1
EXHIBIT IX
2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"AGREEMENT") is made and entered into as of September 24, 1997, by and between
Meridian Industrial Trust, Inc., a Maryland corporation (the "COMPANY"), and The
Prudential Insurance Company of America, a New Jersey corporation ("PRUDENTIAL")
acting for the benefit of the Chevron Separate Account, including its successors
and assigns (Prudential, in such capacity, the "CHEVRON SEPARATE ACCOUNT"), and
Prudential acting for the benefit of the Strategic Performance Fund I Separate
Account, including its successors and assigns (Prudential, in such capacity, the
"SPFI SEPARATE ACCOUNT"), (the Chevron Separate Account and the SPFI Separate
Account are each individually referred to herein as an "INVESTOR" and
collectively, as the "INVESTORS").
RECITALS:
A. Pursuant to the terms of (i) that certain Contribution Agreement dated
as of August 27, 1997 by and between the Company and the Chevron Separate
Account, and (ii) that certain Contribution Agreement dated as of September __,
1997 by and between the Company and the SPFI Separate Account (each individually
referred to as a "CONTRIBUTION AGREEMENT" and collectively, as the "CONTRIBUTION
AGREEMENTS") it is a condition to the obligations of the Investors under their
respective Contribution Agreements that the Company grant certain registration
rights to the Investors with respect to the shares of common stock, par value
$.001 per share ("COMMON STOCK"), of the Company to be received by the
Investors.
B. Pursuant to the terms of the Contribution Agreements it is a condition
to the obligations of the Company thereunder that the Investors each agree to
certain restrictions set forth herein with respect to the disposition of the
Common Stock to be received by the Investors pursuant to the Contribution
Agreements.
C. The Company and the Chevron Separate Account have previously entered
into that certain Registration Rights Agreement dated as of August 29, 1997 (the
"EXISTING REGISTRATION RIGHTS AGREEMENT") with respect to the Common Stock owned
by the Chevron Separate Account.
D. The Company, the Chevron Separate Account and the SPFI Separate Account
wish to amend and restate the Existing Registration Rights Agreement as set
forth herein so as to provide for a single registration rights agreement with
respect to the disposition of the Common Stock to be received by the Investors
pursuant to the Contribution Agreements.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that the Existing
Registration Rights Agreement is hereby amended and restated in its entirety as
follows:
AGREEMENTS:
1. Definitions.
IX-1
3
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Affiliate: A Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with a
specified Person.
Chevron Separate Account: See the first paragraph of this Agreement.
Common Stock: The common stock, par value $.001 per share, of the
Company.
Contribution Agreements: See the recitals to this Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
Investors: See the first paragraph of this Agreement
Person: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Priority Securities: Shares of Common Stock subject to the terms of
the 1996 Investor Rights Agreement.
Prospectus: The prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
Prudential: See the first paragraph of this Agreement.
Registrable Securities: (a) The shares of Common Stock received by
an Investor pursuant to the terms of a Contribution Agreement and any other
shares of Common Stock acquired by an Investor subsequent to the date hereof
(except for any shares of Common Stock acquired by Prudential on behalf of its
general account or on behalf of any Separate Account client of Prudential other
than the Investors) and (b) any securities issued or issuable with respect to
the shares of Common Stock referred to in the foregoing clause (a) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
Any Registrable Security will cease to be a Registrable Security when (i) a
registration statement covering such Registrable Security has been declared
effective by the SEC and the Registrable Security has been disposed of pursuant
to such effective registration statement, (ii) the Registrable Security is sold
under circumstances in which all of the applicable conditions of Rule 144 (or
any similar provisions then in force) under the Securities Act are met, or (iii)
the Registrable Security has been otherwise transferred, the Company has
delivered a new certificate or other evidence of ownership for it not bearing a
legend restricting further transfer, and it may be resold without subsequent
registration under the Securities Act.
IX-2
4
Registration Expenses: See Section 5 hereof.
Registration Statement: The Registration Statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
SPFI Separate Account: See the first paragraph of this Agreement.
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
1996 Investor Rights Agreement: That certain Amended and Restated
Investor Rights Agreement dated February 23, 1996, among the Company and the
stockholders of the Company named therein.
2. Registration Rights.
(a) Shelf Registration. At any time prior to ninety (90) days after
the date hereof, the Company shall file with the SEC, and shall use its best
efforts to cause to become effective by the ninety first (91st) day after the
date hereof, a dedicated "shelf" registration statement on any appropriate form
pursuant to Rule 415 (or similar rule that may be adopted by the SEC) under the
Securities Act (a "SHELF REGISTRATION") for all of the then Registrable
Securities of each Investor.
The Company shall use its best efforts to keep the Shelf
Registration continuously effective, and to prevent the happening of any event
of the kind described in Sections 4(c)(3), (4) or (5) hereof that requires the
Company to give notice pursuant to the last paragraph of Section 4 hereof, for a
period terminating the earlier of (i) the fifth anniversary of the date on which
the SEC declares the Shelf Registration effective and (ii) on the date on which
all the Registrable Securities covered by the Shelf Registration have been sold
pursuant to such Shelf Registration. The Company shall only be obligated to file
one Shelf Registration pursuant to the terms hereof.
The Company further agrees to supplement or make amendments to the
Shelf Registration, if required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the Securities
Act or requested by the holders of a majority of the Registrable Securities
covered by such registration or any underwriter of the Registrable Securities.
One or more offerings of Registrable Securities pursuant to the
Shelf Registration may be in the form of Underwritten Offerings at the election
of the holders of Registrable Securities being offered, provided that the
Registerable Securities to be included in any such Underwritten Offering shall
have a fair market value
IX-3
5
(as defined in Section 2(b)) of at least $9 million. If the Company receives
notice from a holder of Registrable Securities of such an Underwritten Offering,
it shall notify any other holders of Registrable Securities thereof, and such
other holders shall have the right to participate in such Underwritten Offering
by promptly notifying the Company of their election to do so. If the managing
underwriter or underwriters of such offering advise the Company and the holders
of Registrable Securities in writing that in their opinion the number of shares
of Registrable Securities requested to be included in any such offering is
sufficiently large to materially and adversely affect the success of such
offering, the Company will include in any offering the aggregate number of
Registrable Securities which in the opinion of such managing underwriter or
underwriters can be sold without any such material adverse effect and the amount
to be offered for the accounts of all of such holders shall be reduced pro rata
(according to the Registrable Securities beneficially owned by such holders) to
the extent necessary to reduce the total amount of securities to be included in
such offering to the amount recommended by such managing underwriter or
underwriters. The Company shall use its best efforts to amend the Investor
Rights Agreement to provide that no other party, including the Company, shall be
permitted to offer securities in any such offering. No election that an offering
under this Section 2(a) shall be an Underwritten Offering shall be made within
120 days after the closing date of an Underwritten Offering.
Until the termination of the Shelf Registration, each Investor shall be
permitted to offer and sell a maximum of 30% of its Registrable Securities held
on the date hereof pursuant to the Shelf Registration during any 180 day period;
provided that such limitation shall not apply to any Registrable Securities
offered or sold by such Investor pursuant to one or more Underwritten Offerings,
block trades made by such Investor from time to time involving 25,000 shares or
more, or any offer or sale not involving the Shelf Registration.
(b) Demand Registration.
At any time after ninety (90) days from the date hereof, each
Investor may make one written request (a "DEMAND NOTICE") for registration under
the Securities Act (a "DEMAND REGISTRATION") of all or a portion of the
Registrable Securities held by such Investor, subject to the right to reinstate
a Demand Registration set forth herein; provided, however, that the number of
shares of Registrable Securities requested to be registered (i) shall be greater
than 1% of the shares of Common Stock outstanding and (ii) shall have a "fair
market value" (determined pursuant to the next sentence) in excess of
$1,000,000. For purposes of this Agreement, fair market value of the Registrable
Securities shall be determined as follows: (i) if the security is listed on any
established stock exchange or a national market system, including, without
limitation, the New York Stock Exchange (the "NYSE") and the National Market
System of the National Association of Securities Dealers Automated Quotation
System, its fair market value shall be the closing sales price or the closing
bid if no sales were reported, as quoted on such system or exchange (or the
largest such exchange) on the date of the Demand Notice (or if there are no
sales or bids for such date, then for the last preceding business day for such
sales or bids), as reported in The Wall Street Journal or similar publication;
(ii) if the security is regularly quoted by a recognized securities dealer but
selling prices are not reported, its fair market value shall be the mean between
the high bid and low asked prices for the security on the date of the Demand
Notice (or if there are no quoted prices for such date, then for the last
preceding business day on which there were quoted prices); or (iii) in the
absence of an established market for the security, the fair market value shall
be determined in good faith by the Company's Board of Directors, with reference
to the Company's net worth, prospective earning power, dividend-paying capacity
and other relevant factors, including the goodwill of the Company, the economic
outlook in the Company's industry, the Company's position in the industry and
its management
IX-4
6
and the values of stock of other corporations in the same or a similar line of
business (all of such factors determined as of the date of the Demand Notice).
Within ten days after receipt of each Demand Notice, the Company
shall give written notice of such registration request to all non-requesting
holders of Registrable Securities and shall, subject to the provisions of the
following paragraph, include in such registration all Registrable Securities
with respect to which the Company received written requests for inclusion
therein within 15 days after the receipt of the notice of such Demand
Registration request by the applicable holder. Both the Demand Notice and any
request to have Registrable Securities included in a Demand Registration shall
specify the number of shares of Registrable Securities proposed to be sold and
shall also specify the intended method of disposition thereof. A registration
requested pursuant to this Section 2(b) will not be deemed to have been effected
unless the Registration Statement relating thereto has become effective under
the Securities Act; provided, however, that if, after such Registration
Statement has become effective, the offering of the Registrable Securities
pursuant to such registration is interfered with by any stop order, injunction
or other order or requirement of the SEC or other governmental agency or court,
such registration will be deemed not to have been effected and the demanding
Investor's right to request a Demand Registration hereunder shall be reinstated.
The Investor requesting a registration pursuant to this Section 2(b) may, at any
time prior to the effective date of the Registration Statement relating to such
registration, revoke such request with respect to its Registrable Securities by
providing a written notice to the Company revoking such request and such
Investor's right to request a Demand Registration hereunder shall be reinstated.
If the Investor making such demand so elects, the offering of
Registrable Securities pursuant to a Demand Registration shall be in the form of
an Underwritten Offering and such Investor shall have the right to designate the
underwriters and the managing underwriter, subject to approval of the Company,
which approval shall not be unreasonably withheld or delayed. If the managing
underwriter or underwriters of such offering advise the Company and the holders
of Registrable Securities in writing that in their opinion the number of shares
of Registrable Securities requested to be included in such offering is
sufficiently large to materially and adversely affect the success of such
offering, the Company will include in such registration the aggregate number of
Registrable Securities which in the opinion of such managing underwriter or
underwriters can be sold without any such material adverse effect and the
Registrable Securities to be included in such registration shall be allocated,
(i) first to the Investor making such demand, (ii) second among the holders of
the Priority Securities (that have requested inclusion of the Priority
Securities beneficially owned by such holders) to the extent necessary to reduce
the total amount of securities to be included in such offering to the amount
recommended by such managing underwriter or underwriters, (iii) third among the
other holders of Registrable Securities (that have requested inclusion of their
Registrable Securities in such registration), and any other holders of
registration rights in respect of securities of the Company in accordance with
the terms of the agreements granting such rights, pro rata (according to the
Registrable Securities or other securities, as applicable, beneficially owned by
such holders) to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount recommended by such managing
underwriter or underwriters, and (iv) fourth, among the Company and any other
holders of registration rights in respect of securities of the Company that by
their terms are subordinate to the rights of the security holders referred to in
clause (iii) above in accordance with the terms of the agreements granting such
rights. No Investor shall be entitled to effect a Demand Notice under this
Section 2(b) within 120 days after the closing date of an Underwritten Offering.
IX-5
7
No registration pursuant to a request or requests referred to in
this subsection 2(b) shall be deemed to be a Shelf Registration.
(c) Incidental Registration. If the Company proposes to file a
registration statement under the Securities Act (other than in connection with
the Shelf Registration, a Demand Registration, a Registration Statement on Form
S-4 or S-8 or any form substituting therefor, or a shelf registration statement
on Form S-3 or any form substituting therefor relating to (i) issuances of
securities other than Common Stock (or securities convertible into Common Stock)
by the Company for cash, or (ii) so long as the Shelf Registration remains
effective, resales of equity securities of the Company by one or more security
holders of the Company pursuant to Rule 415 under the Securities Act) with
respect to an offering of any class of security by the Company for its own
account or for the account of any of its security holders, then the Company
shall give written notice of such proposed filing to the holders of the
Registrable Securities as soon as practicable (but in no event less than thirty
(30) days before the anticipated filing date), and such notice shall offer such
holders the opportunity to register such number of Registrable Securities as
each such holder may request. Each holder of Registrable Securities desiring to
have its Registrable Securities registered under this Section 2(c) shall so
advise the Company in writing within fifteen (15) days after the date of receipt
of such notice from the Company (which request shall set forth the number of
Registrable Securities for which registration is requested). The Company shall
include in such Registration Statement all such Registrable Securities so
requested to be included therein, and, if such registration is an Underwritten
Registration, the Company shall use its best efforts to cause the managing
underwriter or underwriters to permit the Registrable Securities requested to be
included in the Registration Statement for such offering to be included (on the
same terms and conditions as similar securities of the Company included therein
to the extent appropriate); provided, however, that if the managing underwriter
or underwriters of such offering deliver a written opinion to the holders of
such Registrable Securities that the total number of securities that the
Company, the holders of Registrable Securities, or such other persons propose to
include in such offering is such that the success of the offering would be
materially and adversely affected by inclusion of the securities requested to be
included, then the amount of securities to be offered for the accounts of the
Company, the holders of Registrable Securities and other holders registering
securities pursuant to registration rights shall be allocated as follows:
(i) if such registration has been initiated by the Company as a
primary offering, first to the securities sought to be
included by the Company, second to the Priority Securities
sought to be included by the holders thereof, and third to the
Registrable Securities sought to be included by the holders
thereof and the securities sought to be included by other
holders of registration rights, pro rata, on the basis of the
number of securities owned by each such holder, and fourth the
securities sought to be included by other holders of
registration rights that by their terms are subordinate to the
registration rights of the security holders referred to in the
immediately preceding clause, pro rata, on the basis of the
number of securities owned by each such holder; and
(ii) if such registration has been initiated by another holder of
registration rights (other than pursuant to Section 2(b)
hereof), first to the securities sought to be included by such
demanding holder, second to the Priority Securities sought to
be included by the holders thereof, third to the Registrable
Securities sought to be included by the holders thereof and to
all other securities sought to be included by other holders of
registration rights,
IX-6
8
pro rata, on the basis of the number of securities owned by
each such holder, and fourth to the securities sought to be
included by the Company among the Company and any other
holders of registration rights in respect of securities of the
Company that by their terms are subordinate to the rights of
the security holders referred to in priority Third above in
accordance with the terms of the agreements granting such
rights.
If the number of Registrable Securities sought to be registered
pursuant to this Section 2(c) by a holder of Registrable Securities is reduced
as provided above, such holder shall have the right to withdraw such holder's
request for registration with respect to all of the Registrable Securities
initially sought to be registered.
No registration pursuant to a request or requests referred to in
this Section 2(c) shall be deemed to be a Shelf Registration or a Demand
Registration.
3. Hold-Back Agreements.
(a) Restrictions on Public Sale by Holder of Registrable Securities.
Each holder of Registrable Securities agrees, if requested in writing by the
managing underwriters in an Underwritten Offering, not to effect any public sale
or distribution of Registrable Securities of the Company of the same class as
the securities included in the applicable registration statement, including a
sale pursuant to Rule 144 under the Securities Act (except as part of such
Underwritten Offering or if, prior to receiving such request, such holder has
given a Demand Notice or a notice of commencement of a public sale or
distribution pursuant to the Shelf Registration), during the ten (10) day period
prior to the filing of the registration statement with respect to such
Underwritten Offering, and during the ninety (90) day period beginning on the
effective date of the registration statement with respect to such Underwritten
Offering, to the extent timely notified in writing by the Company or the
managing underwriters, or, in the case of a shelf offering, the date of
commencement of a public distribution of Registrable Securities pursuant to such
registration statement, as applicable.
(b) Restrictions on Sale of Securities by the Company. The Company
agrees not to effect any public sale or distribution of any securities similar
to those being registered, or any securities convertible into or exchangeable or
exercisable for such securities (except pursuant to a registration statement on
Form S-4 or S-8, or any substitute form that may be adopted by the SEC) during
the ten (10) days prior to the filing of a registration statement with respect
to an Underwritten Offering, and during the ninety (90) day period beginning on
the effective date of the applicable Registration Statement (except as part of
such registration statement (x) where the holders of a majority of the shares of
Registrable Securities to be included in such Registration Statement consent or
(y) where holders of Registrable Securities are participating in such
registration statement pursuant to Section 2(c) hereof, such registration
statement was filed by the Company with respect to the sale of securities by the
Company, and no holder is simultaneously participating in a distribution
pursuant to a Registration Statement filed by the Company pursuant to Section
2(b) hereof) or, in the case of a shelf offering, the date of commencement of a
public distribution of Registrable Securities pursuant to such registration
statement, as applicable.
4. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 2 hereof, the Company will use its
best efforts to effect such registration to permit the sale
IX-7
9
of such Registrable Securities in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and file with the SEC, as soon as practicable, a
Registration Statement relating to the applicable registration on any
appropriate form under the Securities Act, which forms shall be available for
the sale of the Registrable Securities in accordance with the intended method or
methods of distribution thereof and shall include all financial statements of
the Company, and use its best efforts to cause such Registration Statement to
become effective; provided that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, including documents
incorporated by reference after the initial filing of the Registration
Statement, the Company will furnish to (i) one counsel selected by the holders
of a majority of the shares of Registrable Securities covered by such
Registration Statement, and (ii) the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review of
such counsel and underwriters, and the Company will not file any Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(including such documents incorporated by reference) to which such counsel or
the underwriters, if any, shall reasonably object; and provided further that the
Company shall have the right to delay filing or effectiveness of a Registration
Statement filed pursuant to Section 2(b) hereto or the commencement of a public
distribution of Registrable Securities, as applicable, for up to 120 days if the
Company's Board of Directors determines, in good faith, that the filing or
effectiveness thereof or the commencement of such public distribution could
materially interfere with a pending extraordinary transaction involving the
Company or bona fide financing plans of the Company or would require disclosure
of information, the premature disclosure of which would not be in the best
interests of the Company, but no further delays will be permitted;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for the period set forth in Section 2(a) with
respect to the Shelf Registration or nine months with respect to a Demand
Registration, or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act and all securities covered by
such Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the holders thereof set forth in
such Registration Statement or supplement to the Prospectus; the Company shall
not be deemed to have used its best efforts to keep a Registration Statement
effective during the applicable period if it voluntarily takes or knowingly
omits to take any action that would result in selling holders of the Registrable
Securities covered thereby not being able to sell such Registrable Securities
during that period unless such action is required under applicable law; provided
that the foregoing shall not apply to actions or omissions taken by the Company
in good faith and for valid business reasons, including without limitation the
acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 4(l) hereof, if applicable;
(c) notify the selling holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such Person)
confirm such advice in writing, (1) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective, (2) of any request by the ▇▇▇
▇▇-▇
▇▇
for amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (3) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, (4) if at any time the representations and
warranties of the Company contemplated by paragraph (n) below cease to be true
and correct, (5) 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 (6) of the happening of any event which makes any statement made in
the Registration Statement, the Prospectus or any document incorporated therein
by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus or any document incorporated therein by
reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if reasonably requested by the managing underwriter or
underwriters or a holder of Registrable Securities being sold in connection with
an Underwritten Offering, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters and the
holders of a majority in number of the Registrable Securities being sold agree
should be included therein relating to the sale of the Registrable Securities,
including, without limitation, information with respect to the number of
Registrable Securities being sold to such underwriters, the purchase price being
paid therefor by such underwriters and with respect to any other terms of the
Underwritten Offering of the Registrable Securities to be sold in such offering;
and make all required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(f) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement), make available
representatives of the Company for discussion of such document and make such
changes in such document prior to the filing thereof as counsel for selling
holders of Registrable Securities or underwriters may reasonably request;
(g) furnish to each selling holder of Registrable Securities and
each managing underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(h) deliver to each selling holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the selling holders
of Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
IX-9
11
(i) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any such selling
holder or underwriter reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement;
(j) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters;
(k) cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of
such Registrable Securities;
(l) upon the occurrence of any event contemplated by Section 4(c)
(6) above, prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(m) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
(n) enter into and perform its obligations under such agreements
(including an underwriting agreement) and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of such
Registrable Securities and in connection therewith, whether or not an
underwriting agreement is entered into and whether or not the registration is an
Underwritten Registration, (1) make such representations and warranties to the
holders of such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings; (2) obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and the
holders of a majority of the Registrable Securities included in such
registration, covering the matters customarily covered in opinions requested in
Underwritten Offerings and such other matters as may be reasonably requested by
such holders and underwriters); (3) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public accountants addressed to
the selling holders of Registrable Securities and the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters by underwriters in connection with primary
Underwritten Offerings; (4) if an underwriting agreement is entered into, the
same shall set forth in full the indemnification provisions and procedures of
Section 6 hereof with respect to all parties to be indemnified pursuant to said
Section; and (5) the Company shall deliver such documents and certificates as
may be requested by the holders
IX-10
12
of a majority of the Registrable Securities being sold and the managing
underwriters, if any, to evidence compliance with clause (1) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company. The above shall be done at each closing under such
underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by representatives of the holders
of the Registrable Securities, any underwriter participating in any disposition
pursuant to such registration, and any attorney or accountant retained by the
sellers or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's officers,
directors, employees, counsel and accountants to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such registration; provided that any records,
information or documents that are designated by the Company in writing as
confidential shall be kept confidential by such Persons unless disclosure of
such records, information or documents is required by court or administrative
order;
(p) comply with all applicable rules and regulations of the SEC and
make available to its security holders, as soon as reasonably practicable,
earning statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act), covering any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to underwriters in a
firm commitment or reasonable efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement;
(q) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be made with
the NYSE or the National Association of Securities Dealers, Inc. (the "NASD");
and
(r) exempt any underwriter from the prohibition on owning more than
a specified percentage of the Company's Common Stock set forth in the Company's
articles of incorporation.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing and to enter into agreements
related to the distribution of the Registrable Securities that are designed to
insure compliance with the Exchange Act.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(c)(6) hereof, such
holder will forthwith discontinue disposition of Registrable Securities until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(c)(6) hereof, or until it is advised in writing (the
"ADVICE") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company such holder
will deliver to the Company (at the Company's expense), all copies, other than
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company
IX-11
13
shall give any such notice, the time periods regarding the effectiveness of
Registration Statements set forth in Section 2 hereof and Section 4(b) hereof
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 4(c)(6) hereof to the date
when the selling holders of Registrable Securities covered by such registration
statement shall receive copies of the supplemented or amended prospectus
contemplated by Section 4(l) hereof or the Advice.
5. Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation:
all registration and filing fees; all fees associated with a required listing of
the Registrable Securities on any securities exchange; fees and expenses with
respect to filings required to be made with the NYSE or the NASD; fees and
expenses of compliance with securities or blue sky laws (including fees and
disbursements of counsel for the underwriters or holders of Registrable
Securities in connection with blue sky qualifications of the Registrable
Securities and determination of their eligibility for investment under the laws
of such jurisdictions as the managing underwriters or holders of a majority of
the Registrable Securities being sold may designate); printing expenses,
messenger, telephone and delivery expenses; 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 comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters requested pursuant to Section
4(n) hereof); securities acts liability insurance, if the Company so desires;
all internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties); the expense of any annual audit; and the fees and expenses
of any Person, including special experts, retained by the Company (all such
expenses being herein called "REGISTRATION EXPENSES") will be borne by the
Company regardless of whether the Registration Statement becomes effective. The
Company shall not have any obligation to pay any underwriting fees, discounts,
or commissions attributable to the sale of Registrable Securities, or any legal
fees and expenses of counsel to the holders of Registrable Securities.
6. Indemnification; Contribution.
(a) Indemnification by Company. The Company agrees to indemnify and
hold harmless each holder of Registrable Securities and each Person who controls
such Person (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and their respective partners, officers, directors,
employees, agents, and Affiliates, against all losses, claims, damages,
liabilities and expenses (including without limitation the reasonable fees and
disbursements of counsel for such Person in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any other
Person (including without limitation, the Company or its Affiliates)) arising
out of or based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus, preliminary prospectus or
any post-effective amendments or supplements 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 not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by the holders of Registrable Securities expressly for use therein. The
Company will also indemnify underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such Persons (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) to the same extent as provided above with respect to the indemnification of
the holders of Registrable Securities, if requested.
IX-12
14
(b) Indemnification by Holder of Registrable Securities. Each holder
of Registrable Securities agrees severally and not jointly to indemnify and hold
harmless the Company, each Person who controls the Company (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act), each
other holder and their respective partners, directors, officers, employees,
agents, and Affiliates against any losses, claims, damages, liabilities and
expenses (including without limitation the reasonable fees and disbursements of
counsel for such Person in connection with any investigative, administrative or
judicial proceeding commenced or threatened by any other Person) resulting from
any untrue statement of a material fact or any omission of a material fact
required to be stated in the Registration Statement, Prospectus, preliminary
prospectus or any post-effective amendment or supplement thereto or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such holder to the Company specifically
for inclusion therein. In no event shall the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation. The Company shall be entitled to
receive indemnities from underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution, to
the same extent as provided above with respect to information so furnished in
writing by such Persons specifically for inclusion in any Registration
Statement, Prospectus, preliminary prospectus or any post-effective amendment or
supplement thereto.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any Person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (a) the
indemnifying party has agreed to pay such fees or expenses, (b) the indemnifying
party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such Person or (c) based upon advice of counsel of
such Person, a conflict of interest may exist between such Person and the
indemnifying party with respect to such claims (in which case, if the Person
notifies the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of
such Person), in each of which events the fees and expenses of such counsel
shall be at the expense of the indemnifying party. The indemnifying party will
not be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld), but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the indemnifying party shall indemnify and hold harmless the
indemnified parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. No indemnified party will be
required to consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
(d) Contribution. If for any reason the indemnification provided for
in the preceding clauses (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by the preceding clauses (a)
and (b), then each indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate
IX-13
15
to reflect not only the relative benefits received by the indemnified party and
each such indemnifying party, but also the relative fault of the indemnified
party and each such indemnifying party, as well as any other relevant equitable
considerations, provided, that no holder of Registrable Securities shall be
required to contribute an amount greater than the dollar amount of the proceeds
received by such holder with respect to the sale of the Registrable Securities
giving rise to such indemnification obligation. The relative fault of the
Company on the one hand and of the selling holders 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 such party, and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or 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 misrepresentations.
7. Rule 144. The Company hereby agrees that, at any time and from
time to time, it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
SEC thereunder (or, if the Company is not required to file such reports, it
will, upon the request of any holder of Registrable Securities made ninety (90)
days after the date hereof, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 under the Securities Act), and it
will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitation 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 SEC. Upon the request of any
holder of Registrable Securities, the Company will deliver to such holder a
written statement as to whether it has complied with such information and
requirements.
8. Participation in Underwritten Registrations.
(a) If any of the Registrable Securities covered by the Shelf
Registration are to be sold in an Underwritten Offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the holders of a majority of the Registrable Securities
included in such offering; provided, that such investment bankers and managers
must be reasonably satisfactory to the Company.
(b) No Person may participate in any Underwritten Registration
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Nothing in this Section 8 shall be construed to create any additional rights
regarding the registration of Registrable Securities in any Person otherwise
than as set forth herein.
9. [Reserved.]
▇▇-▇▇
▇▇
▇▇. Miscellaneous.
(a) Remedies. Each party hereto, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement to the extent available under applicable law. Each party hereto agrees
that monetary 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. In any proceeding brought to enforce any provision of
this Agreement, the successful party shall be entitled to recover reasonable
attorneys' fees in addition to its costs and expenses and any other available
remedy.
(b) Additional Registration Rights. The Company will not on or after
the date of this Agreement enter into any agreement granting registration rights
to any other Person with respect to the securities of the Company that are not
pari passu or subordinate to the rights granted to the holders of Registrable
Securities hereunder with respect to any incidental registration rights of the
type described in Section 2(c) hereof without the written consent of the holders
of a majority of the then outstanding Registrable Securities. Any agreement
entered into pursuant to such consent shall not be amended without a further
written consent of the holders of a majority of the then outstanding Registrable
Securities.
(c) Amendments and Waivers. No amendment, modification or supplement
to this Agreement or any provision hereof, and no waiver or consent to departure
from the provisions hereof, shall affect or be binding upon any party who has
not consented in writing to such amendment, modification, supplement, waiver or
consent to departure.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or air courier guaranteeing overnight delivery:
(i) if to any Investors, at the most current address given by
such Investor to the Company, in accordance with the provisions of this
subsection, which address for each Investor initially is The Prudential
Insurance Company of America, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇,
Procter & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.;
(ii) if to the Company, initially at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive
Officer, and thereafter at such other address as may be designated from
time to time by notice given in accordance with the provisions of this
Section 11(d), with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; and
(iii) if to any transferee, at the address given by such
transferee to the Company.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need
IX-15
17
for an express assignment, subsequent holders of Registrable Securities;
provided that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Securities in violation of the terms hereof;
provided, further, that holders of Registrable Securities may not assign their
rights under this Agreement except in connection with the permitted transfer of
Registrable Securities and then only insofar as relates to such Registrable
Securities; and provided further that with respect to any transfers of
Registered Securities subsequent to the filing or effectiveness of the Shelf
Registration the Company shall exert its best efforts to amend the Shelf
Registration to provide that any such transferee shall have the rights of the
transferor of such Registrable Securities. The rights to request a Demand
Registration under Section 2(b) hereof reserved to an Investor under this
Agreement shall not be transferable by such Investor except to a purchaser of
all of the Registrable Securities of such Investor. If any transferee shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities, such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Contribution
Agreement, and such Person shall be entitled to receive the benefits hereof.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MARYLAND.
(i) 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.
(j) 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 such subject
matter.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
IX-16
18
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
MERIDIAN INDUSTRIAL TRUST, INC., a Maryland
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation (acting for the
benefit of the Chevron Separate Account)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation (acting for the
benefit of the Strategic
Performance Fund I Separate Account)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
IX-17