Exhibit 99.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
BY AND AMONG
BOSTON PROPERTIES, INC., BOSTON PROPERTIES LIMITED PARTNERSHIP
AND THE
HOLDERS NAMED HEREIN
November 12, 1998
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-Up Agreement (this "Agreement") is
entered into as of November 12, 1998 by and among Boston Properties, Inc., a
Delaware corporation (the "Company"), Boston Properties Limited Partnership, a
Delaware limited partnership (the "Partnership" and, with the "Company,"
collectively, the "Acquiror"), and the Persons whose names are set forth on
Schedule A hereto (each a "Holder" and, collectively, the "Holders").
WHEREAS, certain of the Holders are parties to a Contribution Agreement
(the "ECIP Contribution Agreement"), dated November 12, 1998, by and among the
Partnership, Embarcadero Center Investors Partnership, a California limited
partnership ("ECIP"), and such Holders relating to the contribution of interests
in ECIP to the Partnership in exchange for preferred units of limited
partnership in the Partnership denominated as "Series Two Preferred Units";
WHEREAS, certain of the Holders are parties to a Contribution Agreement
(the "Three ECW Contribution Agreement"), dated November 12, 1998, by and among
the Partnership, Three Embarcadero Center West, a California limited partnership
("Three ECW"), and such other Holders relating to the contribution of interests
in Three ECW (other than those interests owned by The Prudential Insurance
Company of America ("Prudential") to the Partnership in exchange for Series Two
Preferred Units issued to such Holders (except that One Embarcadero Center
Venture, Three Embarcadero Center Venture and Four Embarcadero Center Venture
received Series Three Preferred Units (as defined below));
WHEREAS, Three ECW (a Holder under this Agreement) is a party to a
Contribution Agreement (the "Three ECW Property Contribution Agreement" and,
together with the ECIP Contribution Agreement and the Three ECW Contribution
Agreement, the "Contribution Agreements"), dated November 12, 1998, by and among
the Company, the Partnership, BP/ECW LLC, Three ECW, Prudential and certain
Prudential affiliates, relating to the contribution by Three ECW of its entire
undivided interest in the property known as Embarcadero Center West to the
Partnership in exchange for preferred units of limited partnership in the
Partnership denominated as "Series Three Preferred Units." The Series Two
Preferred Units and the Series Three Preferred Units are collectively known as
the "Preferred Units.";
WHEREAS, the Preferred Units are being issued to the Holders in a
private placement transaction and accordingly constitute restricted securities;
WHEREAS, upon the presentation of Common Units of limited partnership
in the Partnership ("Common Units") (which may be acquired upon conversion of
Preferred Units) for redemption in accordance with the terms hereof and the
terms of the Second Amended and Restated Agreement of Limited Partnership of the
Partnership (as amended, the "Limited Partnership Agreement"), the Common Units
may be acquired by the Company for shares of the Company's common stock, par
value $.01 per share ("Common Shares"), and the Company has agreed to provide
certain registration rights to the Holders in respect of such Common Shares
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and the Holders have agreed to certain restrictions on the transferability and
redemption of the Units and such Common Shares;
WHEREAS, the Preferred Units generally may not be converted into Common
Units (and thus, from Common Units into Common Shares) until December 31, 2002
(the "Conversion Date"); and
WHEREAS, it is a condition precedent under the Contribution Agreements
that each of the Company, the Partnership and the Holders enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuabl__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, the following capitalized terms shall have
the following meanings (such definitions to be equally applicable to both the
singular and plural forms of the terms defined):
"Acquiror" shall have the meaning set forth in the recitals hereto.
"Affiliate Holder" shall have the meaning set forth in Section 3A(a)
hereof.
"Agreement" shall have the meaning set forth in the recitals hereto.
"Common Shares" shall have the meaning set forth in the recitals
hereto.
"Company" shall have the meaning set forth in the recitals hereto.
"Contribution Agreements" shall have the meaning set forth in the
recitals hereto.
"Conversion Date" shall have the meaning set forth in the recitals
hereto.
"Dispose" and "Disposition" means any direct offer, pledge (unless the
pledgee cannot foreclose on pledged Units until after the expiration of the
Lock-Up Period), sale, contract to sell, grant of an option to sell (unless the
optionee cannot exercise such option until after the expiration of the Lock-Up
Period) or other disposition.
"ECIP" shall have the meaning set forth in the recitals hereto.
"ECIP Contribution Agreement" shall have the meaning set forth in the
recitals hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Holder" shall have the meaning set forth in the recitals hereto.
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"Issuance Registration Expiration Date" shall have the meaning set
forth in Section 3A(a) hereof.
"Issuance Registration Statement" shall have the meaning set forth in
Section 3A(a) hereof.
"Limited Partnership Agreement" shall have the meaning set forth in the
recitals hereto.
"Maximum Share Number" shall mean 10,080,685 (i.e., that number of
Common Shares equal to the difference between (a) 20% of the Company's
outstanding Common Shares as of the date hereof (12,705,357) and (b) the number
of Common Shares issuable upon conversion of Series A Preferred Shares issued to
Prudential, or any of its designees, under that certain Stock Purchase Agreement
of even date herewith between the Company and Prudential (2,624,672)). The
Maximum Share Number shall be appropriately adjusted in the case of any
dividends on Common Shares payable in Common Shares, any split of Common Shares,
or any reverse split or combination of Common Shares.
"NASD" means the National Association of Securities Dealers, Inc.
"Non-Redemption Period" shall have the meaning set forth in Section
2(a) hereof.
"Outside Effective Date" shall have the meaning set forth in Section
3A(a) hereof.
"Partnership" shall have the meaning set forth in the recitals hereto.
"Permitted Distributee" means a direct or indirect holder of equity
interests, as of the date hereof, in a Holder, as listed on Schedule B hereto,
which Permitted Distributee has delivered to the Company a Representation Letter
(as defined in the Contribution Agreements).
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Preferred Units" shall have the meaning set forth in the recitals
hereto.
"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.
"Prudential" shall have the meaning set forth in the recitals hereto.
"Resale Shelf Registration Expiration Date" shall have the meaning set
forth in Section 3(A)(b) hereof.
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"Resale Shelf Registration Statement" shall have the meaning set forth
in Section 3A(b) hereof.
"Registrable Shares" (a) when used with respect to a non-Affiliate
Holder, shall mean the Shares of such Holder, excluding (i) Shares for which a
Registration Statement relating to the issuance or 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); (b) when used with respect to an Affiliate Holder, shall mean the
Shares of such Affiliate 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 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 (c) 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. 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" shall mean Rule 144 under the Securities Act (or any
successor provision).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission.
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"Series A Preferred Shares" shall mean shares of the Company's series
of preferred stock, par value $.01 per share, called the Series A Preferred
Stock.
"Series Three Preferred Units" shall have the meaning set forth in the
recitals hereto.
"Series Two Preferred Units" shall have the meaning set forth in the
recitals hereto.
"Shares" (a) when used with respect to a Holder, shall mean any Common
Shares issued (or which are not currently outstanding but are issuable) to the
Holder upon redemption or in exchange for Source Common Units and (b) when used
without reference to a Holder, shall mean the Shares of all Holders; provided,
that any Common Shares issued in respect of Shares as a stock dividend or in
connection with a stock split, reorganization, reclassification, merger,
consolidation or similar event shall also be deemed to be "Shares" for purposes
of this Agreement.
"Source Common Units" shall mean Common Units which are held by a
Holder and which Common Units were issued, or which are not currently
outstanding but are issuable, upon conversion of Preferred Units which were
issued by the Partnership pursuant to a Contribution Agreement.
"Three ECW" shall have the meaning set forth in the recitals hereto.
"Three ECW Contribution Agreement" shall have the meaning set forth in
the recitals hereto.
"Three ECW Property Contribution Agreement" shall have the meaning set
forth in the recitals hereto.
"Units" shall mean the Preferred Units and the Common Units that may be
acquired upon conversion of the Preferred Units.
2. Disposition Restrictions; Mandatory Cash Redemptions.
(a) Lock-Up Period. Each Holder hereby agrees that for a period of
one year after the date hereof (the "Lock-Up Period"), it will not Dispose of
any Units; provided, however, that, subject to Sections 2(b), such Holder may:
(i) Dispose of Units to a Permitted Distributee;
(ii) Dispose of Units to another Holder;
(iii) 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) Dispose of Units to any other Person; provided, that within
a reasonable period of time (but in no event less than five
(5) business days) prior to
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such Disposition, such Holder provides to the Company (i)
written notice reasonably describing the terms,
circumstances and intended date of such Disposition and (ii)
a written opinion of nationally recognized counsel that such
Disposition shall not cause the Company or the Partnership
to (a) violate, or have been in violation of, any law,
statute, code, rule, regulation, administrative or executive
order or other requirement or policy of any governmental
authority or (b) be subject to, or have been in violation
of, the disclosure or proxy-related obligations for roll-up
transactions set forth in Section 14(h) of the Exchange Act
or Items 901-915 of Regulation S-K of the Securities Act in
connection with the issuance of the Units pursuant to the
Contribution Agreements;
and provided, further, that the transferor shall, in connection with any
Disposition, at the reasonable request of the Company, provide evidence
reasonably satisfactory to the Company that the transfer is exempt from the
registration requirements of the Securities Act.
Following the expiration of the Lock-Up Period, the only contractual
restrictions on the Disposition of Units shall be those set forth herein and in
the Limited Partnership Agreement and the Company's Certificate of
Incorporation.
(b) Binding Obligation; Certain Provisions of Organizational
Documents. If a Holder Disposes of Shares or Units under any provision of this
Section 2, such Shares and 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 unless such
transferee is already a Holder. Thereafter, such transferee shall be deemed to
be a Holder for purposes of this Agreement. The provisions set forth in this
Agreement permitting Dispositions of the Shares and Units shall not be deemed in
any manner to limit any provision of the Company's Certificate of Incorporation
or the Partnership's Limited Partnership Agreement which set forth restrictions
or limitations on the transferability of Shares or Units.
(c) After a number of Common Shares equal to the Maximum Share Number
has been issued by the Company, pursuant to Section 8.6.B of the Limited
Partnership Agreement, in exchange for Source Common Units presented to the
Partnership for redemption, the Partnership shall be irrevocably obligated to
pay to any Holder that presents Source Common Units for redemption the
appropriate Cash Amount (as defined in the Limited Partnership Agreement),
pursuant to Section 8.6.A of the Limited Partnership Agreement (i.e., the
Company shall lose its rights under Section 8.6.B of the Limited Partnership
Agreement to acquire such Units for Common Shares).
3A. Registration with Respect to Holders.
(a) Filing of Issuance Registration Statement. Subject to the
conditions set forth in this Agreement, the Company shall cause to be filed with
the SEC by September 2, 2002 a Registration Statement (the "Issuance
Registration Statement") under Rule 415 under the Securities Act relating to (i)
the issuance to the Holders of Registrable Shares upon the redemption of Common
Units or in exchange for Common Units and (ii) the sale by any Holder
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who is an affiliate of the Company (as defined in Rule 144(a) under the
Securities Act) (each, an "Affiliate Holder") of all of the Registrable Shares
of such Holder or Holders in accordance with the terms hereof, and shall use
reasonable best efforts to cause such Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. In the event that the
Company is unable to cause the Issuance Registration Statement to be declared
effective by the SEC prior to November 1, 2002 (the "Outside Effective Date"),
then the provisions of Section 3A(b) shall apply. The Company agrees to use
reasonable best efforts to keep the Registration Statement, after its date of
effectiveness, continuously effective until the date on which (i) all Holders
have redeemed or exchanged for Common Shares the Common Units that may be issued
upon conversion of Preferred Units and (ii) the Affiliate Holders (A) no longer
hold any Registrable Shares or (B) may sell all of the Registrable Shares held
by such Affiliate Holders pursuant to Rule 144(k) (or any successor provision)
(hereinafter referred to as the "Issuance Registration Expiration Date").
(a-1) Notwithstanding the foregoing, in the event the Conversion Date
with respect to a Holder's Preferred Units accelerates due to the consummation
of a "Cash Business Combination" (as defined in the relevant Preferred Units'
Certificate of Designations), (i) the Company's obligations under Section 3A(b)
below shall become immediately effective with respect to such Holder (provided,
however, that the Company must file the Resale Registration Statement (as
defined below) within forty-five (45) days of the consummation of such
transaction) and (ii) the Company's obligations under Section 3A(a) above shall
terminate with respect to such Holder.
(b) Registration Statement Covering Resale of Common Shares. In the
event that the Company determines that it is unable to cause the Issuance
Registration Statement to be declared effective by the SEC by the Outside
Effective Date or (except as otherwise permitted by Sections 9(b) and 10) is
unable or it is impracticable to keep such Issuance Registration Statement
continuously effective until the Issuance Registration Expiration Date, the
Company shall cause to be filed with the SEC, within ten (10) business days
after the Company makes such determination, a Registration Statement (the
"Resale Shelf Registration Statement") under Rule 415 under the Securities Act
relating to the resale by each Holder of all Registrable Shares of such Holder.
The Company shall use reasonable best efforts to cause such Registration
Statement to be declared effective by the SEC as soon as practicable thereafter.
The Company agrees to use reasonable best efforts to keep the Resale Shelf
Registration Statement, after its date of effectiveness, continuously effective
until the earlier of (a) the date on which all Registrable Shares have been
disposed of by the Holders or (b) the date on which all Registrable Shares have
become eligible for sale pursuant to Rule 144(k) (or any successor provision)
(the "Resale Shelf Expiration Date"). After the Company has filed the Resale
Shelf Registration Statement, any obligation of the Company to file the Issuance
Registration Statement pursuant to Section 3A(a) shall be suspended for so long
as the Resale Shelf Registration Statement remains effective.
(c) Demand Registration. Subject to the conditions set forth in this
Agreement, at any time after the later of the Resale Shelf Registration
Expiration Date and the Issuance Registration Expiration Date and while any
Registrable Shares are outstanding (or are not currently outstanding, but are
issuable), the Company shall, at the written request of any Holder
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holding Registrable Shares, cause to be filed within twenty (20) business days
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 best 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 Conversion Date,
while any Registrable Shares of a Holder are outstanding (or are not currently
outstanding, but are issuable) and (except as otherwise permitted by Sections
9(b) and 10) a Registration Statement applicable to Holders under Sections
3A(a), 3A(b) or 3A(c) is not effective, the Company 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 or for the accounts of other Holders,
the Company shall give prompt written notice of such proposed filing to the
Holders. The notice referred to in the preceding sentence shall offer the
Holders 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, 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 from Holders within twenty (20) 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 by the Holders and holders under similar
registration rights agreements 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 applicable Common Shares requested
to be included in such registration by any holders identified in that certain
Registration Rights and Lock-Up Agreement dated June 23, 1997, as amended from
time to time, by and among the Company and such holders, and (iii) third, up to
the full number of applicable Registrable Shares requested to be included in
such registration by any Holders and any other holders under similar
registration rights agreements with the Company which, in the case of this
clause (iii), in the opinion of such managing underwriter, can be sold without
adversely affecting the price range or probability of success of such offering
(with, to the extent necessary, Registrable Shares allocated pro rata among the
Holders and such
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other holders on the basis of the total number of Common Shares requested to be
included in such registration by all such holders). If in connection with any
registration under this Section 3A(d), the Common Shares to be registered will
be distributed by or through one or more underwriters, then the Company will
make reasonable efforts, upon the request of any Holder requesting registration
of Registrable Shares under this Section 3A(d), to arrange for such underwriters
to include the Registrable Shares of such Holder among the Shares to be
distributed by or through such underwriters.
3B. Miscellaneous Provisions Relating to Registration Statements.
(a) 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.
(b) 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) the Issuance Registration Expiration
Date (in the case of a Registration Statement filed pursuant to Section 3A(a)
hereof) or the Resale Registration Expiration Date (in the case of a
Registration Statement filed pursuant to Section 3A(b) hereof) or (b) the date
on which the Registration Statement ceases to be effective in accordance with
the terms of this Section 3. Upon ten (10) 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 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.
(c) Notice of Certain Events. The Company shall promptly notify each
applicable 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 applicable to such Holder
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
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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.
(d) Underwritten Offerings. In the case of an underwritten offering
of Registrable Shares in which Holders will offer a number of Registrable Shares
with an aggregate offering price to the public of at least $35 million (provided
such number of shares represents at least 20 times the average daily trading
volume of Common Shares during the four weeks preceding the request by the
Holders to initiate an underwritten offering), the Company shall permit Holders
who hold a majority of all Registrable Shares held by the Holders who are
participating in such offering to select the investment banker(s) and manager(s)
who will administer such offering, subject to the approval of the Company which
will not be unreasonably withheld. In connection with any such underwritten
offering, the Company (upon ten (10) business days advance notice) will (i)
enter into underwriting and related agreements reasonably acceptable to the
Company with customary terms (including representations and warranties and
indemnification provisions, such provisions to be, to the extent customary, in
favor of the selling Holders as well as the underwriters, but which terms,
however, shall be no less favorable to the Company than the most recent
underwriting agreement entered into by the Company); (ii) to the extent not
otherwise disruptive of the Company's operations, reasonably cooperate with the
underwriter(s); (iii) provide customary closing documentation; (iv) to the
extent necessary, amend the Registration Statement; (v) to the extent not
otherwise disruptive of the Company's operations, provide such information and
make available appropriate personnel as may reasonably be requested by the
Holders or the managing underwriters, and (vi) to the extent not otherwise
disruptive of the Company's operations, provide such Holder and underwriters and
their respective counsel and accountants, if any, the opportunity to participate
in the preparation of such Registration Statement, provided, that (a) Company
personnel will not be required to participate in road show presentations (but,
upon reasonable advance notice and to the extent not unduly disruptive of the
Company's operations, Company personnel whose identity and office may be
reasonably determined by the Company will be available to participate in a
reasonable number of conference calls) and (b) the Company will be reimbursed by
the Holders participating in the offering (who shall be jointly and severally
liable for such reimbursement) for any out of pocket costs and expenses in
connection with such cooperation to the extent such expenses are greater than
the expenses, or are not the type of expenses, which would be borne by the
Company in the case of other Registration Statements filed hereunder (e.g., the
cost of preparing glossy prospectuses with pictures and the cost of any road
show presentations in which the Company may in its sole discretion may elect to
participate).
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
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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. Except as provided in Section 3B(d), 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, fiduciaries and affiliates, and any underwriter (as defined in
the Securities Act (unless a formal underwriting agreement is entered into
between the Company and such underwriter, in which case the indemnification
provisions, if any, set forth therein shall apply), 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 the Securities Act or of any rule or regulation
promulgated thereunder (i) applicable to the Company and relating to action or
inaction required of the Company in connection with any Registration Statement
or Prospectus, or (ii) 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 (a) 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 in writing by such person to the Company for use in connection with
the Registration Statement or the Prospectus contained therein by such
Indemnitee or (b) 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
11
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 (severally and not
jointly) 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 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
(including, without limitation, reasonable fees, expenses and disbursements of
attorneys and other professionals) 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 such Holder, its plan of distribution or its ownership interests,
which was furnished to the Company by such 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.
Notwithstanding the provisions of this Section 7, no Holder shall be required to
pay as indemnification hereunder any amount in excess of the gross proceeds from
the sale of Shares by such Holder which gave rise to the incurrence of such
indemnification.
8. Indemnification Procedures.
Any person entitled to indemnification under this Agreement shall
notify promptly the indemnifying party in writing of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made hereunder, but the failure of any indemnified party to provide such notice
shall not relieve the indemnifying party of its obligations hereunder, except to
the extent the indemnifying party is materially prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than hereunder. In case any action or proceeding is
brought against an indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside counsel to
the indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof (alone or jointly with any other indemnifying party similarly notified),
to the extent that it chooses, with counsel reasonably
12
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party that it so chooses, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof; provided, however, that (i) if the indemnifying party fails to take
reasonable steps necessary to defend diligently the action or proceeding within
twenty (20) business days after receiving notice from such indemnified party
that the indemnified party believes it has failed to do so; or (ii) if such
indemnified party who is a defendant in any action or proceeding which is also
brought against the indemnifying party reasonably shall have reasonably
concluded, based on the advice of counsel, that there may be one or more legal
defenses available to such indemnified party which are not available to the
indemnifying party; or (iii) if representation of both parties by the same
counsel is otherwise inappropriate under applicable standards of professional
conduct, then, in any such case, the indemnified party shall have the right to
assume or continue its own defense as set forth above (but with no more than one
firm of counsel for all indemnified parties in each jurisdiction, except to the
extent any indemnified party or parties reasonably shall have concluded, based
on the advice of counsel, that there may be legal defenses available to such
party or parties which are not available to the other indemnified parties or to
the extent representation of all indemnified parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct) and
the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified party
(which shall not be unreasonably withheld), effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or (to
the knowledge of the indemnifying party) threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
9. 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.
(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
13
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 unadvisable to cause the
Registration Statement or such filings to become effective or to amend or
supplement the Registration Statement, but such suspension shall continue only
for so long as such event or its effect is continuing. The Company shall
promptly notify the Holders of the existence and, in the case of circumstances
referred to in clause (i) of this Section 9(b), nature of any Suspension Event,
and shall promptly notify the Holders upon the expiration of such 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
fifteen (15) day period prior to, and during the sixty (60) day period beginning
on, the date of commencement of such Company-initiated offering (such period, or
such lesser period as the Company may specify, a "Company Sale Period"), subject
to its rights under Section 3A(d) hereof, and provided, that any such request
shall be made no more then two times in any twelve-month period.
(d) Notwithstanding anything to the contrary in this Agreement, in no
event shall Suspension Events be permitted to take effect more than twice in any
twelve-month period and in no event shall Suspension Events and Company Sale
Periods be permitted to take effect for more than an aggregate of one hundred
twenty (120) days in any twelve-month period.
10. 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. 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 the
Company will be obligated to resume effecting redemptions of Common Units under
an Issuance Registration Statement, 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 five (5) business days after the conclusion
of any such Suspension Event.
11. 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.
14
12. 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 12 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 not be just and
equitable if contribution pursuant to this Section 12 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 12, 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.
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 one-half of the aggregate of all
Shares held by (or issuable to) such 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 registered
or certified mail (return receipt requested), postage 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):
If to the Company: Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
00
Xxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Holders: As listed on the applicable Holder
Signature Page
(other than Holders of
Series Three Preferred Units)
with a copy to: Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Holders of Series
Three Preferred Units: As listed on the applicable Holder
Signature Page
with a copy to: O'Melveny & Xxxxx LLP
Embarcadero Center West
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
In addition to the manner of notice permitted above, notices given pursuant to
Sections 9 and 10 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 Shares and/or Units
pursuant to Section 2 hereof.
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.
16
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.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BOSTON PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
BOSTON PROPERTIES LIMITED
PARTNERSHIP
By: Boston Properties, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
18
SCHEDULE A
LIST OF HOLDERS
Series Two Preferred Units
Rockmark Corporation
Xxxxx X. Xxxxxx
Xxxx X.X. Xxxx
Xxxxx X. Xxxxxxxx Trust
Xxxxxxx deP. Xxxxxxx, Jr.
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxxxx
Xxxx X. Xxxxxxx
EC HOLDINGS, INC.
Portman Family Trust
Xxxxxxx X. Pounds
Xxxxx Xxxxxxxxxxx
DR & Descendants Partnership
Estate of Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx 1968 Trust
Salomon 1969 Trust
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Winrock International Institute for Agricultural Development
WRTEC, INC.
Xxxx X. Xxxxxxx
Fedmark Corporation
ECW Investor Associates
Realrock I
ECW Claymark Investors
WR Trust
Series Three Preferred Units
One Embarcadero Center Venture
Three Embarcadero Center Venture
Four Embarcadero Center Venture
Three Embarcadero Center West
19
SCHEDULE B
LIST OF PERMITTED DISTRIBUTEES
HOLDER CURRENT OWNER OF INTEREST IN
------ ----------------------------
HOLDER and PERMITTED DISTRIBUTEES
---------------------------------
ROCKMARK CORPORATION Xxxxxxxx Xxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx Rockefeller
Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxxxxxx, Jr.
Xxxxxxx X. Xxxxxxxxxxx
XXXXX X. XXXXXXXX TRUST Xxxxx Xxxxxxxx
EC HOLDINGS, INC 1. AMC, Inc. 100% shareholder
2. FBCC Co., in excess of 42% shareholder
of AMC, Inc. having an address at 000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx
00000
PORTMAN FAMILY TRUST Children & Grandchildren of Xxxx Xxxxxxx
DR & DESCENDANTS, L.L.C. (formerly Xxxxx Xxxxxxxxxxx
DR & Descendants Partnership) Xxxxx Xxxxxxxxxxx, Jr.
Xxxx Xxxxxxx Rockefeller
Xxxx Xxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Xxxxxx Xxxxxxx
ESTATE OF XXXXXXX X. XXXXXXX Various to be designated by Xxxxxxx X.
Xxxxxxx
XXXXXXX 1968 TRUST Xxxxxxx X. Xxxxxxx or his designees
SALOMON 1969 TRUST Xxxxxxx X. Xxxxxxx or his designees
WINROCK INTERNATIONAL INSTITUTE To be designated by Winrock International
FOR AGRICULTURAL DEVELOPMENT
WRTEC, INC. To be designated by WRTEC, Inc.
20
FEDMARK CORPORATION Xxxxxxxx Xxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxxxxxx, Jr.
Xxxxxxx X. Xxxxxxxxxxx
ECW INVESTOR ASSOCIATES Xxxxx Xxxxxxxxxxx
Rockmark
DRDP
Xxxxx X. Xxxxxxxx Trust
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx, Xx.
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxx
REALROCK I Rockefeller & Co., Inc.
Xxxxxxx X. Pounds
28 Clients of Rockefeller & Co., Inc.
ECW CLAYMARK INVESTORS Fedmark Corporation
Xxxxx X. Xxxxxx
Xxxx X. X. Xxxx
Xxxxxxx de X. Xxxxxxx, Xx.
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Estate of Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
XX TRUST To be designated by WR Trust
21
