EXHIBIT 2.2
PREFERRED STOCK PURCHASE AGREEMENT dated as of November 22, 1996
between CORNERSTONE PROPERTIES INC., a Nevada corporation (the "Company"), the
NEW YORK STATE TEACHERS' RETIREMENT SYSTEM (the "Purchaser").-
WHEREAS, the Company wishes to issue and sell to the Purchaser an
aggregate of 689,655 shares (the "Preferred Shares") of the 1,034,483 authorized
but unissued shares of 8% Cumulative Convertible Preferred Stock, without par
value, of the Company (the "8% Preferred Stock"); and
WHEREAS, the Purchaser, wishes to purchase the Preferred Shares on
the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
ARTICLE I. DEFINITIONS
Section 1.01. DefinitionsDefinitions. As used in this Agreement, the
following terms shall have the following meanings:
"Aggregate Purchase Price" means the amount set forth opposite the
Purchaser's name on Schedule 2.01 hereto under the caption "Aggregate
Purchase Price."
"Basic Agreements" means this Agreement and the Stockholders'
Agreement.
"Business Day" means any day other than a Saturday, Sunday or any
other day on which commercial banks are required by law or authorized to
close in New York City.
"By-laws" means the By-laws of the Company, as amended from time
to time.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however
designated) of such Person's capital stock and all joint venture interests
(however designated) whether now outstanding or issued after the Closing
Date, including, without limitation, all common stock and all preferred
stock.
"Charter" means the Certificate of Incorporation of the Company, as
amended or restated from time to time.
"Closing" has the meaning specified in Section 2.02.
"Closing Date" has the meaning specified in Section 2.02.
"Commission" means the United States Securities and Exchange
Commission.
"Commission Filings" has the meaning specified in Section 4.01(1).
"Common Stock" means the common stock of the Company, without par
value.
"Conversion Shares" means the Common Stock or other securities
issued upon conversion of the 8% Preferred Stock.
"8% Preferred Stock Series A" means the 8% Cumulative Convertible
Preferred Stock Series A of the Company, without par value.
"Fair Market Value" means the fair market value of the item in
question as determined by a majority of the Board of Directors of the
Company acting in good faith and in exercise of its fiduciary duties and
evidenced by a resolution of the Board of Directors.
"Lien" means, with respect to any Property, any pledge, mortgage,
lien, charge, security interest or encumbrance of any kind in respect of
such Property, except that Lien shall not mean any license or right to use
intellectual property of the Company granted by the Company or any rights
of banks to set off deposits against debts to said banks.
"Material Adverse Effect" means a material adverse effect on the
business, operations, properties or condition (financial or otherwise) of
the Company and its Subsidiaries, taken as a whole.
"1933 Act" means the United States Securities Act of 1933, as
amended, and the rules and, unless the context indicates otherwise,
regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
"1934 Act" means the United States Securities Exchange Act of 1934,
as amended, and, unless the context indicates otherwise, the rules and
regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
"Public Offering" means an underwritten public offering of equity
securities of the Company pursuant to an effective registration statement
under the 1933 Act.
"Purchaser" means the New York State Teachers' Retirement System.
"Qualified Public Offering" means a Public Offering of Common Stock
to be listed on the New York Stock Exchange in which (i) the aggregate net
proceeds to the Company (after payment of all fees and expenses of the
offering and pay-down of any then remaining debt under the Term Loan
Agreement, dated as of August 8, 1995, between the Company and Deutsche
Bank AG (London)) together with the net proceeds of any prior public
offerings of Common Stock listed on the New York Stock Exchange equal or
exceed US$200 million, (ii) the expected distributions on shares of Common
Stock of the Company for the 12 months following the Qualified Public
Offering (as certified by the treasurer or chief financial officer of the
Company) divided by the public offering price is less than or equal to
7.75% and (iii) (A) if the Qualified Public Offering is completed in the
calendar year 1997 the public offering price is at least $16.00 per share,
(B) if the Qualified Public Offering is completed in the calendar year
1998 the public offering price is at least $16.50 per share and (C) if the
Qualified Public Offering is completed in the calendar year 1999, the
public offering price is at least $17.00 per share; provided, however,
that a Qualified Public Offering shall be deemed to occur on the first
business day after any day the condition set forth in item (i) above and
each of the following conditions is true: (x) the day is after a Public
Offering and prior to January 1, 2000, (y) the average of the closing
prices for shares of Common Stock as reported on the New York Stock
Exchange composite tape for the 20 consecutive trading days immediately
preceding such day (the "Composite Average") equals or exceeds the
applicable minimum price for a public offering to be considered a
Qualified Public Offering at such time and (z) the expected distributions
on shares of Common Stock of the Company for the 12 months following such
day (as certified by the treasurer or chief financial officer of the
Company) divided by the Composite Average is less than or equal to 7.75%.
"Real Property Leases" has the meaning specified in Section
4.01(p).
"7% Preferred Stock" means the 7% Cumulative Convertible Preferred
Stock of the Company, without par value.
"Stockholders' Agreement" means the Stockholders' Agreement dated as
of November 22, 1996, among the Company, the Purchaser and such other
purchasers of 8% Preferred Stock as may become party thereto from time to
time, set forth as Exhibit A hereto.
"Subsidiary" means any company, corporation or joint venture of
which at the time of determination the Company, directly and/or indirectly
through one or more Subsidiaries, owns, or one or more other Subsidiaries
own, more than 50% of the Voting Stock or the Company controls, or one or
more other Subsidiaries control, the composition of more than 50% of the
board of directors or comparable governing body thereof.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock of such Person entitling the holders
thereof (whether at all times or only so long as no senior class of stock
has voting power by reason of any contingency) to vote in the election of
members of the board of directors or other governing body of such Person
but does not include Capital Stock having the right to vote in such
election solely upon the happening of a contingency unless and until such
contingency has occurred, and then only so long as such Capital Stock has
voting rights with respect thereto.
ARTICLE II. THE SALE AND PURCHASE OF PREFERRED SHARES
Section 2.01. Obligations to Sell and Purchase the Preferred
SharesObligations to Sell and Purchase the Preferred Shares. In reliance upon
the representations and warranties made herein and subject to the satisfaction
or waiver of the conditions set forth herein, the Company agrees to issue and
sell to the Purchaser, and the Purchaser agrees to purchase from the Company,
the number of Preferred Shares set forth opposite the name of the Purchaser
under the heading "Number of Preferred Shares to be Purchased" on Schedule 2.01,
at the aggregate purchase price set forth opposite the name of the Purchaser
under the heading "Aggregate Purchase Price" on Schedule 2.01.
Section 2.02. The Closing.The Closing. The closing shall take place
at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on November 22, 1996, or at such other location, date and time as may be
agreed upon between the Purchaser and the Company (such closing being called the
"Closing" and such date and time being called the "Closing Date"). At the
Closing, the Company shall issue and deliver to the Purchaser a stock
certificate or certificates in definitive form, registered in the name of the
Purchaser, representing the Preferred Shares being purchased by it at the
Closing. As payment in full for the Preferred Shares being purchased by it under
this Agreement, and against delivery of the stock certificate or certificates
therefor on the Closing Date, the Purchaser shall deliver to the Company a check
payable to the order of the Company in the amount set forth opposite the name of
the Purchaser under the heading "Aggregate Purchase Price" on Schedule 2.01, or
shall transfer such amount to the account of the Company by wire transfer.
Section 2.03. Further Action.Further Action. During the period from
the date hereof to the Closing Date, the Company and the Purchaser shall use its
best efforts and take all action necessary or appropriate to satisfy the closing
conditions contained in Section 3 hereof and to cause its respective
representations and warranties contained in Section 4 hereof to be complete and
correct as of the Closing Date, after giving effect to the transactions
contemplated by this Agreement.
ARTICLE III. CONDITIONS
Section 3.01. Conditions to the Obligations of the
PurchaserConditions to the Obligations of the Purchaser. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction or waiver of
the following conditions on or before the Closing Date:
(a) Stock Certificates. The Company shall have issued and
delivered to the Purchaser a stock certificate or certificates in
definitive form, registered in the name of the Purchaser, representing
the Preferred Shares being purchased by the Purchaser on the Closing
Date;
(b) Opinions of Company's Counsel. The Purchaser shall have received
from Shearman & Sterling, counsel for the Company, and from Lionel, Xxxxxx
& Xxxxxxx, Nevada counsel for the Company, opinions dated the Closing Date
in form and substance satisfactory to the Purchaser.
(c) Representations and Warranties Complete and Correct. The
representations and warranties of the Company contained in Section 4.01
hereof shall have been complete and correct in all material respects as of
the Closing Date.
(d) Compliance with this Agreement. The Company shall have performed
and complied in all material respects with all agreements, covenants and
conditions contained herein which are required to be performed or complied
with by it on or before the Closing Date.
(e) Officers' Certificate. The Purchaser shall have received a
certificate, dated the Closing Date and signed by the President or any
Vice President and attested by the Secretary of the Company, certifying
that the conditions set forth in Sections 3.01(c) and 3.01(d) are
satisfied on and as of such date.
(f) Consents; Permits. The Company shall have received all consents,
permits, approvals and other authorizations that may be required from, and
made all such filings and declarations that may be required with, any
person pursuant to any law, statute, regulation or rule (federal, state,
local and foreign), or pursuant to any agreement, order or decree by which
the Company or any of its assets is bound, in connection with the
transactions contemplated by this Agreement, except for (a) notice
requirements which may be fulfilled subsequent to the Closing Date and (b)
consents, permits, approvals, authorizations, filings and declarations the
failure to obtain or to undertake (i) could not have a Material Adverse
Effect on the Company or (ii) could not adversely affect the ability of
the Company to perform its obligations under the Basic Agreements or any
agreement executed in accordance therewith.
(g) Stockholders' Agreement. The Company shall have executed
and delivered the Stockholders' Agreement.
(h) [Reserved].
(i) Supporting Documents. The Purchaser and its counsel shall
have received copies of the following documents:
(i) (A) the Charter, certified as of a recent date by the
appropriate authority of the Company's jurisdiction of
incorporation, and (B) a certificate of such authority dated as of a
recent date as to the due incorporation and good standing of the
Company, the payment of all franchise and excise taxes by the
Company and listing all documents of the Company on file with said
authority;
(ii) a certificate of the Secretary or an Assistant Secretary of the
Company dated the Closing Date and certifying: (A) that attached
thereto is a true and complete copy of the Bylaws of the Company as
in effect on the date of such certification; (B) that attached
thereto is a true and complete copy of all resolutions adopted by
the Board of Directors or the stockholders of the Company
authorizing the execution, delivery and performance of the Basic
Agreements, the issuance, sale and delivery of the Preferred Shares
and the reservation, issuance and delivery of the Conversion Shares,
and that all such resolutions are in full force and effect and are
all the resolutions adopted in connection with the transactions
contemplated by the Basic Agreements; (C) that the Charter has not
been amended since the date of the last amendment or restatement
referred to in the certificate delivered pursuant to clause (i)(B)
above; (D) that the By-laws have not been amended since the date of
the last amendment referred to in the certificate delivered pursuant
to clause (ii)(A) above; and (E) the incumbency and specimen
signature of each officer of the Company executing any Basic
Agreement, the stock certificates representing the Preferred Shares
and any agreement, certificate or instrument furnished pursuant
hereto, and a certification by another officer of the Company as to
the incumbency and signature of the officer signing the certificate
referred to in this clause (ii)(E); and
(iii) such additional supporting documents and other information
with respect to the operations and affairs of the Company as the
Purchaser may reasonably request.
Section 3.02. Conditions to the Obligations of the CompanyConditions
to the Obligations of the Company. The Company's obligations under this
Agreement shall be subject to the satisfaction or waiver of the following
conditions on or before the Closing Date:
(a) Opinion of Purchaser's Counsel. The Company shall have received
from the Purchaser and from King & Spalding, special counsel to the
Purchaser, opinions dated the Closing Date in form and substance
satisfactory to the Company.
(b) Compliance with this Agreement. The Purchaser shall have
performed and complied in all material respects with all agreements,
covenants and conditions contained herein which are required to be
performed or complied with by it on or before the Closing Date.
(c) Purchaser's Representations and Warranties Complete and Correct.
The Purchaser's representations and warranties contained in Section 4.02
of this Agreement shall be complete and correct when made and shall be
complete and correct at and as of the Closing Date, after giving effect to
the transactions contemplated by this Agreement, as if made on and as of
such date.
(d) Officers' Certificate. The Company shall have received a
certificate, dated the Closing Date and signed by the President or any
Vice President and attested by the Secretary of the Purchaser, certifying
that the conditions set forth in Sections 3.02(b) and 3.02(c) are
satisfied on and as of such date.
(e) Additional Documents. The Company shall have received such
additional supporting documents and other information with respect to the
operations and affairs of the Purchaser as the Company may reasonably
request.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the
CompanyRepresentations and Warranties of the Company. The Company represents
and warrants to the Purchaser as follows:
(a) Organization, Good Standing and Qualification. Each of the
Company and its subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and each of the Company and its Subsidiaries has all
requisite corporate power and authority under such laws to own or lease
and operate its properties and to carry on its business as now conducted.
Each of the Company and its Subsidiaries is duly qualified or licensed to
do business as a foreign corporation in good standing in each jurisdiction
in which the nature of the business transacted by it or the character of
the properties owned or leased by it requires it to so qualify or be
licensed, except where the failure to so qualify or be licensed or be in
good standing would not have a Material Adverse Effect. The Company has
the corporate power and authority to execute, deliver and perform the
Basic Agreements, to issue, sell and deliver the Preferred Shares and,
upon conversion thereof, to issue and deliver the Conversion Shares.
(b) Authorization, Enforceability. All corporate action on the part
of the Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of the Basic Agreements, the
performance of all obligations of the Company thereunder and the
authorization, issuance, sale and delivery of the Preferred Shares and the
Conversion Shares has been taken or will be taken prior to the Closing.
The Basic Agreements have been duly authorized, executed and delivered by
the Company and constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
enforcement is sought by proceedings in equity or at law).
(c) No Conflict. The execution and delivery by the Company of the
Basic Agreements, the performance by the Company of its obligations
thereunder, the issuance, sale and delivery of the Preferred Shares and,
upon conversion thereof, the issuance and delivery of the Conversion
Shares, will not violate any provision of law, the Charter or By-laws of
the Company, or, any order of any court or other agency of government, or
conflict with, result in a breach of or constitute (with notice or lapse
of time or both) a default under any indenture, agreement or other
instrument by which the Company or any of its properties or assets is
bound, or result in the creation or imposition of any lien, charge,
restriction, claim or encumbrance of any nature whatsoever known to the
Company upon any of the properties or assets of the Company or trigger any
remedy provision in any agreement or cause an adjustment in the Company's
equity interest in any partnership or joint venture.
(d) Outstanding Options, Etc. As of the Closing Date, there are not
outstanding any options, warrants, rights (including conversion or
preemptive rights) or agreements, orally or in writing, for the purchase
or acquisition from the Company of any shares of its capital stock except
for (1) the conversion privileges of the 7% Preferred Stock, the 8%
Preferred Stock and the 8% Preferred Stock Series A and (2) options to
purchase up to 952,500 shares of Common Stock that have been issued to
directors and employees of the Company.
(e) Valid Issuance of Securities.
(i) The Preferred Shares, when issued, sold and delivered in
accordance with the terms hereof for the consideration expressed
herein, will be duly and validly issued, fully paid and
nonassessable. The Common Stock issuable upon conversion of 8%
Preferred Stock has been duly and validly reserved for issuance, and
upon issuance in accordance with the Charter, shall be duly and
validly issued, fully paid and non-assessable.
(ii) Neither the issuance, sale or delivery of the Preferred Shares
nor, upon the conversion thereof, the issuance or delivery of the
Conversion Shares is subject to any preemptive right of stockholders
of the Company arising under law or the Charter or By-laws of the
Company, to any contractual right of first refusal or other right in
favor of any person.
(f) Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against the Company that
questions the validity of the Basic Agreements or the right of the Company
to enter into them, or to consummate the transactions contemplated
thereby, or that might, either individually or in the aggregate, have a
Material Adverse Effect on the Company, or result in any change in the
current equity ownership of the Company, nor is the Company aware that
there is any basis for the foregoing. The Company is not a party or
subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality. There is no
action, suit, proceeding or investigation by the Company currently pending
or which the Company intends to initiate.
(g) Governmental Consents. Assuming the accuracy of the
representations and warranties of the Purchaser set forth in this
Agreement, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
governmental authority on the part of the Company is required in
connection with the consummation of the transactions contemplated by this
Agreement.
(h) Compliance with Law and Other Instruments. The Company is not in
conflict with, or in default or violation of, (i) any law, rule,
regulation, order, judgment or decree applicable to it or by which any of
its property or assets is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which it is a party or by
which the Company or any property or asset of the Company is bound or
affected, except for any such conflicts, defaults or violations that would
not, individually or in the aggregate, have a Material Adverse Effect.
(i) Disclosure. The Company has fully provided each Purchaser with
all the information which such Purchaser has requested for deciding
whether to acquire the Preferred Shares and all information which the
Company believes is reasonably necessary to enable such Purchaser to make
such decision, including the Company's Executive Summary and Property
Information Book, as amended or supplemented from time to time (the
"Executive Summary"). Neither the Executive Summary, this Agreement nor
any other statement or certificate made or delivered in connection
herewith contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements herein or therein
not misleading, except that, with respect to projections contained in the
Executive Summary, the Company represents only that such projections were
prepared in good faith and that the Company believes there is a reasonable
basis for such projections.
(j) Securities Reports. All forms, reports, statements and other
documents filed by the Company with the Commission were prepared in all
material respects in accordance with the requirements of applicable law
and did not at the time they were filed contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(k) Taxes. The Company elected to be taxable as a real estate
investment trust for federal income tax purposes beginning with 1982, its
first year of existence. The Company has filed all material income and
franchise tax returns required by applicable law to be filed by it, and
has timely paid all taxes shown due on such returns. There is no
agreement, waiver or consent providing for an extension of time with
respect to the assessment of any tax or tax deficiency against the
Company. There is no action, suit, proceeding, investigation, audit or
claim now pending against, or with respect to, the Company in respect of
any tax. The Company has not filed any agreement or consent under Section
341(f) of the Internal Revenue Code of 1986, as amended.
(l) No Material Adverse Change. Subsequent to December 31, 1995 and
prior to the Effective Time, except as set forth in or contemplated by the
Company's Form 10K for its fiscal year ended December 31, 1995, its Form
10Qs for the first three fiscal quarters of fiscal 1996, its proxy
statement for its June 20, 1996 meeting of stockholders (the "Commission
Filings") and this Agreement, (i) there has not been any material adverse
change or any development involving a prospective material adverse change,
in the business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries,
taken as a whole, arising for any reason whatsoever, (ii) neither the
Company nor any Subsidiary has incurred or will incur any material
liabilities or obligations, direct or contingent, nor has the Company or
any Subsidiary entered into nor will it enter into any material
transactions other than pursuant to this Agreement, the issuance of
$66,500,000 of 8% Cumulative Convertible Preferred Stock, Series A, the
acquisition of the Xxxxx Building in Pittsburgh, Pennsylvania and the
acquisition of One Lincoln Centre, Oakbrook Terrace, Illinois and (iii)
neither the Company nor any Subsidiary has or will have purchased any of
its outstanding capital stock.
(m) Title to Properties. To the Company's knowledge, the Company and
the Subsidiaries have good and marketable title to [the Xxxxx Building],
One Lincoln Centre, Oakbrook Terrace, Illinois and all properties and
assets described in the Commission Filings or the Executive Summary as
owned by them, free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages, defects or restrictions, except such as
are described in the Commission Filings or the Executive Summary or such
as do not have a Material Adverse Effect.
(n) Compliance with Laws. To the Company's knowledge, (a) the
operations of the Company and each Subsidiary with respect to any real
property currently leased or owned or by any means controlled by it are in
compliance in all material respects with all applicable federal, state,
and local laws, ordinances, rules, and regulations relating to
occupational health and safety and the environment, and the Company and
each Subsidiary has all licenses, permits and authorizations necessary to
operate under all such laws, ordinances, rules and regulations and are in
compliance with all terms and conditions of such licenses, permits and
authorizations except where the failure to comply would not have a
Material Adverse Effect; (b) neither the Company nor any Subsidiary has
authorized or conducted or has knowledge of the generation,
transportation, storage, use, treatment, disposal or release of any
hazardous substance, hazardous waste, hazardous material, hazardous
constituent, toxic substance, pollutant, contaminant, petroleum product,
natural gas, liquefied gas or synthetic gas defined or regulated under any
environmental law on, in or under any real property of the Company or any
Subsidiary in any amount which has a Material Adverse Effect; and (c)
there is no pending or, to the best knowledge of the Company, any
threatened claim, litigation or any administrative agency proceeding, nor
has the Company or any Subsidiary received any written or oral notice from
any governmental entity or third party, that (i) alleges a violation of
any laws, ordinances, rules and regulations by the Company or such
Subsidiary; (ii) alleges the Company or such Subsidiary is a liable party
under the Comprehensive Environmental Response Compensation, and Liability
Act, 42 U.S.C. ss. 9601 et seq, or any state superfund law; (iii) alleges
possible contamination of the environment by the Company or such
Subsidiary; or (iv) alleges possible contamination of real property of the
Company or any Subsidiary, which, in any such case, is likely to have a
Material Adverse Effect.
(o) Insurance. Each parcel of real property currently owned or
leased by the Company or any of its Subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged and the Company has no reason to believe that the Company or
any of its Subsidiaries will not be able to renew their existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue their businesses at
a cost that would not have a Material Adverse Effect.
(p) Real Property Leases. The leases set forth on Schedule 4.01(p)
hereto (the "Real Property Leases") are all of the leases with tenants who
leased from the Company or any of its Subsidiaries 50,000 square feet or
more in any one of the Xxxxx Building, Pittsburgh, Pennsylvania, One
Lincoln Centre, Oakbrook Terrace, Illinois, or any of the other office
buildings described in the Commission Filings as owned by the Company or
any of its Subsidiaries. Each of the Real Property Leases is valid and
enforceable in accordance with its terms with respect to the Company or
the Subsidiary of the Company party thereto, and, to the knowledge of the
Company, is valid and enforceable in accordance with its terms with
respect to each other party thereto. To the knowledge of the Company,
there is no existing breach, default or event of default or any event that
with notice or lapse of time or both would constitute a breach, default or
event of default by the Company or any Subsidiary of the Company under any
of the Real Property Leases. Neither the Company nor any of its
Subsidiaries has received notice of, or made a claim with respect to, any
breach or default by any other party to any of the Real Property Leases.
Neither the Company nor any Subsidiary of the Company has received notice,
or has actual knowledge, that any of the Real Property Leases which is
subject to renewal will not be renewed, or that a tenant a party to a Real
Property Lease will vacate the premises upon expiration of such lease,
except for the lease by Apache Corporation of 160,000 square feet in Xxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx.
Section 4.02. Representations and Warranties of the
Purchaser.Representations and Warranties of the Purchaser. The Purchaser
understands that the Preferred Shares are being offered and sold without
registration under the 1933 Act in reliance upon the exemption provided in
Section 4(2) of the 1933 Act. The Purchaser further understands that such
exemption depends in part upon, and such Preferred Shares are being sold in
reliance on, the representations and warranties set forth in this Section. The
Purchaser represents and warrants to the Company that:
(a) Authorization. The Purchaser has full power and authority to
enter into this Agreement. This Agreement constitutes its valid and
legally binding obligation, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity (whether enforcement is sought by proceedings in equity or at law).
(b) Purchase Entirely for Own Account. The Preferred Shares will be
acquired for investment for the Purchaser's own account, not as a nominee
or agent, and not with a view to the resale or distribution of any part
thereof, and the Purchaser has no present intention of selling, granting
any participation in, or otherwise distributing the same. The Purchaser
further represents that it does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or
grant participations to such person or to any third person, with respect
to any of the Preferred Shares.
(c) Investment Experience. The Purchaser is an experienced investor
and acknowledges that it can bear the economic risk of its investment and
has such knowledge and experience in financial or business matters that it
is capable of evaluating the merits and risks of the investment in the
Preferred Shares.
(d) Restricted Securities. The Purchaser understands that the
Preferred Shares, and the shares of Common Stock issuable upon conversion
thereof, are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such shares may be resold without registration
under the 1933 Act only in certain limited circumstances. In this
connection, the Purchaser represents that it is familiar with SEC Rules
144 and 144A, as presently in effect, and understands the resale
limitations imposed thereby and otherwise by the 1933 Act.
(e) Access to Information. The Purchaser has had access to the
management and records of the Company and has had an opportunity to ask
questions of management of the Company regarding its business and affairs.
ARTICLE V. MISCELLANEOUS
Section 5.01. ExpensesExpenses. The Company agrees to pay on demand
all reasonable out-of-pocket costs and expenses of the Purchaser in connection
with the execution and delivery of the Basic Documents and the other documents
to be delivered under the Basic Documents.
Section 5.02. AssignmentAssignment. This Agreement may not be
assigned by operation of law or otherwise without the express written consent of
the Company (which consent may be granted or withheld in the sole discretion of
the Company) and provided, that any such permitted assignee shall execute the
Basic Agreements and become party thereto.
Section 5.03. Benefit; Successors and AssignsBenefit; Successors and
Assigns. Except as otherwise provided herein, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided, however, that this Agreement shall
not inure to the benefit of any successor or assignee unless such assignee shall
have complied with the terms of Section 5.02. Nothing in this Agreement either
express or implied is intended to confer on any person other than the parties
hereto and their respective successors and permitted assigns, any rights,
remedies or obligations under or by reason of this Agreement.
Section 5.04. NoticesNotices. All notices, requests, consents and
other communications hereunder shall be in writing and shall be delivered in
person or mailed by certified or registered mail, return receipt requested, or
telecopied in the case of non-U.S. residents, addressed as follows:
(a) if to the Company:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. X. Xxxxx, Xx.
(b) if to the Purchaser, to the address set forth below the
signature block for the Purchaser;
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or on the date
actually received, if sent by mail, telecopier or telex, with receipt
acknowledged.
Section 5.05. Governing LawGoverning Law. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York.
Section 5.06. Entire AgreementEntire Agreement. This Agreement,
including the Schedules and Exhibits hereto, constitutes the sole and entire
agreement of the parties with respect to the subject matter hereof. All
Schedules and Exhibits hereto are hereby incorporated herein by reference.
Section 5.07. CounterpartsCounterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Section 5.08. AmendmentsAmendments. This Agreement may not be
amended or modified, and no provisions hereof may be waived, without the written
consent of the Company and the holders of at least a majority of the outstanding
shares of 8% Preferred Stock.
Section 5.09. SeverabilitySeverability. If any provision of this
Agreement shall be declared void or unenforceable by any judicial or
administrative authority, the validity of any other provision and of the entire
Agreement shall not be affected thereby.
Section 5.10. Titles and SubtitlesTitles and Subtitles. The titles
and subtitles used in this Agreement are for convenience only and are not to be
considered in construing or interpreting any term or provision of this
Agreement.
Section 5.11. Further AssurancesFurther Assurances. From and after
the date of this Agreement, upon the request of any Purchaser or the Company,
the Company and the Purchaser shall execute and deliver such instruments,
documents and other writings as may be reasonably necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of this
Agreement and the Preferred Shares.
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Agreement as of the day and year first above written.
CORNERSTONE PROPERTIES INC.
By:
Name:
Title:
NEW YORK STATE TEACHERS' RETIREMENT
SYSTEM
By:
Name:
Title:
Schedule 2.01
To
Preferred Stock Purchase Agreement
dated as of November 22, 1996 between Cornerstone Properties Inc.,
and the New York State Teachers' Retirement System.
Number of Preferred
Purchaser Shares To Be Purchased Aggregate Purchase Price
New York State Teachers'
Retirement System 689,655 $100,000,000
Schedule 4.01(p)
To
Preferred Stock Purchase Agreement
dated as of November 22, 1996 between Cornerstone Properties Inc.,
and the New York State Teachers' Retirement System.
Cornerstone Properties
Leases Greater Than 50,000 Square Feet
============================---------------------------------------============
Building Tenant Name Sq. Ft. Expiration
============================---------------------------------------============
Norwest Center Norwest Corporation 451,079 2018
Faegre & Xxxxxx 195,918 1998
KPMG Peat Marwick 75,152 2009
Merchant, Gould, et al. 55,895 2000
============================---------------------------------------============
One Norwest Center Norwest Bank Denver N.A. 582,766 2013
Newmont Gold Company 166,659 1999
Apache Corporation 160,455 1997
============================---------------------------------------============
Washington Mutual Tower Xxxxxxx Coie 182,152 2004
Washington Mutual Savings 151,519 2007
Bank 50,574 2004
Xxxx Xxxxxx Xxxxxxxx
============================---------------------------------------============
000 Xxxxxx Xxxxxx Xxxxxxxx & Touche 120,624 1999
Bank of Tokyo Financial 94,211 2002
Corp. 85,169 2000
Xxxxx & Xxxxxxxx
============================---------------------------------------============
One Lincoln Centre Superior Bank 56,645 2002
===============================================================================
===============================================================================
EXHIBIT A
[Stockholders' Agreement]
PREFERRED STOCK
PURCHASE AGREEMENT
between
CORNERSTONE PROPERTIES INC.
and
NEW YORK STATE TEACHERS' RETIREMENT SYSTEM
Dated as of November 22, 1996
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.................................................... 1
Section 1.01. Definitions........................................... 1
ARTICLE II. THE SALE AND PURCHASE OF PREFERRED SHARES..................... 4
Section 2.01. Obligations to Sell and Purchase the Preferred
Shares......................................................... 4
Section 2.02. The Closing........................................... 4
Section 2.03. Further Action........................................ 4
ARTICLE III. CONDITIONS................................................... 4
Section 3.01. Conditions to the Obligations of the Purchaser........ 5
Section 3.02. Conditions to the Obligations of the Company.......... 6
ARTICLE IV. REPRESENTATIONS AND WARRANTIES................................ 7
Section 4.01. Representations and Warranties of the Company......... 7
Section 4.02. Representations and Warranties of the Purchaser....... 12
ARTICLE V. MISCELLANEOUS.................................................. 13
Section 5.01. Expenses.............................................. 13
Section 5.02. Assignment............................................ 13
Section 5.03. Benefit; Successors and Assigns....................... 13
Section 5.04. Notices............................................... 13
Section 5.05. Governing Law......................................... 14
Section 5.06. Entire Agreement...................................... 14
Section 5.07. Counterparts.......................................... 14
Section 5.08. Amendments............................................ 14
Section 5.09. Severability.......................................... 14
Section 5.10. Titles and Subtitles.................................. 15
Section 5.11. Further Assurances.................................... 15
Schedule 2.01 Purchaser Schedule
Schedule 4.01(p) Schedule of Real Property Leases
EXHIBIT A Stockholders' Agreement, dated as of November 22, 1996, between
the Company and the Purchaser
