 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 severally, and not jointly with other Selling
Holders, 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 3.6. The
foregoing indemnification obligations shall be limited as to each
Selling Holder to the amount of the gross proceeds from the sale
by the respective Selling Holder of Resale Registrable Securities
covered by the Resale Registration Statement.
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 90-
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; Costs of
Enforcement.
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. The reasonable costs and expenses (including
reasonable attorneys fees) of the prevailing party in proceedings
commenced to enforce the provisions of this Agreement shall be
paid by the non-prevailing party in the proceedings.
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 c/o Bremner & Wiley, Inc.,
250 E. 96th St., Suite 150, Indianapolis, IN 46240, 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: /s/ Edward J. Henning
-----------------------
Name: Edward J. Henning
---------------------
Title: Senior Vice President
General Counsel and
Corporate Secretary
UNITHOLDER
/s/ James D. Bremner
------------------------------
James D. Bremner, an individual