Exhibit 99.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
BY AND BETWEEN
BOSTON PROPERTIES, INC.
AND THE
HOLDERS NAMED HEREIN
Date: May 28, 1998
TABLE OF CONTENTS
Page
----
1. Certain Definitions 1
2. Lock-up Agreement 3
3. Registration 4
4. State Securities Laws 7
5. Expenses 7
6. Indemnification by the Company 8
7. Covenants of Holders 8
8. Suspension of Registration Requirement: Restriction on Sales 9
9. Black-Out Period 10
10. Additional Shares 10
11. Contribution 10
12. No Other Obligation to Register 11
13. Amendments and Waivers 11
14. Notices 11
15. Successors and Assigns 12
16. Counterparts 12
17. Governing Law 12
18. Severability 12
19. Entire Agreement 12
RIGHTS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
------------------------------------------------
This Registration Rights and Lock-Up Agreement (this "Agreement") is
entered into as of May 28, 1998, by and among Boston Properties, Inc., a
Delaware corporation (the "Company"), and certain limited partners of Boston
Properties Limited Partnership, a Delaware limited partnership, who have
executed a signature page to this Agreement (each a "Holder" and, collectively,
the "Holders").
WHEREAS, concurrently herewith the Holders are receiving units of limited
partnership interest ("Units") in Boston Properties Limited Partnership (the
"Operating Partnership"), which Units may be exchanged, at a later date and
subject to certain conditions set forth in the Limited Partnership Agreement of
the Operating Partnership, for shares of common stock of the Company, $.01 par
value ("Common Shares"), in each case issued or to be issued without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to that certain Contribution Agreement dated as of April 3, 1998
(the "Contribution Agreement"), between the Operating Partnership, Tower-Xxxxxx
Limited Partnership ("TDLP") and Tower Construction Group, L.L.C. ("TCG") (TDLP
and TCG being hereinafter collectively referred to as the "Contributors"); and
WHEREAS, it is a condition precedent to the obligations of the Contributors
to consummate the transactions described in the Contribution Agreement that the
Company provide the Holders with the registration rights set forth in Section 3
hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions.
-------------------
As used in this Agreement, in addition to the other terms defined herein,
the following capitalized defined terms shall have the following meanings:
"NASD" shall mean the National Association of Securities Dealers, Inc.
----
"Person" shall mean an individual, partnership, corporation, trust, or
------
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
----------
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including post-
effective amendments, and in each case including all material incorporated by
reference therein.
"Registrable Shares" (a) when used with respect to a Holder, shall mean
------------------
the Shares of such Holder, excluding (i) Shares for which a Registration
Statement relating to the sale thereof shall have become effective under the
Securities Act and which have been issued or disposed of
under such Registration Statement, (ii) Shares sold pursuant to Rule 144 or
(iii) Shares eligible for sale pursuant to Rule 144(k) (or any successor
provision) and (b) when used without reference to a Holder, shall mean the
Registrable Shares of all Holders.
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 5 hereof; and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by a
selling Holder, the fees and disbursements of counsel representing a selling
Holder, and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a selling Holder, all of which shall be borne by such
Holder in all cases.
"Registration Statement" shall mean any registration statement of the
----------------------
Company which covers the issuance or resale of any of the Registrable Shares on
an appropriate form, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all materials
incorporated by reference therein.
"Rule 144" means Rule 144 under the Securities Act (or any successor
--------
provision).
"SEC" shall mean the Securities and Exchange Commission.
---
"Shares" (a) when used with respect to a Holder, shall mean any Common
------
Shares issuable to the Holder upon redemption or in exchange for Units held by
such Holder, and (b) when used without reference to a Holder, shall mean the
Shares of all Holders.
2. Lock-up Agreement.
-----------------
(a) Each Holder hereby agrees that, except as set forth in Section
2(b) below, for a period of 366 days from the date hereof (the "Lock-up
Period"), without the prior written consent of the Company, such Holder will not
offer, pledge, sell, contract to sell, grant any options for the sale of, seek
the redemption or exchange of, or otherwise dispose of, directly or indirectly
(collectively, "Dispose of"), any Units (the "Lock-up").
(b) The following Dispositions of Units shall not be subject to
the Lock-up set forth in Section 2(a):
2 of 18
(i) a Holder who is a natural person may Dispose of Units to his
or her spouse, siblings, parents or any natural or adopted children or other
descendants or to any personal trust in which any such family member or such
Holder retains the entire beneficial interest;
(ii) a Holder that is a corporation, partnership, joint venture or
other business entity may Dispose of Units to one or more Persons who have an
ownership interest in such Holder or to one or more other entities that are
wholly owned and controlled, legally and beneficially, by such Holder or by one
or more of the Persons who have an ownership interest in such Holder;
(iii) a Holder may Dispose of Units on his or her death to such
Holder's estate, executor, administrator or personal representative or to such
Holder's beneficiaries pursuant to a devise or bequest or by laws of descent and
distribution;
(iv) a Holder may Dispose of Units as a gift or other transfer
without consideration; and
(v) a Holder may Dispose of Units pursuant to a pledge, grant of
security interest or other encumbrance effected in a bona fide transaction with
an unrelated and unaffiliated pledgee, and such a pledgee may foreclose upon
such Units;
provided, however, that in the case of any transfer of Units pursuant to clauses
-------- -------
(i), (ii), (iv) and (v), the transferor shall, at the request of the Company,
provide evidence satisfactory to the Company that the transfer is exempt from
the registration requirements of the Securities Act.
In the event a Holder Disposes of Units as described in this Section 2(b), such
Units shall remain subject to this Agreement and, as a condition of the validity
of such disposition, the transferee shall be required to execute and deliver a
counterpart of this Agreement (except that a pledgee shall not be required to
execute and deliver a counterpart of this Agreement until it forecloses upon
such Units). Thereafter, such transferee shall be deemed to be a Holder for
purposes of this Agreement.
3. Registration.
------------
(a) Filing of Resale Shelf Registration Statement. Subject to the
----------------------------------------------
conditions set forth in this Agreement, the Company shall, prior to the
expiration of the Lock-Up Period, cause to be filed a Registration Statement
under Rule 415 under the Securities Act relating to the sale by the Holders of
all of the Registrable Shares of the Holders in accordance with the terms
hereof, and shall use reasonable efforts to cause such Registration Statement to
be declared effective by the SEC by that date which is 390 days after the date
hereof. The Company agrees to use reasonable efforts to keep the Registration
Statement, after its date of effectiveness, continuously effective with respect
to the Registrable Shares of a particular Holder until the earlier of (a) the
date on which such Holder no longer holds any Registrable Shares or (b) the date
on which all of the Registrable Shares held by such Holder have become eligible
for sale pursuant to Rule 144(k) (or any successor provision) (hereinafter
referred to as the "Resale Shelf Registration Expiration Date").
3 of 18
(b) Registration Statement Covering Issuance of Common Stock.
--------------------------------------------------------
In lieu of the registration rights set forth in Section 3(a) above, the Company
may, in its sole discretion, prior to the first date upon which the Units held
by the Holders may be redeemed (or such earlier date as may be required under
applicable provisions of the Securities Act), file a registration statement (the
"Issuance Registration Statement") under Rule 415 under the Securities Act
relating to the issuance to Holders of Common Shares upon the redemption of
Units or in exchange for Units. Thereupon, the Company shall use reasonable
efforts to cause such Registration Statement to be declared effective by the SEC
for all Common Shares covered thereby. The Company agrees to use reasonable
efforts to keep the Issuance Registration Statement continuously effective, with
respect to the Registrable Shares of a particular Holder, until the date on
which such Holder has redeemed or exchanged such Holder's Units for Common
Stock. In the event that the Company is unable to cause such Issuance
Registration Statement to be declared effective by the SEC or (except as
otherwise permitted by Sections 8(b) and 9) is unable to keep such Issuance
Registration Statement effective until the date on which each Holder has
redeemed or exchanged such Holder's Units for Common Stock, then the rights of
each Holder set forth in Section 3(a) above shall be restored.
(c) Demand Registration. Subject to the conditions set forth in
-------------------
this Agreement, at any time after the Resale Shelf Registration Expiration Date,
and while any Registrable Shares are outstanding, the Company shall, at the
written request of any Holder who is unable to sell its Registrable Shares
pursuant to Rule 144(k) (or any successor provision), cause to be filed as soon
as practicable after the date of such request by such Holder a Registration
Statement under Rule 415 under the Securities Act relating to the sale by the
Holder of all of the Registrable Shares held by such Holder in accordance with
the terms hereof, and shall use reasonable efforts to cause such Registration
Statement to be declared effective by the SEC as soon as practicable thereafter.
The Company may, in its sole discretion, elect to file the Registration
Statement before receipt of notice from any Holder. The Company agrees to use
reasonable efforts to keep the Registration Statement continuously effective,
after its date of effectiveness, until the date on which such Holder no longer
holds any Registrable Shares.
(d) Piggyback Registration. If, at any time after the Resale Shelf
----------------------
Registration Expiration Date, and while any Registrable Shares or Units are
outstanding and a Registration Statement applicable to Holder under Sections
3(a), 3(b) or 3(c) is not effective, the Company (in its sole discretion and
without any obligation to do so) proposes to file a registration statement under
the Securities Act with respect to an offering solely of Common Shares solely
for cash (other than a registration statement (i) on Form S-8 or any successor
form to such Form or in connection with any employee or director welfare,
benefit or compensation plan, (ii) on Form S-4 or any successor form to such
Form or in connection with an exchange offer, (iii) in connection with a rights
offering exclusively to existing holders of Common Shares, (iv) in connection
with an offering solely to employees of the Company or its subsidiaries, or (v)
relating to a transaction pursuant to Rule 145 of the Securities Act), for its
own account, the Company shall give prompt written notice of such proposed
filing to the Holders. The notice referred to in the preceding sentence shall
offer Holder the opportunity to register such amount of Registrable Shares as
each Holder may request (a "Piggyback Registration"). Subject to the provisions
of Section 4 below,
4 of 18
the Company shall include in such Piggyback Registration, in the registration
and qualification for sale under the blue sky or securities laws of the various
states and in any underwriting in connection therewith all Registrable Shares
for which the Company has received written requests for inclusion therein within
ten (10) calendar days after the notice referred to above has been given by the
Company to the Holders. Holders of Registrable Shares shall be permitted to
withdraw all or part of the Registrable Shares from a Piggyback Registration at
any time prior to the effective date of such Piggyback Registration. If a
Piggyback Registration is an underwritten primary registration on behalf of the
Company and the managing underwriter advises the Company that the total number
of Common Shares requested to be included in such registration exceeds the
number of Common Shares that can be sold in such offering without impairing the
pricing or other commercial practicality of such offering, the Company will
include in such registration in the following priority: (i) first, all Common
Shares the Company proposes to sell, (ii) second, up to the full number of
Common Shares requested to be included in such registration by the holders
identified in that certain Registration Rights and Lock-Up Agreement dated June
23, 1997, as amended from time to time, by and among Boston Properties, Inc.,
and such holders, and (iii) third, up to the full number of Common Shares
requested to be included in such registration by the Holders and any other
holders of Common Shares or of Units that may be exchanged for Common Shares who
are parties to similar Registration Rights and Lock-Up Agreements with the
Company (other than the Agreement referred to in clause (ii)), provided that, in
the case of clauses (ii) and (iii) the number of Common Shares to be included
will be based on the number of Common Shares that can be sold in the opinion of
such managing underwriter without adversely affecting the price range or
probability of success of such offering. The number of Common Shares that the
managing underwriter determines is available for purposes of clause (iii) shall
be allocated pro rata among the Holders and the other holders described in
clause (iii) on the basis of the number of Common Shares requested to be
included by them in such registration.
(e) Notification and Distribution of Materials. The Company shall
------------------------------------------
notify each Holder of the effectiveness of any Registration Statement applicable
to the Shares of such Holder and shall furnish to each such Holder such number
of copies of the Registration Statement (including any amendments, supplements
and exhibits), the Prospectus contained therein (including each preliminary
prospectus and all related amendments and supplements) and any documents
incorporated by reference in the Registration Statement or such other documents
as such Holder may reasonably request in order to facilitate its sale of the
Registrable Shares in the manner described in the Registration Statement.
(f) Amendments and Supplements. The Company shall prepare and file
--------------------------
with the SEC from time to time such amendments and supplements to the
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all the
Registrable Shares until the earlier of (a) such time as all of the Registrable
Shares have been issued or disposed of in accordance with the intended methods
of disposition by the Holder or issuance by the Company as set forth in the
Registration Statement or (b) the date on which the Registration Statement
ceases to be effective in accordance with the terms of this Section 3. Upon
twenty (20) business days' notice, the Company shall file any supplement or
post-effective amendment to the Registration Statement with respect to the
plan of distribution or such Holder's ownership interests in Registrable
Shares that is reasonably necessary to permit the sale of the
5 of 18
Holder's Registrable Shares pursuant to the Registration Statement. The Company
shall file any necessary listing applications or amendments to the existing
applications to cause the Shares registered under any Registration Statement to
be then listed or quoted on the primary exchange or quotation system on which
the Common Shares are then listed or quoted.
(g) Notice of Certain Events. The Company shall promptly notify
------------------------
each Holder of, and confirm in writing, the filing of the Registration Statement
or any Prospectus, amendment or supplement related thereto or any post-effective
amendment to the Registration Statement and the effectiveness of any post-
effective amendment.
At any time when a Prospectus relating to the Registration Statement is
required to be delivered under the Securities Act by a Holder to a transferee,
the Company shall immediately notify each Holder of the happening of any event
as a result of which the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. In such event, the Company shall promptly prepare and furnish
to each applicable Holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of Registrable Shares, such Prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Company will, if necessary, amend the Registration Statement of which such
Prospectus is a part to reflect such amendment or supplement.
(h) Exchange Listing. The Company shall use reasonable efforts to
----------------
cause any Common Shares that are issued upon redemption or in exchange for Units
held by Holders to be listed on the principal securities exchange on which
Common Shares at such time are listed.
(i) Rule 153. The Company shall file a sufficient number of copies
--------
of the Prospectus and any post-effective amendments or supplements thereto with
the New York Stock Exchange (or, if the Common shares are no longer listed on
the New York Stock Exchange, with such other exchange or market on which the
Common Shares are then listed) so as to enable the Holders to have the benefits
of the prospectus delivery provisions of Rule 153 under the Securities Act.
(j) Compliance with Filing of Exchange Act Regulations. The company
--------------------------------------------------
covenants that, so long as it is subject to the reporting requirements of the
Exchange Act, it will file with the SEC the reports required to be filed by it
under the Exchange Act.
(k) Rule 144 Cooperation. In connection with any sale, transfer or
--------------------
other disposition by any Holder of any Registrable Securities pursuant to Rule
144 under the Securities Act, the Company shall cooperate with such Holder to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any Securities Act legend, and
enable certificates for such Registrable Securities to be for such number of
shares and registered in such names as the selling Holders may reasonably
request. The Company's obligation set forth in the previous sentence shall be
subject to the delivery, if reasonably requested by the Company or its transfer
agent, by counsel to such Holder, in form and substance reasonably satisfactory
to the Company and its transfer agent, of an opinion that such Securities Act
legend need not appear on such certificate.
6 of 18
4. State Securities Laws.
---------------------
Subject to the conditions set forth in this Agreement, the Company shall,
in connection with the filing of any Registration Statement hereunder, file such
documents as may be necessary to register or qualify the Registrable Shares
under the securities or "Blue Sky" laws of such states as any Holder may
reasonably request, and the Company shall use its best efforts to cause such
filings to become effective; provided, however, that the Company shall not be
-------- -------
obligated to qualify as a foreign corporation to do business under the laws of
any such state in which it is not then qualified or to file any general consent
to service of process in any such state. Once effective, the Company shall use
its best efforts to keep such filings effective until the earlier of (a) such
time as all of the Registrable Shares have been disposed of in accordance with
the intended methods of disposition by the Holder as set forth in the
Registration Statement, (b) in the case of a particular state, a Holder has
notified the Company that it no longer requires an effective filing in such
state in accordance with its original request for filing or (c) the date on
which the Registration Statement ceases to be effective.
5. Expenses.
--------
The Company shall bear all Registration Expenses incurred in connection
with the registration of the Registrable Shares pursuant to this Agreement,
except that each Holder shall be responsible for any brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable Shares
sold by it and for any legal, accounting and other expenses incurred by it.
6. Indemnification by the Company.
------------------------------
The Company agrees to indemnify each of the Holders and their respective
officers, directors, employees, agents, representatives and affiliates, and each
person or entity, if any, that controls a Holder within the meaning of the
Securities Act, and each other person or entity, if any, subject to liability
because of his, her or its connection with a Holder (each, an "Indemnitee"),
against any and all losses, claims, damages, actions, liabilities, costs and
expenses (including without limitation reasonable fees, expenses and
disbursements of attorneys and other professionals), joint or several, arising
out of or based upon any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any Registration
Statement or Prospectus, or upon any untrue or alleged untrue statement of
material fact contained in the Registration Statement or any Prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, that the
--------
Company shall not be liable to such Indemnitee or any person who participates as
an underwriter in the offering or sale of Registrable Shares or any other
person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (i) an untrue statement or alleged untrue statement or
omission or
7 of 18
alleged omission made in such Registration Statement or in any such
Prospectus in reliance upon and in conformity with information regarding such
Indemnitee or its plan of distribution or ownership interests which was
furnished to the Company for use in connection with the Registration Statement
or the Prospectus contained therein by such Indemnitee or (ii) such Holder's
failure to send or give a copy of the final, amended or supplemented prospectus
furnished to the Holder by the Company at or prior to the time such action is
required by the Securities Act to the person claiming an untrue statement or
alleged untrue statement or omission or alleged omission if such statement or
omission was corrected in such final, amended or supplemented prospectus.
7. Covenants of Holders.
--------------------
Each of the Holders hereby agrees (a) to cooperate with the Company and to
furnish to the Company all such information concerning its plan of distribution
and ownership interests with respect to its Registrable Shares in connection
with the preparation of a Registration Statement with respect to such Holder's
Registrable Shares and any filings with any state securities commissions as the
Company may reasonably request, (b) to deliver or cause delivery of the
Prospectus contained in such Registration Statement (other than an Issuance
Registration Statement) to any purchaser of the shares covered by such
Registration Statement from the Holder and (c) to indemnify the Company, its
officers, directors, employees, agents, representatives and affiliates, and each
person, if any, who controls the Company within the meaning of the Securities
Act, and each other person, if any, subject to liability because of his
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either such Registration Statement or the Prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if and to the extent
that such statement or omission occurs from reliance upon and in conformity with
written information regarding the Holder, its plan of distribution or its
ownership interests, which was furnished to the Company by the Holder for use
therein unless such statement or omission was corrected in writing to the
Company not less than three (3) business days prior to the date of the final
prospectus (as supplemented or amended, as the case may be) or (ii) the failure
by the Holder to deliver or cause to be delivered the Prospectus contained in
such Registration Statement (as amended or supplemented if applicable) furnished
by the Company to the Holder to any purchaser of the shares covered by such
Registration Statement from the Holder through no fault of the Company. The
liability of the Holders under the preceding indemnity shall be several and not
joint.
8. Suspension of Registration Requirement: Restriction on Sales.
------------------------------------------------------------
(a) The Company shall promptly notify each Holder of, and confirm
in writing, the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement with respect to such Holder's
Registrable Shares or the initiation of any proceedings for that purpose. The
Company shall use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such a Registration Statement at the earliest
possible moment.
8 of 18
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a Registration Statement shall be suspended
in the event and during such period as unforeseen circumstances exist (including
without limitation (i) an underwritten primary offering by the Company if the
Company is advised by the underwriters that the sale of Registrable Shares under
the Registration Statement would impair the pricing or commercial practicality
of the primary offering or (ii) pending negotiations relating to, or
consummation of, a transaction or the occurrence of an event that would require
additional disclosure of material information by the Company in the Registration
Statement or such filing, as to which the Company has a bona fide business
purpose for preserving confidentiality or which renders the Company unable to
comply with SEC requirements) (such unforeseen circumstances being hereinafter
referred to as a "Suspension Event") that would make it impractical or
inadvisable to cause the Registration Statement or such filings to become
effective or to amend or supplement the Registration Statement, but any one such
suspension shall continue for not more than 180 consecutive days. The Company
shall notify the Holders of the existence and, in the case of circumstances
referred to in clause (i) of this Section 8(b), nature of any Suspension Event.
(c) Each Holder of Registrable Shares agrees, if requested by the
Company in the case of a Company-initiated non-underwritten offering, or if
requested by the managing underwriter or underwriters in a Company-initiated
underwritten offering, not to effect any public sale or distribution of any of
the securities of the Company, including a sale pursuant to Rule 144, during the
15-day period prior to, and during the 60-day period beginning on, the date of
effectiveness of the registration statement relating to such Company-initiated
offering.
9. Black-Out Period.
----------------
Each Holder agrees that, following the effectiveness of any Registration
Statement (except an Issuance Registration Statement) relating to Registrable
Shares of such Holder, such Holder will not effect any sales of the Registrable
Shares pursuant to the Registration Statement or any filings with any state
Securities Commission at any time after such Holder has received notice from the
Company to suspend sales as a result of the occurrence or existence of any
Suspension Event or so that the Company may correct or update the Registration
Statement or such filing. The Holder may recommence effecting sales of the
Shares pursuant to the Registration Statement or such filings following further
notice to such effect from the Company, which notice shall be given by the
Company not later than five (5) business days after the conclusion of any such
Suspension Event.
10. Additional Shares.
-----------------
The Company, at its option, may register, under any Registration Statement
and any filings with any state securities commissions filed pursuant to this
Agreement, any number of unissued Common Shares of the Company or any Common
Shares of the Company owned by any other shareholder or shareholders of the
Company.
9 of 18
11. Contribution.
------------
If the indemnification provided for in Sections 6 and 7 is unavailable to
an indemnified party with respect to any losses, claims, damages, actions,
liabilities, costs or expenses referred to therein or is insufficient to hold
the indemnified party harmless as contemplated therein, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, actions, liabilities, costs or expenses in such proportion as
is appropriate to reflect the relative fault of the Company, on the one hand,
and the Indemnitee, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, actions, liabilities,
costs or expenses as well as any other relevant equitable considerations. The
relative fault of the Company, on the one hand, and of the Indemnitee, on the
other hand, shall be determined by reference to, among other factors, whether
the untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company or by the
Indemnitee and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission; provided,
--------
however, that in no event shall the obligation of any indemnifying party to
-------
contribute under this Section 11 exceed the amount that such indemnifying party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Sections 6 or 7 hereof had been available
under the circumstances.
The Company and the Holders agree that it would be just and equitable if
contribution pursuant to this Section 11 were determined by pro rata allocation
--------
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 11, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of Shares exceeds the amount of any damages that the
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
12. No Other Obligation to Register.
-------------------------------
Except as otherwise expressly provided in this Agreement, the Company shall
have no obligation to the Holders to register the Registrable Shares under the
Securities Act.
13. Amendments and Waivers.
----------------------
The provisions of this Agreement may not be amended, modified, or
supplemented or waived without the prior written consent of the Company and
Holders holding in excess of two-thirds of the aggregate of all Shares and Units
held by Holders.
14. Notices.
-------
Except as set forth below, all notices and other communications provided
for or permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telex or telecopier, registered or
certified mail (return receipt requested), postage
10 of 18
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 3(g) or
Section 7, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Boston Properties, Inc.
000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Senior Vice President
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, P.C.
Telecopy: (000) 000-0000
and with a copy to: Xxxx Xxxxxxx Xxxxx & Xxxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Holders: As listed on the applicable Holder Signature Page
with a copy to: Xxxxx Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 8 and 9 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. Successors and Assigns.
----------------------
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and their respective successors and assigns, including without limitation
subsequent Holders. If any successor, assignee or transferee of any Holder
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 Registrable Securities such
Person shall be conclusively deemed to have agreed to be bound by all of the
terms and provision hereof. Each Holder agrees that (i) it shall only Dispose
of Units to persons who are "accredited investors" within the meaning of
Regulation D of the Securities Act and (ii) it shall promptly notify the Company
of any such Disposition. Each transferee, successor or assignee shall sign a
counterpart signature page to this Agreement.
11 of 18
16. 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.
17. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts made and to be performed
wholly within said State.
18. Severability.
------------
In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
19. Entire Agreement.
----------------
This Agreement is intended by the parties as a final expression of their
agreement and intended to be the complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
such subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BOSTON PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
[ADDITIONAL EXECUTION PAGES FOLLOW]
12 of 18
[Additional Execution Page for
Registration Rights and Lock-Up Agreement
Dated May 28, 1998]
/s/ Xxx X. Xxxxxxxxxx
Xxx X. Xxxxxxxxxx
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
13 of 18
[Additional Execution Page for
Registration Rights and Lock-Up Agreement
Dated May 28, 1998]
/s/ Xxxx Xxxx Xxxxxxxxxx
Xxxx Xxxx Xxxxxxxxxx
000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
14 of 18
[Additional Execution Page for
Registration Rights and Lock-Up Agreement
Dated May 28, 1998]
/s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
15 of 18
[Additional Execution Page for
Registration Rights and Lock-Up Agreement
Dated May 28, 1998]
LISHIL ENTERPRISES LIMITED PARTNERSHIP,
a District of Columbia limited partnership
By: ASR - 77 SECURITIES, INC.,
a District of Columbia corporation,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Print Name: Xxxxxxx X. Xxxxxx
Title: Secretary
Address: 0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
16 of 18
[Additional Execution Page for
Registration Rights and Lock-Up Agreement
Dated May 28, 1998]
XXXXXX ENTERPRISES LIMITED PARTNERSHIP, a
Maryland limited partnership
By: /s/ Xxxxxxx X. Xxxxxxxxx
Print Name: Xxxxxxx X. Xxxxxxxxx
Title: General Partner
Address: 0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
00 of 18
[Additional Execution Page for
Registration Rights and Lock-Up Agreement
Dated May 28, 1998]
TOWER CAPITAL, LLC, a Maryland limited
liability company
By: /s/ Xxxx X. Xxxxxxxx
Print Name: Xxxx X. Xxxxxxxx
Title: Manager
Address: 00000 Xxxx Xxxxx
Xxxxx Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
18 of 18
