Exhibit 99.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
BY AND BETWEEN
BOSTON PROPERTIES, INC.
AND
THE HOLDERS NAMED HEREIN
Date: December 11, 2000
TABLE OF CONTENTS
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Page
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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. 7
7. Covenants of Holders. 8
8. Suspension of Registration Requirement: Restriction on Sales. 9
9. Rule 144. 11
10. Additional Shares. 11
11. Contribution. 11
12. No Other Obligation to Register. 12
13. Amendments and Waivers. 12
14. Notices. 12
15. Successors and Assigns. 13
16. Counterparts. 14
17. Governing Law. 14
18. Severability. 14
19. Entire Agreement. 14
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
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This Registration Rights and Lock-Up Agreement (this "Agreement") is
entered into as of December 11, 2000 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 Series Z
Preferred Units of limited partner interest ("Series Z Preferred Units") in
Boston Properties Limited Partnership (the "Operating Partnership"), which
Series Z Preferred Units may be converted into or redeemed in exchange for, at a
later date and subject to certain conditions set forth in the Limited
Partnership Agreement of the Operating Partnership (the "OP Agreement"), for
common units of limited partner interest ("Common Units") in the Operating
Partnership, which Common Units may be exchanged, at a later date and subject to
certain conditions set forth in the OP Agreement, for shares of common stock of
the Company, $.01 par value ("Common Shares"), in all cases 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
February 11, 2000 (the "Contribution Agreement"), between the Operating
Partnership, the Holders and certain other parties; and
WHEREAS, it is a condition precedent to the obligations of the Holders
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.
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"Person" shall mean an individual, partnership, corporation, trust, or
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unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
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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
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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
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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
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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
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Company which covers or may cover 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
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provision).
"SEC" shall mean the Securities and Exchange Commission.
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"Shares" (a) when used with respect to a Holder, shall mean any Common
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Shares issuable to the Holder upon redemption or in exchange for Common Units
held by such Holder,
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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, from the date hereof until the later of (A) the second anniversary
of the signing of the Contribution Agreement or (B) the first anniversary of the
signing of this Agreement (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
Series Z Preferred Units (the "Lock-up").
(b) Despite the Lock-up set forth in Section 2(a), (A) a Holder may
Dispose of Series Z Preferred Units pursuant to a pledge, grant of security
interest or other encumbrance effected in a bona fide transaction with an
unrelated and unaffiliated pledgee, provided that such a pledgee agrees not to
foreclose upon such Series Z Preferred Units until the date of the expiration
of the Lock-up Period; and (B) after the first anniversary of the signing of
this Agreement, then a Holder may Dispose of Units as follows:
(i) a Holder that is an entity may Dispose of Units to one
or more persons or entities 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 or entities who have an ownership interest in such
Holder;
(ii) a Holder that 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;
(iii) a Holder that is a natural person 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; and
(iv) a Holder may Dispose of Units as a gift or other
transfer without consideration;
provided, however, that in the case of any transfer of Units pursuant to this
Section 2(b), the transferee shall, at the request of the Company, provide an
executed Investor Questionnaire and Subscription Agreement in the form attached
to the Contribution Agreement as Exhibit D.
In the event a Holder Disposes of Series Z Preferred Units described in
this Section 2(b),
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such Series Z Preferred Units shall remain subject to this Agreement and, as a
condition of the validity of such disposition, each 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 Series Z Preferred 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. Unless the
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Company has previously filed the Issuance Registration Statement (as defined in
Section 3(b) below), subject to the conditions set forth in this Agreement, on a
date that is no earlier than two weeks before the date of the expiration of the
Lock-up Period (the "Lock-up Expiration Date") and no later than the Lock-up
Expiration Date, the Company shall file a Registration Statement (the "Resale
Registration Statement") under Rule 415 under the Securities Act relating to the
offer and sale by the Holders of all of the Registrable Shares of the Holders in
accordance with the terms hereof, and shall use all commercially reasonable
efforts to cause such Registration Statement to be declared effective by the SEC
by that date which is 75 days after the Lock-up Expiration Date. The Company
agrees to use all commercially 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"). The Company
shall not be deemed to have used all commercially reasonable efforts to keep the
Resale Shelf Registration Statement effective during the period from the date of
the declaration of its effectiveness through the Resale Shelf Registration
Expiration Date if the Company takes any action, or fails to take any action,
that would result in the Resale Registration Statement not being available to
the Holders with respect to their offer and sale of any of their Registrable
Shares during such period, unless (i) such an action is required by applicable
law (provided that, in no event shall the Company be relieved of its obligations
under Section 3(e) below) or (ii) such action is made in compliance with the
provisions of Section 8.
(b) Registration Statement Covering Issuance of Common Stock. In
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lieu of the registration rights set forth in Section 3(a) above, the Company
may, in its sole discretion, on a date that is no earlier than two weeks before
the Lock-up Expiration Date and no later than two weeks after the Lock-up
Expiration Date, file a Registration Statement (the "Issuance Registration
Statement") under Rule 415 under the Securities Act relating to the issuance to
Holders of Shares upon the redemption of Common Units or in exchange for Common
Units. In the event that the Company is unable to cause such Issuance
Registration Statement to be declared effective by the SEC by the Lock-up
Expiration Date, then in addition to such other rights of law or equity as each
Holder may have, the rights of such Holder set forth in Section
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3(a) shall be restored. Thereupon, the Company shall use all commercially
reasonable efforts to cause such Issuance Registration Statement to be declared
effective by the SEC for all Shares covered thereby. The Company agrees to use
all commercially reasonable efforts to keep the Issuance Registration Statement
continuously effective, with respect to the Shares of a particular Holder, until
the date on which such Holder has redeemed or exchanged such Holder's Common
Units for Shares (hereinafter referred to as the "Issuance Registration
Expiration Date"). In the event that (except as otherwise permitted by Section
8) the Company is unable to keep such Issuance Registration Statement effective
until the date on which all Holders have redeemed or exchanged such Holder's
Common Units for Shares (the "Issuance Registration Expiration Date"), then in
addition to such other rights at law or equity as each Holder may have, the
rights of each Holder set forth in Section 3(a) above shall be restored. The
Company shall not be deemed to have used all commercially reasonable efforts to
keep the Issuance Registration Statement effective during the period from the
date of the declaration of its effectiveness through the Issuance Registration
Expiration Date if the Company takes any action, or fails to take any action,
that would result in all Holders not receiving Shares registered under the
Issuance Registration Statement upon redemption or exchange of their Common
Units during such period, unless (i) such an action is required by applicable
law (provided that, in no event shall the Company be relieved of its obligations
under Section 3(e) below) or (ii) such action is made in compliance with the
provisions of Section 8.
(c) Demand Registration. Subject to the conditions set forth in this
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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 not eligible 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 (but, in any event,
within thirty (30) days after such request) a Registration Statement (the
"Demand 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 all commercially
reasonable efforts to cause such Demand 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 Demand Registration Statement before receipt
of notice from any Holder. The Company agrees to use all commercially 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 (the "Demand Registration Expiration Date"). The Company
shall not be deemed to have used all commercially reasonable efforts to keep the
Demand Registration Statement effective during the period from the date of the
declaration of its effectiveness through the Demand Registration Expiration Date
if the Company takes any action, or fails to take any action, that would result
in the Demand Registration Statement not being available to the Holders with
respect to their offer and sale of any of their Registrable Shares during such
period unless (i) such an action is required by applicable law (provided that,
in no event shall the Company be relieved of its obligations under Section 3(e)
below) or (ii) such
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action is made in compliance with the provisions of Section 8.
(d) Notification and Distribution of Materials. The Company shall notify
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each Holder of the effectiveness of any Registration Statement (or any
post-effective amendment thereto) 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 Shares in the manner described in
the Registration Statement.
(e) Amendments and Supplements. The Company shall prepare and file with
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the SEC from time to time such amendments and supplements to any Registration
Statement and Prospectus used in connection therewith as may be necessary to
keep the Registration Statement effective and shall take all other action to
assure that the Registration Statement (and all reports and other documents
incorporated by reference therein) comply with the provisions of the Securities
Act and the Securities Exchange Act of 1934 (the "Exchange Act") with respect to
the disposition of all the Shares until the earlier of (a) such time as all of
the 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 required to be effective in accordance with the terms of this
Section 3. Promptly, but in any event upon twenty (20) 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 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 prior to the
effectiveness of the Resale Shelf Registration Statement or the Issuance
Registration Statement, as applicable.
(f) Notice of Certain Events. The Company shall promptly notify each
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Holder of, and confirm in writing, (i) the filing of any 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; (ii) the issuance by the SEC of any stop order
suspending the effectiveness of any Shelf Registration Statement or the
initiation of any proceedings for such purpose; or (iii) the receipt by the
Company of any notification with respect to the suspension of the qualification
of the securities included in any Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose.
At any time when a Prospectus relating to any Registration Statement is
required to be
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delivered under the Securities Act by a Holder to a transferee, the Company
shall immediately notify each Holder of the happening of any event or the
existence of any state of facts as a result of which the Registration Statement
or 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 case of the Prospectus, 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 such 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 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.
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 all commercially reasonable
efforts to cause such filings to become effective and shall take any and all
other actions necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Shares; 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 all commercially reasonable 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 or underwriter 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 required to be kept 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.
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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 or Exchange Act applicable to
the Company and relating to action or inaction required of the Company in
connection with any Registration Statement or Prospectus (or any report or other
document incorporated therein by reference), or upon any untrue or alleged
untrue statement of material fact contained in the Registration Statement or any
Prospectus (or any report or other document incorporated therein by reference),
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 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 by the Holders in writing expressly for use in
connection with the Registration Statement or the Prospectus contained therein
by such Indemnitee.
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
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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 expressly
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 (and shall be subject to the limits set forth in Section 11 hereof).
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 all
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of such a Registration Statement at the earliest possible
moment
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to file or 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, for one or more periods not to exceed in the aggregate the period
described in Subsection 8(e) below, in the event of pending negotiations
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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
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fide business purpose for preserving confidentiality or which renders the
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Company unable to comply with SEC requirements (such circumstances being
hereinafter referred to as a "Suspension Event," and any time period during
which there is such a Suspension Event being referred to as a "Suspension
Period"), in each case if any of the foregoing would make it impractical or
inadvisable to cause the Registration Statement or such filings to be filed or
to become effective or to amend or supplement the Registration Statement,
provided that such suspension shall continue only for so long as the applicable
Suspension Event is continuing. The Company shall notify the Holders of the
existence of any Suspension Event by promptly delivering to each Holder a
certificate signed by an executive officer of the Company stating that a
Suspension Event has occurred and is continuing.
(c) Subject to the terms of Subsection 8(e) below, each Holder of
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Registrable Shares
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agrees, if requested by the Company in the case of a Company-initiated
non-underwritten offering registered under the Securities Act or if requested by
the managing underwriter or underwriters in a Company-initiated underwritten
offering due to the underwriters' concerns that sales of Registrable Shares
would adversely affect the pricing or practicality of such underwritten offering
(each, a "Company Offering"), not to effect any public sale or distribution of
any of the Shares owned by such Holder during the period (the "Offering Blackout
Period") beginning upon receipt by such Holder of written notice from the
Company, but in any event no earlier than the fifteenth (15th) day preceding the
date of pricing of such Company Offering, and ending on the earlier to occur of:
(i) sixty (60) days after the closing date of such Company Offering;
(ii) three (3) business days after the date on which the closing
price of the class of equity securities sold by the Company in
such Company Offering shall have averaged for a period of twenty
(20) consecutive trading days at least one-hundred-fifteen
percent (115%) of the gross price to the public of such security
in such Company Offering;
(iii) the date on which, under the terms of an underwriters' lock-up
or similar agreement, the Company may begin to effect any public
sale or distribution of any of its securities following any such
underwritten Company Offering; or
(iv) the date the Company or managing underwriter or underwriters
withdraws such request in writing.
(d) Subject to the terms of Subsection 8(e) below, each Holder agrees
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that, following the effectiveness of any Registration Statement relating to
Registrable Shares of such Holder, such Holder will not effect any sales of the
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. During such period, the Company will not be obligated
to effect redemptions of Common Units under an Issuance Registration Statement.
The Holder may recommence effecting sales of the Shares pursuant to the
Registration Statement or such filings, and all other obligations which are
suspended as a result of a Suspension Event shall no longer be so suspended,
following further notice to such effect from the Company, which notice shall be
given by the Company not later than one (1) business day after the conclusion of
any such Suspension Event.
(e) Notwithstanding anything herein to the contrary, the Company
covenants and agrees that (i) the Company's rights to suspend its obligation
under this Agreement to file and
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maintain the effectiveness of any Registration Statement during the pendency of
any Suspension Event, (ii) the Holders' obligation to suspend public sales of
Shares during one or more Offering Blackout Periods and (iii) the Holders'
obligations to suspend sales of Shares pursuant to a Registration Statement
during the pendency of any Suspension Event, shall not cause the Holders to be
required to suspend sales of Shares or relieve the Company of its obligation to
file and maintain the effectiveness of a Registration Statement (A) for longer
than one hundred twenty (120) days in the aggregate during any period of twelve
(12) consecutive months or (B) unless the Company exercises its rights to
require the suspension of sales of Common Shares with respect to other holders
of Common Units or Common Shares who are parties to registration rights
agreements similar to this Agreement to the extent permitted by such agreements
and also instructs its two most senior executive officers that they must suspend
sales of Common Shares for the same period of time.
9. Rule 144.
The Company shall file any reports required to be filed by it under the
Exchange Act and the rules and regulations adopted by the SEC thereunder; and it
shall take such further action as each Holder of Registrable Shares may
reasonably request (including providing any information necessary to comply with
Rules 144 and 144A under the Securities Act), all to the extent required from
time to time to enable such Designated Holder to sell Registrable Shares without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 or Rule 144A under the Act, as such rules may be
amended from time to time, or (b) any similar rules or regulations hereafter
adopted by the SEC. The Company shall, upon the request of any Holder of
Registrable Shares, deliver to such Holder a written statement as to whether it
has complied with such requirements.
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.
11. Contribution.
(a) 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
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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.
(b) The Company and the Holders agree that it would not 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.
(c) Notwithstanding the provisions of Section 7 or this Section 11, no
Holder shall be required to pay by way of indemnification, contribution or
otherwise 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, Common
Units and Series Z Preferred 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
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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(f) 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.
Four Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to: Boston Properties, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
and with a copy to: Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Holders, to the addresses for notices set forth in the
Contribution Agreement.
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. This Agreement may not be
assigned by any Holder and any attempted assignment hereof by any Holder will be
void and of no effect and shall terminate all obligations of the Company
hereunder; provided, that any Holder may assign its rights hereunder to any
person to whom such Holder may Dispose of Series Z Preferred Units pursuant to
Section 2(b) hereof, including any pledgee, or to any person to whom a Holder
disposes of Shares in a manner that would be a permitted disposition of Series Z
Preferred Units under Section 2 (b).
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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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BOSTON PROPERTIES, INC.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Senior Vice President and Regional
Manager
HOLDERS
VINE STREET PROPERTIES I
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: General Partner
VINE STREET PROPERTIES II
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: General Partner
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