Exhibit
4.1


 


REGISTRATION RIGHTS AGREEMENT


 


THIS
REGISTRATION RIGHTS AGREEMENT, dated as
of July 26, 2010, is entered into by and among HCP, INC., a Maryland
corporation (the “Company”),
BOYER RESEARCH PARK ASSOCIATES VIII, L.C., a Utah limited liability company (“Boyer VIII”), BOYER RESEARCH PARK
ASSOCIATES IX, L.C., a Utah limited liability company (“Boyer
IX”),  and TEGRA LAKEVIEW
ASSOCIATES, L.C., a Utah limited liability company (“Tegra,”
and together with Boyer VIII and Boyer IX, collectively, the “Unitholders”).


 


RECITALS


 


WHEREAS,
the Company, Boyer VIII, HCPI/Utah II, LLC, a Delaware limited liability
company (the “Operating LLC”) and The Boyer
Company, L.C., a Utah limited liability company (“Boyer”)
entered into that certain Contribution Agreement and Escrow Instructions dated
as of February 28, 2007 (the “Boyer VIII Contribution
Agreement”) providing, among other things, for the contribution
of certain property by Boyer VIII to the Operating LLC, the contribution of
cash by the Company to the Operating LLC and the issuance by the Operating LLC
to Boyer VIII of certain LLC Units (as defined below), all as more particularly
described therein and in the other documents and instruments executed and
delivered by the applicable parties in connection therewith (collectively, the “Boyer VIII Transaction”).


 


WHEREAS,
the Company, Boyer IX, Tegra, the Operating LLC and Boyer have entered into
that certain Contribution Agreement and Escrow Instructions dated as of the
date hereof (the “Boyer IX/Tegra Contribution Agreement”)
providing, among other things, for the contribution of certain property by
Boyer IX and Tegra to the Operating LLC or a subsidiary of the Operating LLC,
the contribution of cash by the Company to the Operating LLC and the issuance
by the Operating LLC to Boyer IX and Tegra of certain LLC Units (as defined
below), all as more particularly described therein and in the other documents
and instruments executed and delivered by the applicable parties in connection
therewith (collectively, the “Boyer IX/Tegra Transaction”);
and


 


WHEREAS,
it is a condition to the closing of the transactions contemplated by the Boyer
IX/Tegra Contribution Agreement that the parties hereto enter into this
Agreement;


 


NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 


ARTICLE I.

DEFINITIONS


 


Section 1.1            Definitions.  The following capitalized
terms, as used in this Agreement, have the following meanings:


 


“Agreement” means this Registration
Rights Agreement, as it may be amended, supplemented or restated from time to
time.


 

















 


“Boyer VIII Contribution Agreement” has the
meaning set forth in the recitals to this Agreement.


 


“Boyer IX/Tegra Contribution Agreement” has the
meaning set forth in the recitals to this Agreement.


 


“Business Day” means any day except a
Saturday, Sunday or other day on which commercial banks in New York, New York,
Los Angeles, California or Salt Lake City, Utah are authorized by law to close.


 


“Closing Price” means (i) the closing
price of a share of Common Stock on the principal exchange on which shares of
Common Stock are then trading, if any, or (ii) if the Common Stock is not
publicly traded on an exchange, the mean between the closing bid and asked
prices for the Common Stock.


 


“Commission” means the Securities and
Exchange Commission.


 


“Common Stock” means the common stock, par
value $1.00 per share, of the Company.


 


“Company” has the meaning set forth
in the preamble to this Agreement.


 


“Contribution Agreement” means either
the Boyer VII Contribution Agreement or the Boyer IX/Tegra Contribution
Agreement, as applicable.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended.


 


“Exchangeable LLC Units” means either
the Third Traunch Exchangeable LLC Units or the Fourth Traunch Exchangeable LLC
Units, as applicable.


 


“Exchange Shares” means the
shares of Common Stock issued or issuable upon exchange of the Exchangeable LLC
Units.


 


“Existing Shelf Registration Statement” means the
Company’s registration statement on Form S-3, Commission File No. 331-161721.


 


“Fourth Traunch Exchangeable LLC Units” means Fourth
Traunch Non-Managing Member Units which may be exchanged for Common Stock
pursuant to the LLC Agreement.


 


“Fourth Traunch Non-Managing Member Units” has the
meaning set forth in the LLC Agreement.


 


“Holder” means any Person (including
a Unitholder) who is the record or beneficial owner of any Registrable Security
or any assignee or transferee of such Registrable Security (including
assignments or transfers of Registrable Securities to such assignees or
transferees as a result of the foreclosure on any loans secured by such
Registrable Securities) unless such Registrable Security is acquired in a sale
pursuant to a registration statement under 


 


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the
Securities Act or pursuant to a transaction exempt from registration under the
Securities Act, in each such case where the security sold in such transaction
may be resold without subsequent registration under the Securities Act.


 


“LLC Agreement” means the Amended and
Restated Limited Liability Company Agreement of the Operating LLC dated as of August 17,
2001, as the same may have been or may hereafter be amended, modified,
supplemented or restated from time to time.


 


“LLC Units” has the meaning set forth
in the LLC Agreement.


 


“Operating LLC” has the meaning set forth
in the recitals to this Agreement.


 


“Person” means an individual or a
corporation, partnership, limited liability company, association, trust, or any
other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.


 


“Records” has the meaning set forth
in Section 3.1(i).


 


“Registration Expenses” has the
meaning set forth in Section 3.3.


 


“Registrable Securities” means Exchange
Shares unless and until such Exchange Shares (i) have been sold or
transferred by a Holder to another Person pursuant to an effective registration
statement, (ii) have been sold by a Holder to another Person pursuant to
the provisions of Rule 144, (iii) may be sold pursuant to Rule 144
without any volume restrictions or restrictions imposed by Rule 144(c)(1),
or (iv) have been otherwise transferred in a transaction that would
constitute a sale under the Securities Act and such shares may be resold
without volume, manner of sale or other restrictions or conditions without
subsequent registration under the Securities Act.


 


“Resale Prospectus” has the
meaning set forth in Section 3.4.


 


“Resale Registration Statement” means any
registration statement of the Company pursuant to which Registrable Securities
held by the Holders may be offered and sold pursuant to the Securities Act
under Rule 415 on a continuous and delayed basis, including the Existing
Registration Statement.  Resale
Registration Statement shall include any prospectus or prospectus supplement
that is part of such Resale Registration Statement and any document
incorporated by reference therein.


 


“Rule 144”means Rule 144 under
the Securities Act (or any similar provisions then in force).


 


“Securities Act” means the Securities Act of
1933, as amended.


 


“Selling Holder” means a Holder who holds
Registrable Securities that may be offered and sold pursuant to a Resale
Registration Statement.


 


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“Third Traunch Exchangeable LLC Units” means Third
Traunch Non-Managing Member Units which may be exchanged for Common Stock
pursuant to the LLC Agreement.


 


“Third Traunch Non-Managing Member Units” has the
meaning set forth in the LLC Agreement.


 


“Unitholders” has the meaning set forth
in the preamble to this Agreement.


 


ARTICLE II.

FILING OF PROSPECTUS SUPPLEMENT


 


Section 2.1         Prospectus
Supplement.  Subject to the
provisions of Article III hereof, the Company will use commercially
reasonable efforts to file with the Commission, on or prior to July 26,
2011 (the “Registration Deadline”), a
prospectus supplement or such supplemental materials as are then required by
the rules and regulations of the Commission to register the resale by the
Holders of the Exchange Shares pursuant to the Existing Shelf Registration
Statement.   In the event the Company is,
despite its commercially reasonably efforts, unable to register the resale by
the Holders of the Exchange Shares pursuant to the Existing Shelf Registration
Statement on or before the Registration Deadline, the Company shall, within ten
(10) Business Days of the Registration Deadline, file a Resale
Registration Statement registering the resale by the Holders of the Exchange
Shares and shall cause such Resale Registration Statement to become effective
as soon as practicable, and in no event later than ninety (90) days after the
date first set forth above.  The Company
shall cause the Existing Shelf Registration Statement (or another Resale
Registration Statement under which the Exchange Shares are registered for
resale by Holders) to be continuously effective from the applicable effectiveness
deadline set forth above until the first date on which all of the Exchange
Shares cease to be Registrable Securities.


 


ARTICLE III.

REGISTRATION


 


Section 3.1         Registration Procedures.  In connection with any
Resale Registration Statement covering Registrable Securities:


 


(a)           The
Company shall provide copies to and permit a single counsel designated by the
Holder holding the largest amount of the Registrable Securities (which counsel
shall be Parr Brown Gee & Loveless, PC, unless the Company is otherwise
notified) to review each Resale Registration Statement, prospectus supplement
and all amendments and supplements thereto no fewer than two (2) Business
Days prior to their filing with the Commission and not file any document to
which any such counsel reasonably objects.


 


(b)           In
the event any Selling Holder transfers or assigns any Registrable Securities
held by such Holder, provided that such the Registrable Securities are
Registrable Securities in the hands of the assignee, Holder complies with all
laws applicable thereto and provides written notice of assignment to the
Company promptly after such assignment is effected and the assignee executes a
counterpart to this Agreement assuming all rights and obligations of a Holder
hereunder, as well as such other documentation that the 


 


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Company reasonably requests, the Company shall, within 30 days of its
receipt of all required documentation, file such amendments, supplements and
other documents as are necessary in order to permit the assignee to offer and
sell such Registrable Securities under the Resale Registration Statement under
which the transferor’s Registrable Securities were registered or required to be
registered.  All costs, including the
Company’s legal expenses and filing costs, associated with such amendments,
supplements and other documents shall be the responsibility of the transferring
Holder and shall be paid to the Company by such Holder within 5 days of the
Company’s request.


 


(c)           Each
Holder agrees to provide in a timely manner information requested by the
Company regarding the proposed distribution by that Holder of the Registrable
Securities and all other information reasonably requested by the Company.  If a Holder fails to comply with this Section 3.1(c),
such Holder will not be entitled to the benefits of Section 2.1 until the
Holder has complied with Section 3.1(c). 
If the Company is required to amend or supplement a Resale Registration
Statement due to the failure of a Holder to provide information in a timely
manner, all costs, including the Company’s legal expenses and filing costs,
associated with such amendment or supplement shall be the responsibility of the
Holder who failed to timely provide such information and shall be paid to the
Company by such Holder within 5 days of the Company’s request.


 


(d)           Subject
to Section 3.2 hereof, the Company will prepare and file with the
Commission such amendments, supplements and additional Resale Registration
Statements as may be necessary to comply with its obligations under Section 2.1.


 


(e)           The
Company will, if requested by any of the Holders, prior to filing any such
Resale Registration Statement or prospectus, or any amendment or supplement
thereto, furnish to each Selling Holder of the Registrable Securities covered
thereby copies of such Resale Registration Statement or prospectus or amendment
or supplement thereto as proposed to be filed, and thereafter furnish to such
Selling Holder such number of conformed copies of such Resale Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Resale Registration Statement 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.


 


(f)            The
Company will promptly notify each Selling Holder of Registrable Securities
covered by a Resale Registration Statement of any stop order issued or
threatened by the Commission and take all commercially reasonable actions
required to prevent the entry of such stop order or to remove it if entered.


 


(g)           The
Company will use reasonable efforts to register or qualify the Registrable
Securities under such securities or blue sky laws of those jurisdictions in the
United States (where an exemption is not available) as any Selling Holder
reasonably (in light of the Selling Holder’s intended plan of distribution)
requests; provided, however, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this paragraph (e), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction.


 


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(h)           If
the Selling Holders determine to engage an underwriter to assist with the offer
and sale of any Registrable Securities, the Company will enter into customary
agreements (including an underwriting agreement, if any, in customary form) as
are reasonably required in order to expedite or facilitate the disposition of
Registrable Securities with the assistance of such underwriter and file such amendments,
supplement and filings under the Securities Act and Exchange Act as are
necessary to cause the applicable Resale Registration Statement to contain all
information required under the Securities Act and related rules with
respect to the distribution through such underwriter.    Each Selling Holder participating in an
underwritten offering shall also enter into and perform its or his obligations
under the underwriting agreement.


 


(i)            The
Company shall cause all such Registrable Securities to be listed on each
securities exchange on which the Common Stock is then listed.


 


(j)            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
statement therein, in light of the circumstances then existing, not misleading
and promptly make available to each Selling Holder a reasonable number of copies
of any such supplement or amendment.


 


(k)           The
Company will make available for inspection by any Selling Holder of such
Registrable Securities, any underwriter participating in any disposition
pursuant to such Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other professional retained by any such Selling Holder or
underwriter (collectively, the “Inspectors”),
all financial and other records, pertinent corporate documents and properties
of the Company (collectively, the “Records”)
as shall be reasonably necessary to enable them to discharge their due
diligence responsibility under the Securities Act, and cause the Company’s
officers, directors and employees to supply all information reasonably
requested by any Inspectors in connection with the discharge of their due
diligence responsibility.  Records which
the Company determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors unless
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction. 
Each Selling Holder of such Registrable Securities agrees that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates or otherwise
disclosed by it unless and until such is made generally available to the
public.  Each Selling Holder of such
Registrable Securities further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential.


 


(l)            In
connection with a disposition of the Registrable Securities in which there is a
participating underwriter or underwriters, the Company will furnish to each
underwriter, a signed counterpart, addressed to such Selling Holder or
underwriter, (i) an opinion 


 


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or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company’s independent public accountants (to the
extent permitted by the standards of the American Institute of Certified Public
Accountants), each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the
Holders of a majority of the Registrable Securities included in such offering
or the managing underwriter or underwriters therefor reasonably requests.


 


Section 3.2         Material Developments;
Suspension of Offering.


 


(a)           Notwithstanding
the provisions of Sections 2.1 or any other provisions of this Agreement to the
contrary, the Company shall not be required to file a Resale Registration
Statement or prospectus, or any amendment or supplement thereto, or to keep any
Resale Registration Statement effective if the negotiation or consummation of a
transaction by the Company or any of its subsidiaries is pending or an event
has occurred, which negotiation, consummation or event would require additional
disclosure by the Company in the Resale Registration Statement of material
information which the Company (in the judgment of management of the Company)
has a bona fide business purpose for keeping confidential and the
nondisclosure of which in the Resale Registration Statement might cause the Resale
Registration Statement to fail to comply with applicable disclosure
requirements (any such transaction, a “Material Transaction”);
provided, however, that the Company (i) will promptly notify
the Holders of Registrable Securities otherwise entitled to registration of the
foregoing and (ii) may not delay, suspend or withdraw the Resale
Registration Statement for such reason more than twice in any twelve (12) month
period or three times in any twenty-four (24) month period or for more than
ninety (90) days at any time.  Upon
receipt of any notice from the Company of the happening of any event during the
period the Resale Registration Statement is effective which is of a type
specified in the preceding sentence or as a result of which the Resale
Registration Statement or related prospectus contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statement therein, in light of the circumstances under
which they were made not misleading, Holders agree that they will immediately
discontinue offers and sales of the Registrable Securities under the Resale
Registration Statement (until they receive copies of a supplemental or amended
prospectus that corrects the misstatements or omissions and receive notice that
any post-effective amendment has become effective).  If so directed by the Company, Holders will
deliver to the Company any copies of the prospectus covering the Registrable
Securities in their possession at the time of receipt of such notice.  Each Holder agrees to keep confidential the
fact that the Company has exercised its rights under this Section 3.2 and
all facts and circumstances relating to such exercise until such information is
made public by the Company.


 


(b)           If
all reports required to be filed by the Company pursuant to the Exchange Act
have not been filed by the required date without regard to any extension, or if
the consummation of any business combination by the Company has occurred or is
probable for purposes of Rule 3-05 or Article 11 of
Regulation S-X under the Securities Act, upon written notice thereof by
the Company to the Holders, the rights of the Holders sell or distribute any
Registrable Securities pursuant to any Resale Registration Statement or to require
the Company to take action with respect to the registration of any Registrable
Securities pursuant to this Agreement shall be suspended until the date on
which the Company has filed such reports or obtained and filed the financial
information required by Rule 3-05 or Article 11 of 


 


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Regulation S-X to be included or incorporated by reference, as
applicable, in any Resale Registration Statement and the Company shall notify
the Holders as promptly as practicable when such suspension is no longer
required. The Company’s rights to suspend its obligations under this Section 3.2(b) shall
be in additional to its rights under Section 3.2(a).


 


Section 3.3         Registration Expenses.  Except as otherwise provided
in the Boyer IX/Tegra Contribution Agreement, or as otherwise expressly
provided herein, in connection with any registration of Registrable Securities
required hereunder, the Company shall pay the following registration expenses
incurred in connection with the registration (the “Registration Expenses”): (i) all
registration and filing fees, (ii) fees and expenses of compliance with
securities or blue sky laws (including the reasonable fees and expenses of
counsel to the Company), (iii) printing expenses, (iv) internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), (v) the
fees and expenses incurred in connection with the listing of the Registrable
Securities on each securities exchange on which the Common Stock is then
listed, (vi) fees and disbursements of counsel for the Company and the
independent public accountants of the Company, and (vii) the fees and
expenses of any experts retained by the Company in connection with such
registration.  The Holders shall be
responsible for the payment of any and all other expenses incurred by them in
connection with the registration and sale of Registrable Securities, including,
without limitation, brokerage and sales commissions, underwriting fees and
placement agent fees, discounts and commissions attributable to the Registrable
Securities, fees and disbursements of counsel engaged by the Holders, and any
transfer taxes relating to the sale or disposition of the Registrable
Securities.


 


Section 3.4         Indemnification by the
Company.  The Company
agrees to indemnify and hold harmless each Selling Holder, its officers,
directors, employees, representatives, and agents, and each Person, if any, who
controls such Selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, actions, damages, liabilities, costs and expenses
(including, without limitation, but subject to the provisions of Section 3.6
hereof, reasonable attorneys’ fees and disbursements caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Resale Registration Statement or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, or arising out of any untrue statement or alleged untrue statement
of a material fact contained in any prospectus contained in a Resale
Registration Statement (a “Resale
Prospectus”), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading,  except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in
writing to the Company by such Selling Holder or on such Selling Holder’s behalf
expressly for inclusion therein.


 


Section 3.5         Indemnification by Holders
of Registrable Securities. Each Selling Holder of
Registrable Securities covered by a Registration Statement agrees to indemnify
and hold harmless the Company, its officers, directors and agents and each
Person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent
as the indemnity set forth in 


 


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Section 3.4
from the Company to Selling Holders, but only with respect to information
relating to such Selling Holder furnished in writing by such Selling Holder or
on such Selling Holder’s behalf expressly for use in any Resale Registration
Statement or Resale Prospectus or any amendment or supplement thereto. Each
Holder also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act on substantially the same
basis as that of the indemnification of the Company provided in this Section 3.5.


 


Section 3.6         Conduct of Indemnification Proceedings. 
Each indemnified party shall give reasonably prompt
notice to each indemnifying party of any action or proceeding commenced against
it in respect of which indemnity may be sought hereunder, but failure to so
notify the indemnifying party (i) shall not relieve the indemnifying party
from any liability which it may have under the indemnity agreement provided in Section 3.4
or 3.5 above, unless and to the extent it did not otherwise learn of such
action and the lack of notice by the indemnified party results in the forfeiture
by the indemnifying party of substantial rights and defenses and (ii) shall
not, in any event, relieve the indemnifying party from any obligations to the
indemnified party other than the indemnification obligation provided under Section 3.4
or 3.5 above.  If the indemnifying party
so elects within a reasonable time after receipt of notice, the indemnifying
party may assume the defense of the action or proceeding at the indemnifying
party’s own expense with counsel chosen by the indemnifying party and approved
by the indemnified party, which approval shall not be unreasonably withheld; provided,
however, that if the defendants in any such action or proceeding include
both the indemnified party and the indemnifying party and the indemnified party
reasonably determines based upon advice of legal counsel experienced in such
matters, that there may be legal defenses available to it which are different
from or in addition to those available to the indemnifying party, then the
indemnified party shall be entitled to separate counsel at the indemnifying
party’s expense, which counsel shall be chosen by the indemnified party and
approved by the indemnifying party, which approval shall not be unreasonably
withheld; provided  further, that it is understood that the indemnifying
party shall not be liable for the fees, charges and disbursements of more than
one separate firm.  If the indemnifying
party does not assume the defense, after having received the notice referred to
in the first sentence of this Section, the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party; in that
event, however, the indemnifying party will not be liable for any settlement
effected without the written consent of the indemnifying party.  If an indemnifying party assumes the defense
of an action or proceeding in accordance with this Section 3.6, the
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified party incurred thereafter in connection with that action or
proceeding except as set forth in the proviso in the second sentence of this Section 3.6.  Unless and until a final judgment is rendered
that an indemnified party is not entitled to the costs of defense under the
provisions of this Section, the indemnifying party shall reimburse, promptly as
they are incurred, the indemnified party’s costs of defense.


 


Section 3.7         Contribution.


 


(a)           If
the indemnification provided for in Section 3.4 or 3.5 hereof is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party, in lieu of indemnifying such 


 


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indemnified party, shall contribute to the amount paid or payable by indemnified
party as a result of such losses, claims, damages or liabilities as between the
Company on the one hand and each Selling Holder on the other, in such
proportion as is appropriate to reflect the relative fault of the Company and
of each Selling Holder in connection with such statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations.  The
relative fault of the Company on the one hand and of each Selling Holder on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or such Selling Holder, and the Company’s and the Selling Holder’s
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.


 


(b)           The
Company and the Selling Holders agree that it would not be just and equitable
if contribution pursuant to this Section 3.7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 3.7(a).  The amount paid or payable by an indemnifying
party as a result of the losses, claims, damages or liabilities referred to in
Sections 3.4 and 3.5 hereof shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
the indemnified party in connection with investigating or defending any such
action or claim.  Notwithstanding the
provisions of this Section 3.7, no Selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the securities of such Selling Holder were offered to the public exceeds the
amount of any damages which such Selling Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.


 


Section 3.8         Participation in
Underwritten Offerings.  No Holder may
participate in any underwritten registration hereunder unless the Holder (a) agrees
to sell his or its Registrable Securities on the basis provided in the
applicable underwriting arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents in customary form as reasonably required under the terms of
such underwriting arrangements.


 


ARTICLE IV.

MISCELLANEOUS


 


Section 4.1         Specific Performance.  The parties hereto
acknowledge that there would be no adequate remedy at law if any party fails to
perform any of its obligations hereunder, and accordingly agree that each
party, in addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligation of
any other party under this Agreement in accordance with the terms and
conditions of this Agreement in any court of the United States or any State
thereof having jurisdiction,


 


Section 4.2         Amendments and Waivers.  The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be 


 


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given
without the prior written consent of the Company and the Holders holding at
least two-thirds (2/3rds) of the then outstanding Registrable Securities and
Exchangeable LLC Units.  No failure or
delay by any party to insist upon the strict performance of any covenant, duty,
agreement or condition of this Agreement or to exercise any right or remedy
consequent upon any breach thereof shall constitute a waiver of any such breach
or any other covenant, duty, agreement or condition.


 


Section 4.3         Notices.  Any notice required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given (a) when delivered by hand or electronic mail or
upon transmission by a facsimile transmission device, (b) on the date
delivered by a courier service, or (c) on the fifth Business Day after
mailing by registered or certified mail, postage prepaid, return receipt
requested, in any case addressed as follows:


 


(a)           if
to any Holder, to c/o The Boyer Company, L.C., 127 South 500 East, Suite 310,
Salt Lake City, Utah 84102, or to such other address and to such other Persons
as the Holders may hereafter notify the Company in writing; and


 


(b)           if
to the Company, to HCP, Inc., 3760 Kilroy Airport Way, Suite 300,
Long Beach, California 90806 (Attention: 
Legal Department), or to such other address as the Company may hereafter
specify in writing.


 


Section 4.4         Successors and Assigns.  (a) A Holder may
transfer or assign, in whole or from time to time in part, to one or more
Persons its rights hereunder in connection with the transfer of Registrable
Securities by such Holder to such Person, provided that such Holder complies
with all laws applicable thereto and provides written notice of assignment to
the Company promptly after such assignment is effected and the assignee
executes a counterpart to this Agreement assuming all rights and obligations of
a Holder hereunder.


 


Section 4.5         Counterparts.  This Agreement may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.


 


Section 4.6         Governing Law.  This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
California without regard to the conflicts of law provisions thereof.


 


Section 4.7         Severability.  In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.


 


Section 4.8         Entire Agreement.  This Agreement is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject 


 


11

















 


matter
contained herein.  This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter of this Agreement.


 


Section 4.9         Headings.  The headings in this
Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning of any provision of this Agreement.


 


Section 4.10       Selling Holders Become
Party to this Agreement.  By asserting or
participating in the benefits of registration of Registrable Securities
pursuant to this Agreement, each Holder agrees that it or he will be deemed a
party to this Agreement and be bound by each of its terms.


 


Section 4.11       Rule 144.  The Company covenants that
it will file any reports required to be filed by it under the Securities Act
and the Exchange Act to the extent required from time to time to enable Holders
to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemptions provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time.  Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has filed such
reports.


 


[Signatures follow on next page]


 


12

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.


 


	
   

  	
  “COMPANY”

  
	
   

  	
   

  
	
   

  	
  HCP, INC.,
  a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Timothy M. Schoen

  
	
   

  	
   

  	
  TIMOTHY
  M. SCHOEN

  
	
   

  	
   

  	
  EXECUTIVE
  VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  “UNITHOLDERS”

  
	
   

  	
   

  
	
   

  	
  THE
  BOYER COMPANY, L.C.,

  
	
   

  	
  a
  Utah limited liability company,

  
	
   

  	
  in
  its capacity as Manager or Managing Member of

  
	
   

  	
  each
  limited liability company named below as a

  
	
   

  	
  “Unitholder”

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven B. Ostler

  
	
   

  	
   

  	
  Steven
  B. Ostler

  
	
   

  	
   

  	
  Manager

  
				



 


	
  Property

  	
   

  	
  Unitholder

  
	
   

  	
   

  	
   

  
	
  [LAKEVIEW]

  	
   

  	
  TEGRA
  LAKEVIEW ASSOCIATES, L.C., a Utah limited liability company

  
	
   

  	
   

  	
   

  
	
  [MYRIAD
  IV]

  	
   

  	
  BOYER
  RESEARCH PARK ASSOCIATES VIII, L.C., a Utah limited liability company

  
	
   

  	
   

  	
   

  
	
  [MYRIAD
  V]

  	
   

  	
  BOYER
  RESEARCH PARK ASSOCIATES IX, L.C., a Utah limited liability company

  



 


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