Exhibit 4.9
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of January
20, 1999, is entered into by and between Health Care Property
Investors, Inc., a Maryland corporation (the "Company"), and the
parties identified on the signature page hereof as "Unitholders"
(collectively, the "Unitholders").
RECITALS
WHEREAS, the Company, the Unitholders and HCPI/Utah,
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
Unitholders 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 1
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, Los
Angeles, California or Salt Lake City, Utah 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.
"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 a 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 2
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 fourteen (14) 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 Commission as soon as practicable following the filing, and
within sixty (60) days after 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 3
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 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 give written
notice of the proposed filing of the Demand Registration
Statement to the Holders of Registrable Securities as soon as
practicable (but in no event less than ten (10) days before the
anticipated filing date), and such notice shall offer such
Holders the opportunity to participate in such Demand
Registration and to register such number of shares of Registrable
Securities as each such Holder may request. 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. The Company shall use its
commercially reasonable efforts to cause, but shall not be
obligated to cause, the managing Underwriter or Underwriters of a
proposed underwritten offering to permit the Registrable
Securities requested to be included in a piggy-back registration
to be included on the same terms and conditions as any similar
securities of the Company included therein. (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 the record owners of Registrable Securities)
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), 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.
(b) The Company will, if requested by any of the
Holders, prior to filing a registration statement or prospectus,
or any amendment or supplement thereto in connection with any
Demand Registration Statement or Piggyback Registration
Statement, furnish to each Selling Holder and each Underwriter,
if any, of the Registrable Securities covered by such
registration statement or prospectus copies of such registration
statement or prospectus or any amendment or supplement thereto as
proposed to be filed, and thereafter furnish to such Selling
Holder and Underwriter, if any, such number of conformed copies
of such registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto and
documents incorporated by reference therein), the prospectus
included in such registration statement (including each
preliminary prospectus) and such other documents as such Selling
Holder or Underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by
such Selling Holder.
(c) After the filing of the registration statement,
the Company will promptly notify each Selling Holder of
Registrable Securities covered by 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 shall cause all such Registrable
Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
(g) The Company will immediately notify each Selling
Holder of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statement therein, in light of the circumstances then existing,
not misleading and promptly make available to each Selling Holder
a reasonable number of copies of any such supplement or
amendment.
(h) The Company will make available for inspection by
any Selling Holder of such Registrable Securities, any
Underwriter participating in any disposition pursuant to such
Registrable Securities, any Underwriter participating in any
disposition pursuant to such registration statement and any
attorney, accountant or other professional retained by any such
Selling Holder or Underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as
shall be reasonably necessary to enable them to discharge their
due diligence responsibility under the Securities Act, and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any Inspectors in connection
with the discharge of their due diligence responsibility.
Records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless the
release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction. Each Selling
Holder of such Registrable Securities agrees that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company or its
Affiliates or otherwise disclosed by it unless and until such is
made generally available to the public. Each Selling Holder of
such Registrable Securities further agrees that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential.
(i) In connection with a disposition of the
Registrable Securities in which there is a participating
Underwriter or Underwriters, the Company will furnish to each
Selling Holder and to each Underwriter, a signed counterpart,
addressed to such Selling Holder or Underwriter, of (i) an
opinion or opinions of counsel to the Company and (ii) a comfort
letter or comfort letters from the Company's independent public
accountants (to the extent permitted by the standards of the
American Institute of Certified Public Accountants), each in
customary form and covering such matters of the type customarily
covered by opinions or comfort letters, as the case may be, as
the Holders of a majority of the Registrable Securities included
in such offering or the managing Underwriter or Underwriters
therefor reasonably requests.
(j) The Company will otherwise use its best efforts to
comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering a
period of twelve (12) months, beginning within three (3) months
after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission promulgated
thereunder (or any successor rule or regulation hereafter adopted
by the Commission).
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
(including the reasonable fees and expenses of counsel to the
Company), (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 Holders, 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, employees, representatives, 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,
actions, damages, liabilities, costs and expenses (including,
without limitation, but subject to the provisions of Section 3.7
hereof, reasonable attorneys' fees and disbursements 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 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.
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 4. 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:
(a) if to any Holder, to c/o The Boyer Company, L.C.,
127 South 500 East, Suite 310, Salt Lake City, Utah 84102, or to
such other address and to such other Persons as the Holders may
hereafter notify the Company in writing; and
(b) 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 (including
lenders in foreclosure).
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.
Section 4.11 Rule 144. The Company covenants that it
will file any reports required to be filed by it under the
Securities Act and the Exchange Act to the extent required from
time to time to enable Holders to sell Registrable Securities
without registration under the Securities Act within the
limitations of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder, the Company will
deliver to such Holder a written statement as to whether it has
filed such reports.
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
BOYER CASTLE DALE MEDICAL CLINIC,
L.L.C., a Utah limited liability
company
By: THE BOYER COMPANY, L.C.,
a Utah limited liability
company, its Managing Member
By: /s/ H. Roger Boyer
------------------------
H. Roger Boyer
Chairman and Manager