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EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of this 20th day of June
1996, by and between Essex Property Trust, Inc., a Maryland corporation (the
"Company"), and Tiger/Westbrook Real Estate Fund, L.P., a Delaware limited
partnership, and Tiger/Westbrook Real Estate Co-Investment Partnership, L.P., a
Delaware limited partnership (collectively, and including any nominee or
nominees in whose name securities may be held, the "Investor").
RECITALS
WHEREAS, the Company and the Investor are parties to a Stock Purchase
Agreement, as amended on the date hereof (as amended, the "Stock Purchase
Agreement") of even date herewith relating to the purchase by Investor of
certain shares of the Company's 8.75% Convertible Preferred Stock, Series 1996A;
WHEREAS, in order to induce the Investor to invest funds in the Company
pursuant to the Stock Purchase Agreement and to induce the Company to enter into
the Stock Purchase Agreement, the Investor and the Company hereby agree that
this Agreement shall govern the rights of the Investor to cause the Company to
register shares of Preferred Stock and Common Stock issuable to the Investor
upon conversion of the Preferred Stock or otherwise as provided herein;
WHEREAS, the Company has entered into an amendment, of even date
herewith, a copy of which is attached hereto as Exhibit A-1, to that certain
Investor Rights Agreement dated as of June 13, 1994 (as amended, the "Existing
Investor Rights Agreement", a copy of which is attached hereto as Exhibit A-2),
between the Company and the investors party thereto (collectively, the "Existing
Rights Holders"), whereby the Existing Rights Holders have agreed their rights
thereunder shall be subordinated to the rights of the Investor hereunder;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definition. As used in this Agreement, the following:
1.1 The term "Common Stock" shall mean the Common Stock
of the Company, par value $.0001 per share.
1.2 The term "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.
1.3 The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.4 The term "NYSE" shall mean the New York Stock
Exchange.
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1.5 The terms "register," "registered," and
"registration: refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such registration
statement or document.
1.6 The term "Registrable Securities" means (i) the Preferred
Stock, (ii) Common Stock issuable or issued upon conversion of the Preferred
Stock and (iii) any Common Stock of the Company issued as a dividend or
distribution or issuable upon the conversion or exercise of any warrant, right
or other security which is issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, such Preferred Stock or
Common Stock; provided, however, that shares of Preferred Stock or such Common
Stock or other securities shall not be treated as Registrable Securities (A) if
such securities are sold by an entity or person in a transaction in which the
registration rights are not assigned, (B) if a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities have been disposed of in accordance with such
registration statement, (C) if such securities have been sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction pursuant to an effective registration statement or pursuant to Rule
144 ("Rule 144") under the Securities Act, or (D) if on the date of the proposed
sale, in the opinion of counsel to the Company such securities may be sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act so that all other restrictions and legends with respect
thereto are removed upon the consummation of such sale.
1.7 The term "Preferred Stock" shall mean the 8.75%
Convertible Preferred Stock, Series 1996A of the Company, par value $.0001 per
share.
1.8 The term "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time.
2. Requested Registration
2.1 Requested Registration. As to all but not less than all of
the Preferred Stock purchased by the Investor, at any time after the Investor
has completed its purchase of Preferred Stock under the Stock Purchase
Agreement, and with respect to shares of Common Stock that are Registrable
Securities under this Agreement only after the eight-month anniversary of the
date of this Agreement, and from time to time thereafter, if the Company shall
receive from the Investor on behalf of the Investor and the other holders of
Registrable Securities a written request for the Company to effect any
registration, qualification or compliance with respect to Registrable Securities
with respect to, if a requested registration of Preferred Stock (and underlying
Common Stock if necessary to permit the Preferred Stock to be registered in
accordance within the rules and regulations of the Commission), all of the
Preferred Stock then held by Investor and all other holders of Preferred Stock
(but at least $7,000,000 in expected aggregate offering price (as determined
based on the number of shares of Common Stock into which such Preferred Stock is
convertible and the highest closing price of the Common Stock on a public
exchange within five business days of such written request) to the public, net
of underwriters' discounts and commissions), and, if a requested registration of
Common Stock, no
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less than 25% of the Registrable Securities (but at least $7,000,000 in expected
aggregate offering price (as determined based on the highest closing price of
the Common Stock on a public exchange within five business days of such written
request) to the public, net of underwriters' discounts and commissions) then
held by the Investor, the Company will use its best efforts to effect all such
registrations, qualifications and compliances within 120 days of such request
(including, without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualification under the applicable blue
sky or other state securities laws and appropriate compliance with regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as would permit or facilitate the sale
and distribution of such Investor's Registrable Securities as are specified in
such request; provided that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
this Section 2:
(a) other than with respect to Registrable
Securities;
(b) in an particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(c) if the Company has already effected one
registration for the Investor pursuant to this Section during the immediately
preceding twelve-month period; or
(d) if at the time of the request to register
Registrable Securities the Company gives notice within 30 days of such request
that it is engaged, or has fixed plans to engage within 60 days of the time of
the request, in a registered public offering as to which the Investor may
include Registrable Securities pursuant to Section 5 and provided that the
Company may not exercise this right more than once in any twelve-month period.
2.2 Underwriting. If the Investor intends to distribute the
Registrable Securities covered by its request by means of an underwritten public
offering, it shall so advise the Company and the Investor shall designate the
underwriter to be considered as the lead underwriter to be employed in
connection therewith subject to the approval of the Company, which approval
shall not be unreasonably withheld or delayed. The Company shall (together with
the Investor if legally required) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 2.2, if the
underwriter (in an underwritten offering in which such securities are to be
distributed by or through one or more underwriters of recognized standing under
underwriting terms customary for such transactions) advises the Company and the
Investor in writing that, in its belief the amount of securities requested to be
included in such registration or offering exceeds the amount which can be sold
in (or during the time of) such offering without delaying or jeopardizing the
success of the offering (but not including adjustments to the price per share of
such securities to be sold, which shall remain in the sole discretion of the
Investor) the number of Registrable Securities of the Investor to be included in
the registration and underwriting shall be reduced as such underwriter, the
Investor and the Company may agree. If the Investor disapproves of the terms of
any such underwriting, the Investor may elect to withdraw therefrom
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by written notice to the Company and the underwriter. The Registrable Securities
so withdrawn shall also be withdrawn from registration.
If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account or the account of others in such registration if the underwriter so
agrees and if the number of Registrable Securities which would otherwise have
been included in such registration and underwriting will not thereby be limited,
and, in the reasonable belief of such underwriter, if the per share sales price
for the Registrable Securities will not thereby be materially and adversely
affected.
3. Shelf Registration.
3.1 Shelf Registration; Obligation to File and Maintain. As to
all but not less than all of the Preferred Stock purchased by the Investor, at
any time after the Investor has completed its purchase of Preferred Stock under
the Stock Purchase Agreement, and, with respect to any shares of the Common
Stock that are Registrable Securities under this Agreement only at any time
after the eight-month anniversary of the date of this Agreement, and from time
to time thereafter, promptly upon the written request of the Investor, the
Company will use its best efforts to file with the Commission a registration
statement or statements under the Securities Act for the offering on a
continuous or delayed basis in the future of Registrable Securities in such
amount and type as aforesaid (collectively, the "Shelf Registration"). The Shelf
Registration shall be on an appropriate form and the Shelf Registration and any
form of prospectus included therein or prospectus supplement relating thereto
shall reflect such plan of distribution or method of sale as the Investor may
from time to time notify the Company, including the sale of some or all of the
Registrable Securities in a public offering or, if requested by the Investor,
subject to receipt by the Company of such information (including information
relating to purchasers) as the Company reasonably may require, (i) in a
transaction constituting an offering outside the United States which is exempt
from the registration requirements of the Securities Act in which the Company
undertakes to effect registration of such shares as soon as possible after the
completion of such offering in order to permit such shares freely to be
tradeable in the United States, (ii) in a transaction constituting a private
placement under Section 4(2) of the Securities Act in connection with which the
Company undertakes to register such shares after the conclusion of such
placement to permit such shares freely to be tradeable by the purchasers
thereof, or (iii) in a transaction under Rule 144A of the Securities Act in
connection with which the Company undertakes to register such shares after the
conclusion of such transaction to permit such shares freely to be tradeable by
the purchasers thereof. The Company shall use its best efforts to keep the Shelf
Registration continuously effective for the period beginning on the date on
which the Shelf Registration is declared effective and ending on the first date
that there are no Registrable Securities (provided that the Company may
terminate the effectiveness of a Shelf Registration on the second anniversary of
the date of effectiveness thereof plus a number of days equal to the number of
days in all Registration Suspension Periods relating to such Shelf
Registration). During the period during which the Shelf Registration is
effective, the Company shall supplement or make amendments to the Shelf
Registration, if required by the Securities Act or if reasonably requested by
the Investor or an underwriter of Registrable Securities, including to reflect
any specific plan or distribution or method of sale, and shall use its
reasonable best efforts to have such supplements and amendments declared
effective, if required, as soon as practicable after filing.
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Once any registration statement filed pursuant to this Section
3 has been declared effective, any period during which the Company fails to keep
such registration statement effective and usable for resale of Registrable
Securities for the period required by Section 7(b) shall be referred to as a
"Registration Suspension Period." A Registration Suspension Period shall
commence on and include the date that the Company gives written notice to the
Investor of its determination that such registration statement is no longer
effective or usable for resale of Registrable Securities (the "Suspension
Notice") to and including the date when the Company notifies the Investor that
the use of the prospectus included in such registration statement may be resumed
for the disposition of Registrable Securities.
3.2 Minimum. The Company shall not be required to comply with a
request by the Investor pursuant to Section 3, except to the extent that the
Registrable Securities to be included in any such registration statement
aggregate at least $7,000,000 in expected offering price to the public as
determined based on the highest closing price of the Common Stock on a public
exchange within five business days of such written request, net of underwriters'
discounts and commissions or are such lesser amount of Registrable Securities as
shall constitute all of the Registrable Securities then outstanding. The
obligations of the Company under this Section 3 shall terminate if the Investor
and its assignees hereunder do not hold at least the lesser of (i) 200,000
shares of Preferred Stock (or such number of shares of Common Stock as shall
have resulted from a conversion thereof)(subject to adjustment to give effect to
stock splits, stock dividends and other similar transactions occurring after the
date hereof) or (ii) 12.5% of the total amount of shares of Preferred Stock that
the Investor purchases pursuant to the Stock Purchase Agreement.
3.3 Underwriting. Any and all underwriters or other agents
involved in any sale of Registrable Securities pursuant to a registration
statement contemplated by this Section 3 shall include such underwriter(s) or
other agent(s) as selected by the Investor and approved of by the Company, which
approval shall not be unreasonably withheld or delayed.
4. Delay of Registration. If the Company shall furnish to the Investor a
certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for a registration statement
required under Section 2 or 3 to be filed on or before the date filing would be
required and it is therefore essential to defer the filing of such registration
statement, then the Company may direct that such request for registration be
delayed for a period not in excess of 60 days, such right to delay a request to
be exercised by the Company not more than once in any twelve-month period.
5. Company Registration.
5.1 Notice of Registration. The Investor will have no rights
under this Section 5 until the first anniversary of the date of this Agreement.
From time to time thereafter, if the Company shall register (or shall determine
to issue under a shelf registration statement already on file) any of its Common
Stock (or any other security junior to the Preferred Stock), either for its own
account or the account of a security holder or holders (other than the
Investor), other than a registration (i) relating to employee stock option or
purchase plans, (ii) relating to a
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transaction pursuant to Rule 145 under the Securities Act, (iii) pursuant to a
registration form which does not include substantially the same information as
would be required to be included in a registration statement covering the sale
of Common Stock or (iv) of primary shares of Common Stock by the Company on a
form that does not permit both primary and secondary shares to be included in
the same registration statement, the Company will:
(a) promptly give to the Investor written notice
thereof; and
(b) include in such registration and in any
underwriting involved therein, all shares of the Common Stock that are
Registrable Securities under this Agreement specified in a written request, made
within 20 days after receipt of such written notice from the Company, by the
Investor.
5.2 Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Investor as a part of the written notice given
pursuant to Section 5.1, the right of the Investor to registration pursuant to
Section 5 shall be conditioned upon such Investor's participation in such
underwriting and the inclusion of such Investor's Registrable Securities in the
underwriting to the extent provided herein. The Investor shall (together with
the Company and other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 5.2, if the underwriter
advises the Company in writing that marketing factors require a limitation of
the number of shares to be underwritten, the number of Registrable Securities of
the Investor to be included in the registration and underwriting shall be
reduced provided that the shares of other holders of securities of the Company
included in the registration and underwriting shall be reduced prior to any
reduction in the number of shares of Registrable Securities of the Investor that
may be included in the registration and underwriting. The Registrable Securities
so withdrawn shall also be withdrawn from registration.
6. Expenses of Registration. All expenses incurred in connection with
any registration, qualification or compliance pursuant to this Agreement,
including without limitation, all registration, filing and qualification fees,
printing expenses, fees and disbursements of counsel for the Company, expenses
of any special audits incidental to or required by such registration,
qualification or compliance and the reasonable fees and disbursements of one
counsel for the Investor shall be borne by the Company. The Company shall not be
required to pay underwriters' discounts, commissions, or stock transfer taxes
relating to Registrable Securities.
7. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement
in which the Investor is participating, the Company will keep the Investor
advised in writing as to the initiation of each registration, qualification and
compliance and as to the completion thereof. At its expense (except as otherwise
provided in Section 6 above), the Company will:
(a) prepare and file with the Commission the
requisite registration statement (including a prospectus therein) to effect such
registration and use its best efforts to
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cause such registration statement to become effective, provided that before
filing such registration statement or any amendments or supplements thereto, the
Company will furnish to Investor and counsel selected by Investor copies of all
documents required to be filed, which documents will be subject to review by
such counsel before such filing is made, and the Company will comply with any
reasonable request made by such counsel to make changes to any information
contained in such filing or in such documents relating to Investor;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to maintain the effectiveness
of such registration and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement until, in the case of Section 2, the earlier of such time as all of
such securities have been disposed of and the date which is 180 days after the
date of initial effectiveness of such registration statement, or in the case of
Section 3, the termination of the period during which the Shelf Registration is
required to be kept effective;
(c) furnish to the Investor and to the underwriters
of the securities being registered such number of copies of the registration
statement, preliminary prospectus, final prospectus and other documents incident
thereto as such underwriters and the investor from time to time may reasonably
request;
(d) use its best efforts to register or qualify the
securities covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such the Investor may reasonably request,
and keep such registration or qualification in effect for so long as such
registration statement remains in effect;
(e) enter into a written underwriting agreement in
customary form and substance reasonably satisfactory to the Company, the
Investor and the managing underwriter or underwriters of the public offering of
such securities, if the offering is to be underwritten, in whole or in part;
(f) notify the Investor, at any time when a
prospectus relating thereto covered by such registration statement is required
to be delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing and, at
the request of Investor properly prepare and furnish to Investor a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made;
(g) furnish, at the request of the Investor, if the
Investor is requesting registration of Registrable Securities pursuant to this
Agreement, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration
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pursuant to this Agreement, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the registration statements with respect to such securities
becomes effective, (i) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Investor, reasonably satisfactory in
form and substance to the Investor, and (ii) a letter dated such date, from the
independent certified public accountants of the Company, who have certified the
Company's financial statements included in such registration statement; covering
substantially the same matters with respect to such registration statement (and
the prospectus contained therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such financial statements, all
as are customarily covered as opinions of various counsel and in accountants'
"comfort" letters delivered to underwriters in underwritten public securities
offerings;
(h) list all Registrable Securities covered by such
registration statement on the NYSE or such other securities exchange as may be
mutually agreed upon by the parties and such securities exchange;
(i) provide a transfer agent and registrar for all
Registrable Securities covered by such registration statement not later than the
effective date of such registration statement;
(j) comply or continue to comply in all material
respects with the Securities Act and the Exchange Act and 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 the
period of at least 12 months, but not more than 18 months, beginning with the
first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act, and not file any amendment or supplement to such
registration statement or prospectus to which the Investor shall have reasonably
objected on the grounds that such amendment or supplement to such registration
statement or prospectus to which the Investor shall have reasonably objected on
the grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act, having been furnished with
a copy thereof at the earliest practicable date; and
(k) in connection with preparation and filing of a
registration statement under the Securities Act, furnish to the Investor, its
underwriters, if any, and their respective counsel, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein as filed with the Commission, and each amendment thereof or
supplement thereto, and shall give each of them access to its books and records
and such opportunities to discuss the business of the Company with its officers,
its counsel and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of Investor's and
such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
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The Company shall also have the obligations with regard to
listing of Preferred Stock as specified in the Stock Purchase Agreement.
The parties anticipate that any registration pursuant to this
Agreement shall be a registration on Form S-3 (or a substantially equivalent
registration form under the Securities Act subsequently adopted by the
Commission that permits inclusion or incorporation by reference to other
documents filed by the Company with the Commission), but agree that should Form
S-3 not be available to the Company such unavailability does not alter the
rights of the Investor or the obligations of the Company hereunder.
8. Indemnification.
8.1 Indemnification by the Company. In the event of any
registration of any Registrable Securities pursuant to this Agreement under the
Securities Act, the Company will, and hereby does, indemnify and hold harmless
Investor, each other person who participates as an underwriter in the offering
or sale of such securities and each other person who controls any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which Investor or any such
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Registrable Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and the Company will reimburse Investor and each such
underwriter and controlling person for any reasonable legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceedings; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by Investor or any other
person who participates as an underwriter in the offering or sale of such
securities, in either case, specifically stating that it is for use in the
preparation thereof, and provided, further, that the Company shall not be liable
to any person who participates as an underwriter in the offering or sale of
Registrable Securities or any other person, if any, who controls such
underwriter within the meaning of the Securities Act in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such person's failure to send or give
a copy of the final prospectus or supplement to the persons asserting an untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such person if such
statement or omission was corrected in such final prospectus or supplement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf
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of Investor or any such underwriter or controlling person and shall survive the
transfer of such securities by Investor.
8.2 Indemnification by Investor. The Company may require, as a
condition to including any Registrable Securities in any registration statement,
that the Company shall have received an undertaking satisfactory to it from
Investor to indemnify and hold harmless (in the same manner and to the same
extent as set forth in paragraph (a) of this Section 8) the Company, each
director of the Company, each officer of the Company and each other person, if
any, who controls the Company within the meaning of the Securities Act, and each
other person who participates as an underwriter in the offering or sale of such
securities and each other person who controls any such underwriter within the
meaning of the Securities Act with respect to any untrue statement or alleged
untrue statement of a material fact in or omission or alleged omission to state
a material fact from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by Investor specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer, or controlling person and shall survive the transfer of such securities
by Investor.
8.3 Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the proceeding paragraphs of this Section 8,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligation under the preceding paragraphs of this Section 8, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation.
8.4 Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Section 8 (with appropriate
modifications) shall be given by the Company and Investor with respect to any
required registration or other qualification or securities under any federal or
state law or regulation of any governmental authority other than under the
Securities Act.
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8.5 Indemnification Payments. The indemnification required by
this Section 8 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
8.6 Contribution. If, for any reason, for the foregoing
indemnity is unavailable, or is insufficient to hold harmless an indemnified
party, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of the expense, loss, damage or
liability, (i) in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other (determined by reference to, among other things, whether the untrue or
alleged statement of a material fact or omission relates to information supplied
by the indemnifying party on the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission), or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in the proportion as
is appropriate to reflect not only the relative fault of the indemnifying party
and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, as
well as any other relevant equitable considerations. No indemnified party guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.
9. Information by Investor. If the Investor's Registrable
Securities are included in any registration, the Investor shall furnish to the
Company such information regarding the Investor and the distribution proposed by
the Investor as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
10. Reporting. With a view to making available to the Investor the
benefits of certain rules and regulations of the Commission which may permit the
sale of Registrable Securities to the public without registration or through
short form registration forms the Company agrees to:
(a) use its best efforts to make and keep public
information available, as those terms are understood and defined in Rule 144
under the Securities Act, at all times;
(b) use its best efforts to file with the Commission
in a timely manner all reports and other documents required to the Company under
the Securities Act and the Securities Exchange Act; and
(c) furnish to the Investor, so long as the Investor
owns any Registrable Securities, forthwith upon written request a written
statement by the Company that it has complied with the reporting requirements of
said Rule 144, the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as the Investor may reasonably request in
availing itself of any rule or regulation of the Commission permitting the
Investor to sell any such securities without registration.
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11. Transfer of Registration Rights. The rights to cause the
Company to register securities granted by the Company hereunder may be assigned
or otherwise conveyed to a transferee or assignee of Registrable Securities;
provided that (i) only the Investor may request, on behalf of itself and other
holders of Registrable Securities, registration pursuant to this Agreement, (ii)
such transfer is effected in accordance with applicable federal and state
securities laws, (iii) such transferee or assignee becomes a party to this
Agreement or agrees in writing to be subject to the terms hereof to the same
extent as if it were the Investor hereunder, and (iv) the Company is given
written notice by the Investor of said transfer, stating the name and address of
said transferee and identifying the securities with respect to which such
registration rights are being assigned.
12. Delivery of Shares. The Company agrees that any time after the
Company delivers to the Investor an opinion of counsel to the Company
(reasonably satisfactory to Investor) or Investor arranges for the delivery to
the Company of an opinion of counsel (reasonably satisfactory to the Company),
to the effect that the Registrable Securities may be sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act so that all transfer restrictions and legends with respect
thereto (other than those required by the Charter of the Company in effect on
the date hereof) are removed upon the consummation of such sale, the Investor
may request that its certificates evidencing such Registrable Securities be
exchanged by the Company for certificates free and clear of all transfer
restrictions and legends (other than those required by the charter of the
Company in effect on the date hereof, unless deleted from the Charter after the
date hereof and before any such delivery). The Company agrees to deliver such
legend free shares to the Investor within three days of the Investor's request
therefor. Should the Company fail to deliver such certificates within such three
day period, the Company agrees to indemnify the Investor for all losses
sustained by the Investor as a result of any decrease in value of such
Registrable Securities from such date beginning on the third day following the
Investor's request for exchange and continuing until such date as new
certificates, free and clear of all legends, has been delivered to the Investor.
13. Miscellaneous.
13.1 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
13.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California.
13.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed or original, but all of which
together shall constitute one and the same instrument.
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13.4 Title and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing and interpreting this Agreement.
13.5 Notices. Except as otherwise provided, all notices and
other communications required as permitted hereunder shall be in writing and
shall be deemed effectively given upon personal delivery to the party to be
notified or upon deposit with the United States Postal Service, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate for ten (10) days' advance written notice to
the other parties.
13.6 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of the Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of the Company and the Investor. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities and the Company.
13.7 Entire Agreement. This Agreement and the other documents
and agreements referred to therein constitute the entire understanding and
agreement among the parties with regard to the subject matter hereof and
thereof.
13.8 Severability. If one or more provisions of this Agreement
are determined to be unenforceable under applicable law, such provisions shall
be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
13.9 Attorneys' Fees. If any action of law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which such party may be entitled.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ESSEX PROPERTY TRUST, INC. TIGER/WESTBROOK REAL ESTATE FUND,
L.P., a Delaware limited partnership
By: Tiger/Westbrook Real Estate Partners
By: /s/ Keith Guericke Management, L.L.C., a Delaware limited
------------------------ liability company, General Partner
Address: By: Westbrook Real Estate Fund I, L.L.C.,
777 California Avenue a Delaware limited liability company,
Palo Alto, CA 94340 Managing Member
Tel:_______________________
Fax:_______________________ By: /s/ William H. Walton III
---------------------------------
William H. Walton III,
Managing Member
By: /s/ Paul D. Kazilionis
--------------------------------
Paul D. Kazilion
Managing Member
TIGER/WESTBROOK REAL ESTATE CO-
INVESTMENT PARTNERSHIP, L.P., a
Delaware limited partnership
By: Tiger/Westbrook Real Estate Partners
Management, L.L.C., a Delaware limited
liability company, General Partner
By: Westbrook Real Estate Fund I, L.L.C.,
a Delaware limited liability company,
Managing Member
By: /s/ William H. Walton III
---------------------------------
William H. Walton III,
Managing Member
By: /s/ Paul D. Kazilionis
--------------------------------
Paul D. Kazilionis
Managing Member
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