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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
Dated as of_________ , 1997
by and among
EQUITY OFFICE PROPERTIES TRUST
and
the Persons Listed on
the Signature Page Hereto
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TABLE OF CONTENTS
1. Definitions........................................... 1
2. Demand Registration................................... 3
(a) Request for Registration....................... 3
(b) Effective Registration and Expenses............ 4
(c) Priority on Demand Registrations............... 4
(d) Selection of Underwriters...................... 5
3. Shelf Registration Under the Securities Act........... 5
(a) Filing of Shelf Registration Statement......... 5
(b) Expenses....................................... 6
(c) Inclusion in Shelf Registration Statement...... 6
4. Holdback Agreements................................... 6
5. Registration Procedures............................... 6
6. Repurchase by Company of Shares Subject to
Registration Notice................................... 10
7. Indemnification; Contribution......................... 11
(a) Indemnification by the Company................. 11
(b) Indemnification by Holders..................... 12
(c) Conduct of Indemnification Proceedings......... 12
(d) Contribution................................... 13
8. Rule 144 Sales........................................ 14
(a) Compliance..................................... 14
(b) Cooperation with Holders....................... 14
9. Miscellaneous......................................... 14
(a) Amendments and Waivers......................... 14
(b) Notices........................................ 14
(c) Successors and Assigns......................... 15
(d) Counterparts................................... 15
(e) Headings....................................... 15
(f) Governing Law.................................. 15
(g) Specific Performance........................... 15
(h) Entire Agreement............................... 16
(i) Limitation of Liability of Shareholders and
Officers of the Company........................ 16
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of _________, 1997, by and among EQUITY OFFICE PROPERTIES TRUST, a
Maryland real estate investment trust (the "Company"), and the persons listed on
the signature page hereto, including their successors, assigns and transferees
(herein referred to collectively as the "Holders" and individually as a
"Holder").
WHEREAS, on the date hereof each Holder expects to become the owner of
Units (as defined below) in the Operating Partnership (as defined below) or
Common Shares (as defined below) in connection with certain transactions (the
"Formation Transactions") described in the IPO Registration Statement (as
defined below); and
WHEREAS, as a condition to receiving the consent or agreement of the
Holders to the Formation Transactions, the Company has agreed to grant the
Holders the registration rights provided for in Sections 2, 3 and 4 below; and
WHEREAS, as a condition to the initial public offering of the Common Shares
(as defined below) of the Company, the parties are willing to enter into the
agreements contained herein.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Closing Price" of the Common Shares for any given day shall mean (i) if
the Common Shares are listed or admitted to trading on a national securities
exchange, the reported last sale price of the Common Shares regular way on such
day or, in case no such sale takes place on such day, the average of the
reported closing bid and asked prices regular way, on such national securities
exchange on such day or (ii) if the Common Shares are not listed or admitted to
trading on any national securities exchange but are traded in the
over-the-counter market, the average of the closing bid and asked prices in the
over-the-counter market on such day.
"Common Shares" shall mean the common shares of beneficial interest, par
value $.01 per share, of the Company.
"Company" shall mean Equity Office Properties Trust, a Maryland real estate
investment trust, and its successors.
"Demand Registration" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
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"Holder" or "Holders" shall mean the persons listed on the signature page
hereto (other than the Company), including their successors, assigns and
transferees.
"IPO Registration Statement" shall mean the registration statement on Form
S-11 (No. 333-______ ) relating to the initial public offering of the Common
Shares by the Company.
"Notice" shall have the meaning set forth in Section 2(a) hereof.
"Operating Partnership" shall mean EOP Operating Limited Partnership, a
Delaware limited partnership, and its successors.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization or other legal entity or a government or agency or
political subdivision thereof.
"Prospectus" shall have the meaning set forth in Section 5(b) hereof.
"Registrable Securities" shall mean the Shares, excluding (i) Shares that
have been disposed of pursuant to a Demand Registration Statement, Shelf
Registration Statement or any other effective registration statement, (ii)
Shares sold or otherwise transferred pursuant to Rule 144 under the Securities
Act, (iii) Shares that are held by Holders who are not, as of the date of this
Agreement, affiliates of the Company that are eligible for sale pursuant to Rule
144(k) under the Securities Act, and (iv) Shares held by each Holder who is an
affiliate of the Company if all of such Shares are eligible for sale pursuant to
Rule 144 under the Securities Act and could be sold in one transaction in
accordance with the volume limitations contained in Rule 144(e)(1)(i) under the
Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all applicable registration and filing fees imposed by the SEC, the New York
Stock Exchange, Inc. or the National Association of Securities Dealers, Inc.
("NASD"), (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 qualification of any of the Registrable Securities
under any state securities or blue sky laws 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 the Shelf 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 Securities on any securities exchange or
exchanges pursuant to Section 6(l) hereof, and (v) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance. Registration
Expenses shall specifically exclude underwriting discounts and commissions, the
fees and disbursements of counsel representing a selling Holder or any
underwriter or agent acting on behalf of a Holder, and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a selling
Holder, all of which shall be borne by such Holder in all cases.
"Registration Notice" shall have the meaning set forth in Section 5(b)
hereof.
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"Rule 144(f) Registrable Securities" shall mean that number of Registrable
Securities, when aggregated with the number of Shares actually sold pursuant to
Rule 144 by the Holder, equal to or less than 1% of the outstanding Common
Shares at the time a request for registration is made under Section 2(a), which
Shares the Holder proposes to sell in "block trades" which are not "brokers'
transactions" in compliance with the "manner of sale" requirement of Rule
144(f).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Selling Holder" shall mean any Holder who sells Registrable Securities
pursuant to a public offering registered hereunder.
"Shares" shall mean any Common Shares issued to the persons listed on the
signature page hereto or to Holders upon conversion of their Units and any
additional Common Shares issued as a dividend, distribution or exchange for, or
in respect of such Common Shares prior to the Selling Holder's exercise of its
rights hereunder.
"Shelf Registration" shall mean a registration required to be effected
pursuant to Section 4 hereof.
"Shelf Registration Statement" shall have the meaning set forth in Section
3(a) hereof.
"State Street" shall means State Street Bank & Trust Co., as trustee of
three BellSouth Corporation employee benefit plans.
"Units" shall mean the limited partnership interests of the Operating
Partnership issued to the persons listed on the signature page hereto, which
interests are exchangeable for Common Shares, or at the Company's option, cash.
2. Demand Registration.
(a) Request for Registration.
At any time after the first anniversary of the consummation of the
IPO, each Holder may make up to one written request during each 12-month period
commencing on such first anniversary (specifying the intended method of
disposition) for registration under the Securities Act (each, a "Demand
Registration") of all or part of such Holder's Registrable Securities (but such
part, together with the number of securities requested by other Holders to be
included in such Demand Registration pursuant to this Section 2(a), shall have
an estimated market value at the time of such request (based upon the then
market price of a Common Share of the Company) of at least $10,000,000).
Notwithstanding the foregoing, the Company shall not be required to file any
registration statement pursuant to this Section 2 on behalf of any Holder within
six months after the effective date of any earlier registration statement so
long as the Holder requesting the Demand Registration was given a notice
offering it the opportunity to sell Registrable Securities under the earlier
registration statement and such Holder did not request that all of its
Registrable Securities be included; provided, however, that
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if a Holder requested that all or a part of its Registrable Securities be
included in the earlier registration statement but not all or such part were so
included through no fault of the Holder, such Holder may, but shall not be
obligated to, require the Company to file another registration statement
pursuant to a Demand Registration (subject, in the event of a Demand
Registration for less than all such remaining Registrable Securities, to the
same $10,000,000 limitation set forth above) exercised by such Holder within
six months of the effective date of such earlier registration statement.
Within ten days after receipt of a request for a Demand Registration, the
Company shall give written notice (the "Notice") of such request to all other
Holders and shall include in such registration all Registrable Securities that
the Company has received written requests for inclusion therein within 15 days
after the Notice is given. Thereafter, the Company may elect to include in
such registration additional Common Shares to be issued by the Company. In
such event, such shares to be issued by the Company in connection with a Demand
Registration shall be deemed to be Registrable Securities and the Company shall
be deemed to be a holder thereof. All requests made pursuant to this Section
2(a) shall specify the aggregate number of Registrable Securities to be
registered. Each Holder shall be entitled to one Demand Registration
hereunder. Upon the second anniversary of the IPO all rights to Demand
Registrations hereunder shall terminate and be of no further force and effect,
except that State Street shall continue to have a Demand Registration right
with respect to all Registrable Securities issued to it in the Formation
Transactions.
(b) Effective Registration and Expenses.
A registration shall not constitute a Demand Registration under
Section 2(a) hereof until it has become effective. In any registration
initiated as a Demand Registration, the Company shall pay all Registration
Expenses incurred in connection therewith, whether or not such Demand
Registration becomes effective, unless such Demand Registration fails to become
effective as a result of the fault of one or more Holders, in which case the
Company will not be required to pay the Registration Expenses incurred with
respect to the offering of such Holder or Holders' Registrable Securities. The
Registration Expenses incurred with respect to the offering of such Holder or
Holder's Registrable Securities shall be the product of (a) the aggregate amount
of all Registration Expenses incurred in connection with such registration and
(b) the ratio that the number of such Registrable Securities bears to the total
number of Registrable Securities included in the registration.
(c) Priority on Demand Registrations.
The Holder making the Demand Registration may elect whether the
offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of a firm commitment underwritten offering or that such
offering be made on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act as provided in Section 3 hereof. In any case in which an
offering is in the form of a firm commitment underwritten offering, if the
managing underwriter or underwriters of such offering advise the Company in
writing that in its or their opinion the number of Registrable Securities
proposed to be sold in such offering exceeds the number of Registrable
Securities that can be sold in such offering without adversely affecting the
market for the Company's Common Shares, the Company will include in such
registration the number of Registrable Securities that in the opinion of such
managing underwriters can be sold without adversely affecting the market for the
Company's Common Shares. In such event, the number of Registrable Securities, if
any, to be offered for the
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accounts of Holders (including the Holder making the Demand Registration) shall
be reduced pro rata on the basis of the relative number of any Registrable
Securities requested by each such Holder to be included in such registration to
the extent necessary to reduce the total number of Registrable Securities to be
included in such offering to the number recommended by such managing
underwriter or underwriters.
(d) Selection of Underwriters.
If any of the Registrable Securities covered by a Demand Registration
are to be sold in an underwritten offering, the Company shall have the right to
select the investment banker or investment bankers and manager or managers that
will underwrite the offering; provided, however, that such investment bankers
and managers must be reasonably acceptable to the Selling Holders.
3. Shelf Registration Under the Securities Act
(a) Filing of Shelf Registration Statement.
In fulfillment of its obligation to file a registration statement
pursuant to Section 2 hereof, upon the written request of a Holder the Company
may cause to be filed a shelf registration statement (the "Shelf Registration
Statement") providing for the sale by the Holders of all, but not less than all,
of their Registrable Securities in accordance with the terms hereof and will use
its reasonable efforts to cause such Shelf Registration Statement to be declared
effective by the SEC as soon thereafter as is practicable. The Company agrees
to use its reasonable efforts to keep the Shelf Registration Statement with
respect to the Registrable Securities continuously effective for a period
expiring on the earlier of (i) the date on which all of the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
thereto and (ii) the date on which (A) all Shares that such Holders own or have
the right to obtain in exchange for Units held by Holders who are not affiliates
of the Company, in the opinion of counsel for the Company, which counsel shall
be reasonably acceptable to such Holders, are eligible for sale pursuant to Rule
144(k) under the Securities Act and (B) all Shares that such Holders own or have
the right to obtain in exchange for Units held by each Holder who is an
affiliate of the Company, in the opinion of counsel for the Company, which
counsel shall be reasonably acceptable to such Holder, are eligible for sale
pursuant to Rule 144 under the Securities Act and could be sold in one
transaction in accordance with the volume limitations contained in Rule
144(e)(1)(i) under the Securities Act. Subject to Sections 5(b), 5(i) and 6,
the Company further agrees to amend the Shelf Registration Statement if and as
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or any rules and regulations thereunder; provided,
however, that the Company shall not be deemed to have used its reasonable
efforts to keep the Shelf Registration Statement effective during the applicable
period if it voluntarily takes any action that would result in Selling Holders
not being able to sell Registrable Securities covered thereby during that
period, unless such action is required under applicable law or the Company has
filed a post-effective amendment to the registration statement and the SEC has
not declared it effective or except as otherwise permitted by the last three
sentences of Section 5(b).
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(b) Expenses.
Except as provided herein, the Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 3(a). The
Company shall not be liable for any underwriting discounts and commissions, the
fees and disbursements of counsel representing a Holder or any underwriter or
agent acting on behalf of a Holder, and transfer taxes, if any, relating to the
sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement or Rule 144 under the Securities Act.
(c) Inclusion in Shelf Registration Statement.
Any Holder who does not provide the information reasonably
requested by the Company in connection with the Shelf Registration Statement as
promptly as practicable after receipt of such request, but in no event later
than ten (10) days thereafter, shall not be entitled to have its Registrable
Securities included in the Shelf Registration Statement.
4. Holdback Agreements.
(a) Each Holder (a) participating in an underwritten offering
covered by any Demand Registration or (b) in the event the Company is issuing
shares of beneficial interest to the public in an underwritten offering, agrees,
if requested by the managing underwriter or underwriters for such underwritten
offering, not to effect any public sale or distribution of Registrable
Securities or any securities convertible into or exchangeable or exercisable for
such Registrable Securities, including a sale pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act, during the 14 days
prior to, and during the 180-day period beginning on, the effective date of such
Demand Registration or other underwritten offering (except as part of such
underwritten offering).
(b) In addition, each Holder agrees that with respect to any
registration statement covering Registrable Securities that is effective prior
to the second anniversary of the consummation of the IPO, during any three-month
period, such Holder shall sell only Rule 144 (f) Registrable Securities under
such registration statement prior to the second anniversary of the IPO. After
the second anniversary of the IPO, sales of all Registrable Securities shall be
permitted hereunder.
5. Registration Procedures
In connection with the obligations of the Company with respect to
a registration contemplated by Sections 2 and 3 hereof, the Company shall:
(a) prepare and file with the SEC, as soon as reasonably
practicable after receipt of a written request pursuant to Section 2 or Section
3, a registration statement, which registration statement shall (i) be available
for the sale of the Registrable Securities in accordance with the intended
method or methods of distribution by the Selling Holders thereof and (ii) comply
as to form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed therewith;
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(b) subject to the last three sentences of this Section 5(b) and
Section 5(i) hereof, (i) prepare and file with the SEC such amendments to such
registration statement as may be necessary to keep such registration statement
effective for the applicable period; (ii) cause the prospectus which is part of
such registration statement (a "Prospectus") to be amended or supplemented as
required and to be filed as required by Rule 424 or any similar rule that may be
adopted under the Securities Act; (iii) respond as promptly as practicable to
any comments received from the SEC with respect to the registration statement or
any amendment thereto; and (iv) comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during the applicable period in accordance with the intended method or
methods of distribution by the Selling Holders thereof. Notwithstanding anything
to the contrary contained herein, the Company shall not be required to take any
of the actions described in clauses (i), (ii) or (iii) in this Section 5(b),
Section 5(d) or Section 5(i) with respect to each Holder of Registrable
Securities (x) to the extent that the Company is in possession of material
non-public information that it deems advisable not to disclose or is engaged in
active negotiations or planning for a merger or acquisition or disposition
transaction and it delivers written notice to each such Selling Holder of
Registrable Securities to the effect that such Selling Holder may not make
offers or sales under the registration statement for a period not to exceed
thirty (30) days from the date of such notice; provided, however, that the
Company may deliver only two such notices within any twelve-month period, (y)
unless and until the Company has received a written notice (a "Registration
Notice") from a Selling Holder that such Selling Holder intends to make offers
or sales under a registration statement as specified in such Registration
Notice; provided, however, that the Company shall have ten (10) business days to
prepare and file any such amendment or supplement after receipt of the
Registration Notice or such longer period as is reasonably necessary if such
preparation and filing are not commercially practicable within ten (10) business
days or (z) to the extent the Company elects pursuant to Section 6 hereof to
purchase the Shares which are the subject of the Registration Notice. Once a
Selling Holder has delivered a Registration Notice to the Company, such Selling
Holder shall promptly provide to the Company such information as the Company
reasonably requests in order to identify such Selling Holder and the method of
distribution in a post-effective amendment to the registration statement or a
supplement to the Prospectus. Such Selling Holder also shall notify the Company
in writing upon completion of such offer or sale or at such time as such Selling
Holder no longer intends to make offers or sales under the registration
statement;
(c) furnish to each Selling Holder of Registrable Securities
without charge, as many copies of each Prospectus and any amendment or
supplement thereto as such Holder may reasonably request in order to facilitate
the public sale or other disposition of the Registrable Securities; the Company
consents to the use of the Prospectus and any amendment or supplement thereto by
each such Selling Holder of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or
amendment or supplement thereto;
(d) use its reasonable efforts to register or qualify the
Registrable Securities by the time a registration statement is declared
effective by the SEC under all applicable state securities or blue sky laws of
such jurisdictions in the United States and its territories and possessions as
any Holder of Registrable Securities covered by a registration statement shall
reasonably request in writing, keep each such registration or qualification
effective during the period such registration statement is required to be kept
effective or during the period offers or sales are being made by a Selling
Holder that has delivered a Registration Notice to the
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Company, whichever is shorter; provided, however, that in connection therewith,
the Company shall not be required to (i) qualify as a foreign corporation to do
business or to register as a broker or dealer in any such jurisdiction where it
would not otherwise be required to qualify or register but for this Section
5(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a
general consent to service of process in any such jurisdiction;
(e) notify each Selling Holder of Registrable Securities promptly
and, if requested by such Selling Holder, confirm in writing, (i) when a
registration statement and any post-effective amendments thereto have become
effective, (ii) when any amendment or supplement to the applicable Prospectus
has been filed with the SEC, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
registration statement or any part thereof or the initiation of any proceedings
for that purpose, (iv) if the Company receives any notification with respect to
the suspension of the qualification of the Registrable Securities for offer or
sale in any jurisdiction or the initiation of any proceeding for such purpose,
and (v) of the happening of any event during the period a registration statement
is effective as a result of which (A) such registration statement contains any
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
or (B) the applicable Prospectus as then amended or supplemented contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the registration statement or any part
thereof as promptly as possible;
(g) furnish to each Selling Holder of Registrable Securities
without charge, at least one conformed copy of the applicable registration
statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the Selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any Securities Act legend; and
enable certificates for such Registrable Securities to be issued at least two
business days prior to any sale of Registrable Securities for such numbers of
shares and registered in such names as the Selling Holders may reasonably
request, upon ten (10) business days prior notice;
(i) subject to the last three sentences of Section 5(b) hereof,
upon the occurrence of any event contemplated by clause (x) of Section 5(b) or
clause (v) of Section 5(e) hereof, use its reasonable efforts promptly to
prepare and file an amendment or a supplement to the Prospectus or any document
incorporated therein by reference or prepare, file and obtain effectiveness of a
post-effective amendment to the registration statement, or file any other
required document, in any such case to the extent necessary so that, as
thereafter delivered to the purchasers of the Registrable Securities, such
Prospectus as then amended or supplemented will not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they are
made, not misleading;
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(j) make available for inspection by the Selling Holders of
Registrable Securities and any counsel, accountants or other representatives
retained by such Selling Holders all financial and other records, pertinent
corporate documents and properties of the Company and cause the officers,
directors and employees of the Company to supply all such records, documents or
information reasonably requested by such Selling Holders, counsel, accountants
or representatives in connection with the registration statement; provided,
however, that such records, documents or information which the Company
determines in good faith to be confidential and notifies such Selling Holders,
counsel, accountants or representatives in writing that such records, documents
or information are confidential shall not be disclosed by such Selling Holders,
counsel, accountants or representatives unless (i) such disclosure is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction, or
(ii) such records, documents or information become generally available to the
public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any registration
statement or any amendment thereto, or any Prospectus or any amendment or
supplement thereto, provide copies of such document (not including any documents
incorporated by reference therein unless requested) to the Selling Holders of
Registrable Securities;
(l) use its reasonable efforts to cause all Registrable
Securities to be listed on any securities exchange on which similar securities
issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the any applicable registration statement;
(n) use its reasonable efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement covering at
least 12 months which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(o) if requested by a Selling Holder and any underwriters engaged
by such Selling Holder for purposes of distributing the Registrable Securities,
enter into such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings) and take all such other
reasonable actions in connection therewith (including those reasonably requested
by the underwriters or such Selling Holder) in order to expedite or facilitate
the disposition of such Registrable Securities, and in such connection, (i) make
such representations and warranties to the underwriters with respect to the
business of the Company and the registration statement, Prospectus and
documents, if
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agreement is entered into, the same shall contain indemnification provisions
and procedures no less favorable to the underwriters than those set forth in
Section 7 hereof and cross indemnification by the underwriters similar to that
set forth in Section 7 hereof in favor of the Company or the Selling Holders,
as the case may be; and (v) deliver such documents and certificates as may be
reasonably requested by the managing underwriters and their counsel to evidence
the continued validity of the representations and warranties made pursuant to
clause (i) above of this Section 5(o) and to evidence compliance with any
customary conditions contained in the underwriting agreement entered into by
the Company.
The Company may require each Selling Holder of Registrable
Securities to furnish to the Company in writing such information regarding the
proposed distribution by such Selling Holder of such Registrable Securities as
the Company may from time to time reasonably request in writing.
In connection with and as a condition to the Company's
obligations with respect to the Shelf Registration Statement pursuant to Section
3 hereof and this Section 5, each Selling Holder covenants and agrees that (i)
it will not offer or sell any Registrable Securities under the Shelf
Registration Statement until it has provided a Registration Notice pursuant to
Section 5(b) and has received copies of the Prospectus as then amended or
supplemented as contemplated by Section 5(c) and notice from the Company that
the registration statement and any post-effective amendments thereto have become
effective as contemplated by Section 5(e); (ii) upon receipt of any notice from
the Company contemplated by Section 5(b) (in respect of the occurrence of an
event contemplated by clause (x) of Section 5(b)) or Section 5(e) (in respect of
the occurrence of an event contemplated by clause (v) of Section 5(e)), such
Selling Holder shall not offer or sell any Registrable Securities pursuant to
the Shelf Registration Statement until such Selling Holder receives copies of
the supplemented or amended Prospectus contemplated by Section 5(i) hereof and
receives notice that any post-effective amendment has become effective, and, if
so directed by the Company, such Selling Holder will deliver to the Company (at
the expense of the Company) all copies in its possession, other than permanent
file copies then in such Selling Holder's possession, of the Prospectus as
amended or supplemented at the time of receipt of such notice; (iii) all offers
and sales by such Selling Holder under the Shelf Registration Statement must be
completed within sixty (60) days after the first date on which offers or sales
can be made pursuant to clause (i) above, and upon expiration of such sixty (60)
day period, the Selling Holder may not offer or sell any Registrable Securities
under the Shelf Registration Statement until it has again complied with the
provisions of clause (i) above; (iv) such Selling Holder and any of its
partners, officers, trustees, directors or affiliates, if any, must comply with
the provisions of Regulation M under the Exchange Act as applicable to them in
connection with sales of Registrable Securities pursuant to the Shelf
Registration Statement; and (v) such Selling Holder and any of its partners,
officers, trustees, directors or affiliates, if any, must enter into such
written agreements as the Company shall reasonably request to ensure compliance
with clause (iv) above.
6. Repurchase by Company of Shares Subject to Registration Notice.
(a) Upon receipt by the Company of a Registration Notice, the
Company may, but shall not be obligated to, purchase from such Holder all, but
not less than all, of the Shares which are the subject of such Registration
Notice at a price per share equal to the average of the Closing Prices of the
Common Shares for the five trading days immediately preceding the date of the
Registration Notice. In the event the Company elects to purchase the
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Shares which are the subject of a Registration Notice, the Company shall notify
the Holder of such Shares within five business days of the date of receipt of
the Registration Notice by the Company, which notice shall indicate: (i) that
the Company will purchase the Shares which are the subject of the Registration
Notice, (ii) the price per share, calculated in accordance with the preceding
sentence, which the Company will pay to such Holder and (iii) the date upon
which the Company shall repurchase such Shares, which date shall not be later
than the tenth business day after receipt of the Registration Notice relating
to such Shares.
(b) If the Company elects to purchase the Shares which are the
subject of such Registration Notice in accordance with this Section 6, the
Company shall be relieved of its obligations under Section 5(b), (c), (d), (e),
(g), (h), (i) and (j) with respect to such Shares or as the result of such
Registration Notice.
7. Indemnification; Contribution.
(a) Indemnification by the Company.
The Company agrees to indemnify and hold harmless each Holder and
its officers and directors and each Person, if any, who controls any Holder
within the meaning of Section 15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to which such Holder, officer, director or
controlling Person may become subject under the Securities Act or otherwise (A)
that arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a registration statement or any
amendment thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (B) that arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or alleged untrue statement or any omission or alleged
omission contained in a registration statement, if such settlement is effected
with the written consent of the Company; and
(iii) subject to the limitations set forth in Section 7(c),
against any and all expense whatsoever, as incurred (including reasonable fees
and disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether or
not a party, or any claim whatsoever based upon any such untrue statement or
alleged untrue statement or
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omission or alleged omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this
Section 7(a) shall not apply to any Holder with respect to any
loss, liability, claim, damage or expense that arise out of or
are based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by
such Holder expressly for use in a registration statement or any
amendment thereto or the Prospectus or any amendment or
supplement thereto.
(b) Indemnification by Holders.
Each Holder severally agrees to indemnify and hold harmless the
Company and the other Selling Holders, and each of their respective partners,
trustees, directors and officers (including each trustee and officer of the
Company who signed the registration statement), and each Person, if any, who
controls the Company or any other Selling Holder within the meaning of Section
15 of the Securities Act, to the same extent as the indemnity contained in
Section 7(a) hereof, but only insofar as such loss, liability, claim, damage or
expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in a registration statement or
any amendment thereto or the Prospectus or any amendment or supplement thereto
in reliance upon and in conformity with written information furnished to the
Company by such Selling Holder for use therein relating to the Holder's status
as a selling security holder. Notwithstanding the provisions of this Section
7(b), Holder shall not be required to indemnify the Company with respect to any
amount in excess of the amount by which the total price at which the Registrable
Securities of Holder were offered to the public exceeds the amount of any
damages which Holder would otherwise have been required to pay pursuant to this
Section 7(b).
(c) Conduct of Indemnification Proceedings.
Each indemnified party shall give reasonably prompt notice to
each indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party (i) shall not relieve it from any liability which it may have
under the indemnity agreement provided in Section 7(a) or (b) above, unless and
to the extent it did not otherwise learn of such action and the lack of notice
by the indemnified party materially prejudices the indemnifying party or results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) shall not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided under Section 7(a) or (b) above. After receipt of such notice, the
indemnifying party shall be entitled to participate in and, at its option,
jointly with any other indemnifying party so notified, to assume the defense of
such action or proceeding at such indemnifying party's own expense with counsel
chosen by such indemnifying party and approved by the indemnified party, which
approval shall not be unreasonably withheld; provided, however, that, if the
defendants in any such action or proceeding include both the indemnified party
and the indemnifying party and the indemnified party reasonably determines, upon
advice of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
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in addition to those available to the indemnifying party, then the indemnified
party shall be entitled to one separate counsel, the reasonable fees and
expenses of which shall be paid by the indemnifying party. If the indemnifying
party does not assume the defense of any such action or proceeding, after
having received the notice referred to in the first sentence of this paragraph,
the indemnifying party will pay the reasonable fees and expenses of counsel
(which shall be limited to a single law firm) for the indemnified party. In
such event, however, the indemnifying party will not be liable for any
settlement effected without the written consent of such indemnifying party. If
the indemnifying party assumes the defense of any such action or proceeding in
accordance with this paragraph, such indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified party incurred thereafter
in connection with such action or proceeding except as set forth in the proviso
in the second sentence of this Section 7(c).
(d) Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 7 is
for any reason held to be unenforceable although applicable in accordance with
its terms, the Company and the Selling Holders shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Company and the Selling Holders, in
such proportion as is appropriate to reflect the relative fault of and benefits
to the Company on the one hand and the Selling Holders on the other (in such
proportions that the Selling Holders are severally, not jointly, responsible for
the balance), in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits to the indemnifying
party and indemnified parties shall be determined by reference to, among other
things, the total proceeds received by the indemnified party and indemnified
parties in connection with the offering to which such losses, claims, damages,
liabilities or expenses relate. The relative fault of the indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
the indemnified parties, and the parties' relative intent, pledge, access to
information and opportunity to correct or prevent such action.
The parties hereto agree that it would not be just or equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), no Selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Selling Holder were offered to
the public exceeds the amount of any damages which such Selling Holder would
otherwise have been required to pay by reason of such untrue statement or
omission.
Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7(d), each Person, if
any, who controls a Holder within the meaning of Section 15 of the Securities
Act and directors and officers of a Holder shall have the same rights to
contribution
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as such Holder, and each trustee of the Company, each officer of the Company
who signed the registration statement and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall have the
same rights to contribution as the Company.
8. Rule 144 Sales.
(a) Compliance.
The Company covenants that, so long as it is subject to the
reporting requirements of the Exchange Act, it will file the reports required to
be filed by it under the Exchange Act so as to enable any Holder to sell
Registrable Securities pursuant to Rule 144 under the Securities Act.
(b) Cooperation with Holders.
In connection with any sale, transfer or other disposition by any
Holder of any Registrable Securities pursuant to Rule 144 under the Securities
Act, the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any Securities Act legend, and enable certificates for
such Registrable Securities to be issued at least two business days prior to any
sale of Registrable Securities for such number of shares and registered in such
names as the Selling Holders may reasonably request upon ten (10) business days
prior notice. The Company's obligation set forth in the previous sentence shall
be subject to the delivery, if reasonably requested by the Company or its
transfer agent, by counsel to such Holder, in form and substance reasonably
satisfactory to the Company and its transfer agent, of an opinion that such
Securities Act legend need not appear on such certificate.
9. Miscellaneous.
(a) Amendments and Waivers.
The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified, supplemented or waived, nor may
consent to departures therefrom be given, without the written consent of the
Company and the Holders of a majority of the outstanding Registrable Securities
(treating for the purpose of such computation the Holders of Units as the
Holders of Registrable Securities issuable upon exchange of such Units),
provided, however, that no amendment, modification, supplement or waiver of, or
consent to the departure from, the provisions of Sections 2, 3, 4, 5, 7 or 8
hereof shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities. Notice of any
such amendment, modification, supplement, waiver or consent adopted in
accordance with this Section 9(a) shall be provided by the Company to each
Holder of Registrable Securities at least thirty (30) days prior to the
effective date of such amendment, modification, supplement, waiver or consent.
(b) Notices.
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any
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courier guaranteeing overnight delivery, (i) if to a Holder, at such Holder's
registered address appearing on the share register of the Company or the Unit
register of the Operating Partnership or (ii) if to the Company, at Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000, Attention: Xxxxxxx X.
Xxxxxxxx, President and Chief Executive Officer.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; or
at the time delivered if delivered by an air courier guaranteeing overnight
delivery.
(c) Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including,
without limitation and without the need for an express assignment, subsequent
Holders. If any successor, assignee or transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding Registrable Securities such Person shall be
conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
(d) 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.
(e) Headings.
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland without giving effect to the conflicts of
law provisions thereof.
(g) Specific Performance.
The parties hereto acknowledge that there would be no adequate
remedy at law if any party fails to perform any of its obligations hereunder,
and accordingly agree that each party, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction.
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(h) Entire Agreement.
This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
(i) Limitation of Liability of Shareholders and Officers of the
Company.
ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE COMPANY WHICH
MAY ARISE AT ANY TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR LIABILITY WHICH
MAY BE INCURRED BY IT PURSUANT TO ANY OTHER INSTRUMENT, TRANSACTION OR
UNDERTAKING CONTEMPLATED HEREBY SHALL BE SATISFIED, IF AT ALL, OUT OF THE
COMPANY'S ASSETS ONLY. NO SUCH OBLIGATION OR LIABILITY, OTHER THAN THIS
AGREEMENT AS IT RELATES TO EACH OF THE HOLDERS, SHALL BE PERSONALLY BINDING
UPON, NOR SHALL RESORT FOR THE ENFORCEMENT THEREOF BE HAD TO, THE PROPERTY OF
ANY OF ITS SHAREHOLDERS, TRUSTEES, OFFICERS, EMPLOYEES OR AGENTS (SOLELY AS A
RESULT OF THEIR STATUS AS SHAREHOLDERS, TRUSTEES, OFFICERS, EMPLOYEES OR
AGENTS), REGARDLESS OF WHETHER SUCH OBLIGATION OR LIABILITY IS IN THE NATURE OF
CONTRACT, TORT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THIS SECTION 9(I)
SHALL NOT IN ANY WAY AFFECT OR LIMIT ANY OBLIGATION OR LIABILITY OF ANY HOLDER
UNDER THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above
EQUITY OFFICE PROPERTIES TRUST
By:__________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
HOLDERS:
EQUITY OFFICE HOLDINGS, L.L.C.
By:__________________________________
Name:
Title:
EQUITY OFFICE PROPERTIES, L.L.C.
By:__________________________________
Name:
Title:
[UNITHOLDERS]
_____________________________________
[ZML SHAREHOLDERS]
_____________________________________
