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EXHIBIT 3.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of November 24,
1998 (this "Agreement"), is entered into by and among AMB Property Corporation,
a Maryland corporation (the "Company" or the "REIT"), AMB Property II, L.P., a
Delaware limited partnership (the "Subsidiary Operating Partnership"), and the
unit holders whose names are set forth on the signature pages hereto (each, a
"Unit Holder" and collectively, the "Unit Holders").
RECITALS
WHEREAS, in connection with the offering of 8.75% Series C
Cumulative Redeemable Preferred Units of the Subsidiary Operating Partnership
(the "Units"), Belcrest Realty Corporation, a Delaware corporation ("Belcrest"),
and Belair Real Estate Corporation, a Delaware corporation ("Belair") (each a
"Contributor" and, together the "Contributors"), desire to contribute to the
Subsidiary Operating Partnership cash in return for the Units on terms and
conditions set forth in the Contribution Agreement, dated November 24, 1998 by
and among the Company, the Subsidiary Operating Partnership, AMB Property, L.P.,
a Delaware limited partnership (the "OP Parent"), AMB Property Holding
Corporation, a Maryland corporation (the "General Partner") and Belcrest, and
the Contribution Agreement, dated November 24, 1998 by and among the Company,
the Subsidiary Operating Partnership, the OP Parent, the General Partner and
Belair (each a "Contribution Agreement" and together, the "Contribution
Agreements");
WHEREAS, the Unit Holders will receive the Units in exchange
for cash to each of the Contributors;
WHEREAS, pursuant to the Partnership Agreement (as defined
below), the Units owned by the Unit Holders will be redeemable for cash or
exchangeable for shares of the Company's 8.75% Series C Cumulative Redeemable
Preferred Stock (the "Preferred Stock") upon the terms and subject to the
conditions contained therein; and
WHEREAS, in order to induce each of the Contributors to enter
into their respective Contribution Agreements, the Company and the Subsidiary
Operating Partnership have agreed to provide registration rights set forth to
each of the Contributors and any subsequent holder or holders of the Units.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. In addition to the definitions set
forth above, the following terms, as used herein, have the following meanings:
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under common control with such
Person. For the purposes of this definition, "control" when used with respect to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" has the meaning given to such term in the preamble
hereto.
"Articles of Incorporation" means the Articles of
Incorporation of the Company as filed with the Secretary of State of the State
of Maryland on November 24, 1997, as the same may be amended, modified or
restated from time to time.
"Articles Supplementary" means the Articles Supplementary of
the Company, filed with the Maryland State Department of Assessments and
Taxation on November 24, 1998, designating the Preferred Stock.
"Belair" means Belair Real Estate Corporation, a Delaware
corporation.
"Belcrest" means Belcrest Realty Corporation, a Delaware
corporation.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York, New York or San Francisco,
California are authorized by law to close.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time or any successor statute thereto, as interpreted by the
applicable regulations thereunder.
"Commission" means the Securities and Exchange Commission.
"Contribution Agreements" means the Contribution Agreement,
dated November 24, 1998 by and among the Company, the Subsidiary Operating
Partnership, the OP Parent, the General Partner and Belcrest, and the
Contribution Agreement, dated November 24, 1998 by and among the Company, the
Subsidiary Operating Partnership, the OP Parent, the General Partner and Belair.
"Contributors" means Belcrest Realty Corporation, a Delaware
corporation, and Belair Real Estate Corporation, a Delaware corporation .
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules
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and regulations of the Commission promulgated thereunder.
"Exchangeable Units" means Units which may be redeemable for
cash pursuant to Section 16.5 of the Partnership Agreement or exchangeable for
Preferred Stock or redeemable for cash pursuant to Section 16.8 of the
Partnership Agreement (without regard to any limitations on the exercise of such
exchange right as a result of the Ownership Limit Provisions, as defined below).
"General Partner" means AMB Property Holding Corporation, a
Maryland corporation or its successors as general partner of the Subsidiary
Operating Partnership.
"Holder" means any Person 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 public distribution pursuant to a registration
statement under the Securities Act or pursuant to transactions exempt from
registration under the Securities Act, in each such case where securities sold
in such transaction may be resold without subsequent registration under the
Securities Act.
"Incapacitated" shall have the meaning set forth in the
Partnership Agreement.
"Ownership Limit Provisions" mean the various provisions of
the Articles Supplementary set forth in Section 7 of Article Third thereof
restricting the ownership of Preferred Stock by certain Persons to specified
percentages of the outstanding Preferred Stock.
"Partnership Agreement" means the Third Amended and Restated
Agreement of Limited Partnership of the Subsidiary Operating Partnership, dated
as of November 24, 1998, as the same may be amended, modified or restated from
time to time.
"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.
"Preferred Stock" means the Company's 8.75% Series C
Cumulative Redeemable Preferred Stock.
"REIT" means a real estate investment trust under Section 856
through Section 860 of the Code.
"Registrable Securities" means shares of Preferred Stock of
the Company at any time owned, either of record or beneficially, by any Holder
issued upon exchange of Exchangeable Units until (i) a registration statement
covering such securities has been declared effective by the Commission and such
shares have been sold or transferred pursuant to such effective registration
statement, (ii) such shares are sold under circumstances in which all of the
applicable conditions of Rule 144 are met or under which such shares may be sold
pursuant to Rule 144(k) under the
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Securities Act or (iii) such shares have been otherwise transferred in a
transaction that would constitute a sale thereof under the Securities Act, the
Company has delivered a new certificate or other evidence of ownership for such
shares not bearing the Securities Act restricted stock legend and such shares
may be resold without subsequent registration under the Securities Act.
"Rule 144" means Rule 144 promulgated under the Securities
Act, as such rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of the Company of such
securities being free of the registration and prospectus delivery requirements
of 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 registration statement under the Securities Act
pursuant to this Agreement.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
"Units" means 8.75% Series C Cumulative Redeemable Preferred
Units of the Subsidiary Operating Partnership.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration. The Company shall prepare and
file with the Commission a "shelf" registration statement on any form for which
the Company then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the resale of the Registrable
Securities by the Holders for an offering to be made on a continuous or delayed
basis pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement") as soon as practicable but in any event not later than 60 days after
the date the Units are exchanged for shares of Preferred Stock and shall use its
best efforts to cause the Shelf Registration Statement to be declared effective
within 120 days after the date of such exchange. The Company shall use its best
efforts to keep such Shelf Registration Statement continuously effective until
the earliest of such time as all of the Registrable Securities have been sold
pursuant to the Shelf Registration Statement or Rule 144.
SECTION 2.2 Registration Procedures; Filings; Information. In
connection with any Shelf Registration Statement, the Company will use its best
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof as quickly as
practicable, and in connection therewith:
(a) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
notify each Holder of Registrable Securities that a Shelf Registration Statement
is being filed and advise such Holder that an offering of
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Registrable Securities will be made in accordance with the method or methods
elected (which method may also include an underwritten offering by a nationally
recognized Underwriter selected by the Company and reasonably acceptable to the
electing Holders) by the Holders of a majority of the Registrable Securities,
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, one conformed copy of such registration statement, each
amendment thereof and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein; provided, that each
such exhibit need only be provided once), and such number of copies of 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.
(b) After the filing of the registration statement, the
Company will promptly (i) notify each Selling Holder of Registrable Securities
covered by such registration statement of any stop order issued or threatened by
the Commission or any state securities authority and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered and
(ii) notify each Selling Holder of Registrable Securities (A) of any request by
the Commission or any state securities authority for post-effective amendments
and supplements to a registration statement that has become effective, (B) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, and (C) of any
determination by the Company that a post-effective amendment to a registration
statement is required.
(c) The Company will use its best efforts to (i) register or
qualify the Registrable Securities under such other securities or blue sky laws
of such 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 such Selling Holder's intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Selling Holder to consummate the disposition of the Registrable Securities owned
by such Selling Holder; provided that the Company will not be required to (A)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (B) subject itself
to taxation in any such jurisdiction or (C) consent to general service of
process in any such jurisdiction.
(d) The Company will promptly 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 and
shall file with the Commission such amendments and supplements to such
prospectus and deliver copies of the same to each Selling Holder or underwriter,
as the case may be, so that, as thereafter delivered to the purchasers of such
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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 statements 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.
(e) The Company will enter into customary agreements
(including an underwriting agreement, if any, in customary form containing
customary representations and warranties) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities.
(f) The Company will make available for inspection by any
Selling Holder of 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 exercise their due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any Inspectors in
connection with such registration statement. 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 (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) 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.
(g) The Company will otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission, and make available
to its securityholders, 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).
(h) In connection with an underwritten offering of Registrable
Securities, the Company will furnish to each Underwriter a signed counterpart,
addressed to 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
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matters of the type customarily covered by opinions or comfort letters, as the
case may be, as the managing Underwriter or Underwriters therefor reasonably
request.
(i) The Company will use its best efforts to cause all such
Registrable Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(j) The Company will use its best efforts to obtain CUSIP
numbers for the Preferred Stock not later than the effective date of the Shelf
Registration Statement.
The Company may require, as a condition precedent to the
obligations of the Company under the Agreement, each Selling Holder of
Registrable Securities to promptly furnish in writing to the Company such
information regarding such Selling Holder, the Registrable Securities held by it
and the intended method of distribution of the Registrable Securities as the
Company may from time to time reasonably request and such other information as
may be legally required in connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice
from the Company of, or such Selling Holder obtains knowledge of, the happening
of any event of the kind described in Section 2.2(d) hereof, such Selling Holder
will forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement and prospectus covering such Registrable Securities until
such Selling Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.2(d) hereof, and, if so directed by the
Company, such Selling Holder will deliver to the Company all copies, other than
permanent file copies then in such Selling Holder's possession, of the most
recent prospectus and each amendment thereof and supplement thereto covering
such Registrable Securities at the time of receipt of such notice. Each Selling
Holder of Registrable Securities agrees that it will immediately notify the
Company at any time when a prospectus relating to the registration of such
Registrable Securities is required to be delivered under the Securities Act of
the happening of an event known to such Selling Holder as a result of which
information previously furnished by such Selling Holder to the Company in
writing for inclusion in such prospectus contains an untrue statement of a
material fact or omits to state any 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. In the event the Company shall give such
notice, the Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
Section 2.1 hereof) by the number of days during the period from and including
the date of the giving of notice pursuant to Section 2.2(d) hereof to the date
when the Company shall make available to the Selling Holders of Registrable
Securities covered by such registration statement a prospectus supplemented or
amended to conform with the requirements of Section 2.2(d) hereof.
SECTION 2.3 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
hereunder (the "Registration Expenses"): (i) all registration, listing and
filing fees, (ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky
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qualifications of the Registrable Securities), (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) reasonable fees and disbursements of counsel for
the Company and customary fees and expenses for independent certified public
accountants retained by the Company, (including the expenses of any special
audits or comfort letters or costs associated with compliance with such special
audits or with the delivery by independent certified public accountants of a
comfort letter or comfort letters requested pursuant to Section 2.2(h) hereof)
(vii) the reasonable fees and expenses of any special experts retained by the
Company in connection with such registration; and (viii) the reasonable fees and
expenses of one counsel (who shall be reasonably acceptable to the Company) for
the Selling Holders. Except as expressly set forth in the preceding sentence,
the Company shall have no obligation to pay any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities, or any
out-of-pocket expenses of the Holders (or the agents who manage their accounts)
or any transfer taxes relating to the registration or sale of the Registrable
Securities.
SECTION 2.4 Indemnification by the Company. The Company agrees
to indemnify and hold harmless each Selling Holder of Registrable Securities,
its officers, directors and agents, and each Person, if any, who controls such
Selling Holder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by 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 in 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. The Company also
agrees to indemnify any 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 Selling
Holders provided in this Section 2.4, provided that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter of the Registrable Securities from whom the person asserting any
such losses, claims, damages or liabilities purchased the Registrable Securities
which are the subject thereof if such person did not receive a copy of the
prospectus (or the prospectus as supplemented) at or prior to the confirmation
of the sale of such Registrable Securities to such person in any case where such
delivery is required by the Securities Act and the untrue statement or omission
of a material fact contained in such preliminary prospectus was corrected in the
prospectus (or the prospectus as supplemented).
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SECTION 2.5 Indemnification by Holders of Registrable
Securities. Each Selling Holder agrees, severally but not jointly, 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 foregoing indemnity from the Company to such Selling Holder, 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
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. In case any
action or proceeding shall be brought against the Company or its officers,
directors or agents or any such controlling person, in respect of which
indemnity may be sought against such Selling Holder, such Selling Holder shall
have the rights and duties given to the Company, and the Company or its
officers, directors or agents or such controlling person shall have the rights
and duties given to such Selling Holder, by Section 2.4 hereof. Each Selling
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 2.5.
SECTION 2.6 Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Sections 2.4 or 2.5 hereof, such person (an "Indemnified Party") shall promptly
notify the person against whom such indemnity may be sought (an "Indemnifying
Party") in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by (i) in the case
of Persons indemnified pursuant to Section 2.4 hereof, by the Selling Holders
which owned a majority of the Registrable Securities sold under the applicable
registration statement and (ii) in the case of Persons indemnified pursuant to
Section 2.5 hereof, the Company. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment. Notwithstanding
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the foregoing sentence, if at any time an Indemnified Party shall have requested
an Indemnifying Party to reimburse the Indemnified Party for fees and expenses
of counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than thirty (30) Business Days after receipt by such
Indemnifying Party of the aforesaid request and (ii) such Indemnifying Party
shall not have reimbursed the Indemnified Party in accordance with such request
prior to the date of such settlement. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such proceeding.
SECTION 2.7 Contribution. If the indemnification provided for
in Sections 2.4 or 2.5 hereof is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (i)
as between the Company and the Selling Holders on the one hand and the
Underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Holders on the one
hand and the Underwriters on the other from the offering of the securities, or
if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Selling Holders on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations and (ii) 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 benefits received by the Company and the Selling
Holders on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the Selling Holders bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the prospectus. The relative fault of the Company and
the Selling Holders on the one hand and of the Underwriters 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 and the Selling
Holders or by the Underwriters. 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,
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knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Selling Holders agree that it would not be
just and equitable if contribution pursuant to this Section 2.7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in Sections 2.4 and 2.5
hereof shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 2.7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and 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. The Selling Holders' obligations to contribute pursuant to
this Section 2.7 are several in the proportion that the proceeds of the offering
received by such Selling Holder bears to the total proceeds of the offering
received by all the Selling Holders and not joint.
SECTION 2.8 Participation in Underwritten Registrations. No
Person may participate in any underwritten registration hereunder unless such
Person (a) agrees to sell such Person's 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 and reasonably required under the terms of
such underwriting arrangements and these registration rights provided for in
this Article II.
SECTION 2.9 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 and that it will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable Holders to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 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
complied with such requirements.
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SECTION 2.10 Holdback Agreements.
(a) If the Company determines in its good faith judgment that
the filing of the Shelf Registration Statement or the use of any related
prospectus would require the disclosure of non-public material information that
the Company has a bona fide business purpose for preserving as confidential or
the disclosure of which would impede the Company's ability to consummate a
material action, and that the Company is not otherwise required by applicable
securities laws or regulations to disclose, upon written notice of such
determination by the Company, the rights of the Holders to offer, sell or
distribute any Registrable Securities pursuant to the Shelf Registration
Statement or to require the Company to take action with respect to the
registration or sale of any Registrable Securities pursuant to the Shelf
Registration Statement shall be suspended until the earlier of (i) the date upon
which the Company notifies the Holders in writing that suspension of such rights
for the grounds set forth in this Section 2.10(a) is no longer necessary and
(ii) 120 days. The Company agrees to grant to the Holders any rights granted
after the date of this Agreement to holders of shares of another class or series
of the Company's preferred stock which limit the Company's ability to suspend
the rights of such holders under the registration rights agreement applicable to
such shares which are more favorable than the rights granted to the Holders
pursuant to this Section 2.10(a). The Company agrees to give such notice as
promptly as practicable following the date that such suspension of rights is no
longer necessary.
(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 Act, upon written notice thereof by the Company to
the Holders, the rights of the Holders to offer, sell or distribute any
Registrable Securities pursuant to the Shelf Registration Statement or to
require the Company to take action with respect to the registration or sale of
any Registrable Securities pursuant to the Shelf Registration Statement 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 Shelf Registration Statement, and the Company shall notify the Holders as
promptly as practicable when such suspension is no longer required.
SECTION 2.11"Piggy Back" Rights. If at any time hereafter the
Company shall extend any holder of any shares of preferred stock of the Company
so called "piggy back" registration rights, such rights shall be extended to the
Holders of Registrable Securities upon the same terms and conditions.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Remedies. In addition to being entitled to
exercise all rights provided herein and granted by law, including recovery of
damages, the Holders shall be entitled to specific performance of the rights
under this Agreement. The Company agrees that monetary
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damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
SECTION 3.2 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 or any such Holder's representative if any such Holder
is Incapacitated. 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 3.3 Notices. All notices and other communications in
connection with this Agreement shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to any Unit Holder:
c/o Eaton Vance Management
One Federal Street
Boston, MA 02110
Attn: Mr. Alan Dynner
Facsimile Number: (617) 338-8054
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Attn: Peter H. Blessing, Esq.
Facsimile Number: (212) 848-7300
(2) if to the Company, initially at 505 Montgomery Street, San
Francisco, California 94111 (Attention: President and Chief Executive Officer),
or to such other address as the Company may hereafter specify in writing.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; when
received if deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
SECTION 3.4 Successors and Assigns. Except as expressly
provided in this Agreement, the rights and obligations of the Holders under this
Agreement shall not be
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assignable by any Holder to any Person that is not a Holder. This Agreement
shall be binding upon the parties hereto and their respective successors and
assigns.
SECTION 3.5 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. Each party
shall become bound by this Agreement immediately upon affixing its signature
hereto. Counterparts hereof containing facsimile copy signatures shall have the
same force and effect as original signed counterparts.
SECTION 3.6 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 choice of law provisions thereof.
SECTION 3.7 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 3.8 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. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
SECTION 3.9 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 3.10 No Third Party Beneficiaries. Nothing express or
implied herein is intended or shall be construed to confer upon any person or
entity, other than the parties hereto and their respective successors and
assigns, any rights, remedies or other benefits under or by reason of this
Agreement.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
AMB PROPERTY CORPORATION,
a Maryland corporation
By: /s/ John T. Roberts
----------------------------------
John T. Roberts
Vice President and Director of Capital
Markets
AMB PROPERTY II, L.P.,
a Delaware limited partnership
By: AMB Property Holding Corporation,
its general partner
By: /s/ John T. Roberts
----------------------------------
John T. Roberts
Vice President and Director of Capital
Markets
UNIT HOLDERS
BELCREST REALTY CORPORATION,
a Delaware corporation
By: /s/ Thomas E. Faust, Jr.
----------------------------------
Thomas E. Faust, Jr.
Executive Vice President
BELAIR REAL ESTATE CORPORATION,
a Delaware corporation
By: /s/ Thomas E. Faust, Jr.
----------------------------------
Thomas E. Faust, Jr.
Executive Vice President
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