REGISTRATION RIGHTS
AGREEMENT
THIS REGISTRATION
RIGHTS AGREEMENT, dated as of November 1, 2006, is entered
into by and among AMB Property Corporation, a Maryland corporation
(the “Company”), AMB Property II, L.P., a Delaware
limited partnership (the “Partnership”), J.A. Green
Development Corp., a New York corporation (the “JA
Green”) and JAGI, Inc., a Delaware corporation
(“JAGI”) (JA Green and JAGI are hereinafter each
referred to as a “Unit Holder” and collectively
referred to as the “Unit Holders”).
WHEREAS, the
Company, the Partnership and the Unit Holders as the parties which
hold ownership interests in certain industrial/warehouse/office
properties (collectively, the “Property”) will engage
in certain transactions whereby the Unit Holders will contribute to
the Partnership its interests in the Property;
WHEREAS, the Unit
Holders will receive cash and units of limited partnership
interests (“Units”) in the Partnership in exchange for
its interests in the Property;
WHEREAS, pursuant
to the Partnership Agreement (as defined below), Units owned by the
Unit Holders will be redeemable for cash or exchangeable for shares
of the Company’s common stock, par value $.01 per share (the
“Common Stock”), upon the terms and subject to the
conditions contained therein; and
WHEREAS, the Unit
Holders are willing to sell/contribute its interests in the
Property in consideration of receiving certain registration rights
provided for in this Agreement;
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:
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”
means this Registration Rights Agreement, as it may be amended,
supplemented or restated from time to time.
“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.
“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.
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as
amended.
“Exchangeable
Units” means Units which may be redeemable for cash or
exchangeable for Common Stock pursuant to Section 23.4 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).
“Holder”
means any Unit Holder 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 action may be publicly 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
of Incorporation set forth in Article IV thereof restricting
the ownership of Common Stock by certain Persons to specified
percentages of the outstanding Common Stock.
“Partnership
Agreement” means the Thirteenth Amended And Restated
Agreement of Limited Partnership of the Partnership, as such
agreement 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.
“Registrable
Securities” means shares of Common Stock of the Company at
any time owned, either of record or beneficially, by any Holder
issued or issuable 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 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. If
as a result of any reclassification, stock dividends or stock
splits or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
other transaction or event, any capital stock, evidence of
indebtedness, warrants, options, rights or other securities of the
Company (collectively “Other Securities”) are issued or
transferred to a Holder as a result of such Holder holding
Registrable Securities held by the Holder, references herein to
Registrable Securities shall be deemed to include such Other
Securities.
“Rule 144”
means Rule 144 under the Securities Act, as amended from time
to time (or any successor statute).
“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.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1
Shelf Registration . The Company shall prepare and file, and
use its reasonable efforts to cause to become effective,
(i) on or as soon as practicable after the first anniversary
of the date the Units are issued (the “Issue Date”) a
“shelf” registration statement with respect to shares
of Common Stock issuable upon the exchange of Exchangeable Units
covering the issuance by the Company and the resale thereof by the
Holders on an appropriate form for an offering to be made on a
continuous basis pursuant to Rule 415 under the Securities Act
(the “Initial Shelf Registration Statement”) and
(ii) on or prior to the date (if any) that such Initial Shelf
Registration Statement or any Subsequent Registration Statement (as
defined below) may no longer be used for offers or sales of the
Registrable Securities, a new “shelf” registration
statement with respect to the shares of Common Stock issuable upon
the exchange of then outstanding Exchangeable Units covering the
issuance by the Company and the resale thereof by the Holders on an
appropriate form for an offering to be made on a continuous basis
pursuant to Rule 415 under the Securities Act (each, a
“Subsequent Shelf Registration,” and collectively with
the Initial Shelf Registration Statement, the “Shelf
Registration Statement”), and shall use its reasonable best
efforts to keep such Shelf Registration Statement continuously
effective for an aggregate period ending when all Registrable
Securities covered by the Initial Shelf Registration Statement have
been issued and resold.
SECTION 2.2
Registration Procedures; Filings; Information . In
connection with any Shelf Registration Statement under
Section 2.1 hereof, 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 as expeditiously as possible prepare and file with
the Commission a 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 issuance and
resale of the Registrable Securities to be registered thereunder in
accordance with the intended methods of distribution thereof, and
use its reasonable best efforts to cause such filed registration
statement to become and remain effective as provided in
Section 2.1 hereof.
(b)
The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto,
furnish to each Selling Holder 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 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 may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Selling Holder.
(c)
After the filing of the registration statement, the Company will
promptly notify each Selling Holder of Registrable Securities
covered by such registration statement of any stop order issued or
threatened by the Commission and take all reasonable actions
required to prevent the entry of such stop order or to remove it if
entered.
(d)
The Company will use its reasonable 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 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.
(e)
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 so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact
or
omit to state
any material fact required to be stated therein or necessary to
make the 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. The Company will prepare and file with the Commission
such amendments (including post-effective amendments) to the Shelf
Registration Statement and such supplements to the prospectus as
may be necessary to keep such Shelf Registration Statement
effective and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Shelf Registration Statement until such time as all of such
securities have been disposed of in accordance with the intended
methods of disposition.
(f)
The Company will make available for inspection by any Selling
Holder of such Registrable Securities and any attorney, accountant
or other professional retained by any such Selling Holder
(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 reasonable 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)
The Company will use its reasonable 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.
(i)
The Company will not be required to enter in an underwriting or
other similar agreement with respect to the disposition of
Registrable Securities.
The Company may
require, as a condition precedent to the obligati
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