EXHIBIT 10.2
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is entered into as of
December 17, 1997 between Cabot Industrial Trust, a Maryland real estate
investment trust (the "Company"), and Stichting Bedrijspensioenfonds Voor de
Metaalnijhverheid, Stichting Pensionfonds ABP, MS Real Estate Special
Situtations Inc., The Xxxxxx Xxxxxxx Real Estate Special Situations Fund I,
L.P., The Xxxxxx Xxxxxxx Real Estate Special Situations Fund II, L.P. and Xxxxxx
Xxxxxxx Real Estate Special Situations Real Estate Investors, L.P. (the
"Purchaser").
R E C I T A L S:
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WHEREAS, the Company proposes to make an initial public offering (the
"Public Offering") of its common shares of beneficial interest, par value $.01
per share ("Common Shares"), underwritten by certain underwriters (the
"Underwriters"); and
WHEREAS, the Company desires to sell and the Purchaser desires to purchase,
immediately following the Closing (as defined below), up to $20 million of
Common Shares (the "Concurrent Shares") at a price per share equal to the price
to public per share in the Public Offering upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
1. Purchase and Sale of Concurrent Shares. The Purchaser hereby agrees to
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purchase from the Company and the Company hereby agrees to issue and sell to the
Purchaser the Concurrent Shares at a price per share equal to the price to
public per share in the Public Offering (the "Price Per Share") at the Closing
(as defined below). At the Closing, the Company shall sell to the Purchaser and,
subject to the terms and conditions set forth herein, the Purchaser shall
purchase from the Company the Concurrent Shares at an aggregate price equal to
the Price Per Share multiplied by the number of Concurrent Shares so purchased
which shall equal $20 million (as nearly as possible, subject to the number of
Concurrent Shares being a whole number); provided however, that in the event the
gross proceeds in the Public Offering will be less than $125 million, the
Purchaser may in its discretion elect, as of the date the Price Per Share is
determined, to reduce the amount of Concurrent Shares to a dollar amount (as
nearly as possible, subject to the number of Concurrent Shares being a whole
number) which is not less than 15% of the gross proceeds in the Public Offering.
The Company and the Purchaser agree to cooperate reasonably to accomplish the
Public Offering and to work in good faith to revise the terms of this Agreement
in the event the Securities and Exchange Commission raises any objections to the
terms of this Agreement, and in the event such objections of the Securities and
Exchange Commission cannot be satisfied by the parties in such manner, the
Company may in its discretion terminate this Agreement (other than Section 7).
2. Closing. The closing of the purchase and sale of the Concurrent Shares
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(the "Closing") shall take place at the same location as, and immediately
following, the closing of the sale of Common Shares in the Public Offering. At
the Closing, the Company shall deliver to the Purchaser a certificate or
certificates evidencing the Concurrent Shares being purchased by the Purchaser,
registered in the Purchaser's or its nominee's name, upon payment of the
purchase price therefor by wire transfer of immediately available funds to the
Company's account at a bank designated by the Company.
3. Conditions of Purchaser's Obligation at the Closing. The obligation of
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the Purchaser to purchase and pay for the Concurrent Shares at the Closing is
subject to the satisfaction as of the Closing of the following conditions:
(a) Representations and Warranties. The representations and warranties
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made by or on behalf of the Company in Section 5 and in the underwriting
agreement between the Company and the Underwriters in connection with the Public
Offering shall be accurate in all material respects at and as of the Closing as
though then made.
(b) Registration Agreement. The Company shall have entered into a
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Registration Rights and Lock-Up Agreement substantially in the form of Exhibit A
hereto (the "Registration Agreement").
(c) Public Offering Pricing. The Company shall have entered into a
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binding agreement with the Underwriters not later than February 15, 1997 as to
the Price Per Share in the Public Offering.
(d) Closing Documents. The Company shall have delivered to the
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Purchaser all of the following documents:
(i) an Officer's Certificate, dated the date of the Closing,
certifying to the Purchaser the same representations and warranties made by or
on behalf of the Company to or for the benefit of the Underwriters in the
underwriting agreement between the Company and the Underwriters in connection
with the Public Offering and, as the Purchaser may reasonably request, relating
to the issuance and sale of the concurrent Shares; and stating that the
conditions specified in Sections 3(a) and (c) have been fully satisfied;
(ii) a copy of the resolutions duly adopted by the Company's
Board of Trustees authorizing the execution, delivery and performance of this
Agreement and the Registration Agreement, and the issuance and sale of the
Concurrent Shares;
(ii) a copy of the Company's Declaration of Trust and Bylaws,
each as in effect at the Closing;
(iv) an originally executed copy of each opinion and certificate
delivered to or for the benefit of the Underwriters by or on behalf of the
Company at the closing of the
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Public Offering, each addressed directly to the Purchaser and, as the Purchaser
may reasonably request, relating to the issuance and sale of the concurrent
Shares; and
(v) a copy of the final prospectus (the "Prospectus") and
Registration Statement on Form S-11 (the "Registration Statement") filed by the
Company with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), in connection with the Public
Offering.
4. Conditions of Company's Obligation at the Closing. The obligation of
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the Company to issue and sell the Concurrent Shares at the Closing is subject to
the satisfaction as of the Closing of the following conditions:
(a) Representations and Warranties. The representations and warranties
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contained in Section 6 shall be accurate in all material respects at and as of
the Closing as though then made.
(b) Registration Agreement. The Purchaser shall have entered into the
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Registration Agreement.
(c) Closing Documents. The Purchaser shall have delivered to the
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Company all of the following documents:
(i) an Officer's Certificate, dated the date of the Closing,
stating that the condition specified in Section 4(a) has been fully satisfied;
and
(ii) a copy of the resolutions duly adopted by the appropriate
Board of Directors authorizing the execution, delivery and performance of this
Agreement and the Registration Agreement, and the purchase of the Concurrent
Shares.
5. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Purchaser as follows:
(a) This Agreement has been duly authorized, executed and delivered by
the Company.
(b) The Concurrent Shares have been duly authorized and, when
delivered to and paid for by the Purchaser in accordance with the terms of this
Agreement, will be validly issued, fully paid and, except as described in the
Registration Statement, non-assessable and will conform to the description
thereof in the Registration Statement.
6. Representations and Warranties of the Purchaser. The Purchaser
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hereby represents and warrants to the Company as follows:
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(a) The Purchaser is composed of (i) The Xxxxxx Xxxxxxx Real Estate
Special Situations Funds I, L.P., (ii) The Xxxxxx Xxxxxxx Real Estate Special
Situations Fund II, L.P., (iii) Stichting Pensionfonds ABP, (iv) Stichting
Bedrijspensioenfonds Voor De Metaalnijhverheid, (v) MS Real Estate Special
Situations Inc. and (vi) Xxxxxx Xxxxxxx Real Estate Special Situations
Investors, L.P., each of which is an "accredited investor" within the meaning of
Rule 501 of Regulation D as promulgated under the Securities Act.
(b) Xxxxxx Xxxxxxx Asset Management Inc. ("MSAM") is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware. MSAM has all requisite power and authority to own and operate
its properties and carry on its business as now conducted.
(c) MSAM is duly authorized to enter into and perform this Agreement
and the Registration Rights Agreement on behalf of the Purchaser. This
Agreement has been duly executed and delivered by MSAM on behalf of the
Purchaser.
(d) The Purchaser is acquiring the Concurrent Shares being purchased
by it for its own account for the purpose of investment and not with a view to
or for sale in connection with any distribution thereof, except that at or after
Closing the Purchaser may direct that an affiliate of the Republic of Singapore
be issued a portion of the Concurrent Shares. The Purchaser does not have a
present intention or plan to effect any distribution of the Concurrent Shares,
provided that the disposition of the Concurrent Shares owned by Purchaser shall
at all times be and remain within its respective control, subject to the
provisions of the Agreement and the Registration Rights Agreement. The
Purchaser is able to bear the economic risk of the acquisition of the Concurrent
Shares pursuant hereto and can afford to sustain a total loss on such
investment, and MSAM, on its own behalf and on that of the person included in
the Purchaser, has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the proposed
investment, and therefore has the capacity to protect the interests of the
Purchaser in connection with the acquisition of the Concurrent Shares pursuant
hereto. The Purchaser is advised by, and includes certain persons which are, a
"qualified institutional buyer" as defined in Rule 144A under the Securities
Act.
(e) The Purchaser understands and acknowledges and agrees that the
Concurrent Shares have not been registered under the Securities Act or any other
applicable securities law and, unless so registered, may not be offered, sold or
otherwise transferred except in compliance with the registration requirements of
the Securities Act or any other applicable securities law, pursuant to an
exemption therefrom or in a transaction not subject thereto. The Purchaser
acknowledges that the Concurrent Shares received by it pursuant to this
Agreement shall be in the form of physical certificates and that, unless and
until the Concurrent Shares have been registered under the Securities Act, the
certificates shall bear a legend to the following effect:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
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SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS (i) IN THE CASE OF A
SALE, DISPOSITION OR OTHER TRANSFER TO A PERSON WITH RESPECT TO ASSETS OF WHICH
ARE UNDER MANAGEMENT BY XXXXXX XXXXXXX ASSET MANAGEMENT INC. OR ANY OF ITS
AFFILIATES, THE TRANSFEROR REPRESENTS THAT THE PROPOSED SALE, DISPOSITION OR
OTHER TRANSFER MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND
(ii) IN ALL OTHER CASES, THE TRANSFEROR DELIVERS TO THE COMPANY AN OPINION OF
COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY, IN FORM AND
SUBSTANCE SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE,
TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT. THESE SECURITIES MAY NOT BE TRANSFERRED IN VIOLATION OF ANY
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS.
7. Expenses. Each party shall pay all costs and expenses which it incurs
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in connection with the negotiation, execution, delivery and performance of this
Agreement; provided, however, that, on or prior to the earlier of the Closing or
February 15, 1998, the Company shall pay the reasonable fees and expenses of the
Purchaser's outside legal counsel, up to a maximum of $25,000.
8. Successors and Assigns. This Agreement shall inure to the benefit of
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and be binding upon the successors and assigns of each of the parties. Except
as specifically provided hereby, the Purchaser shall not be permitted to assign
any of its rights hereunder to any third party without the consent of the
Company, other than to (a) one or more Affiliates of the Purchaser of which the
Purchaser, directly or indirectly, beneficially owns a majority of the voting
power and the economic interests, and (b) a Person, with respect to assets of
which are under management by Xxxxxx Xxxxxxx Asset Management, Inc. or any of
its affiliates, provided that such affiliate and such Person agree to be bound
hereby and provided that any bona fide financial institution to which any
Purchaser or any permitted transferee has sold, transferred, pledged or
otherwise disposed of (including upon foreclosure of a pledge) Common Shares for
the purpose of securing bona fide indebtedness of a Purchaser shall also be
entitled to enforce the rights of the Purchaser hereunder.
9. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
10. Counterparts. This Agreement may be executed in any number of
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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.
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11. Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
12. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York without giving effect to the
conflicts of law provisions thereof.
13. Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand delivery, registered first-
class mail, telex, telecopier or any courier guaranteeing overnight delivery (a)
if to the Purchaser, at the address indicated below:
Xxxxxx Xxxxxxx Asset Management, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
and if to the Company, at the address indicated below:
Cabot Industrial Trust
Xxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Executive Officer
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. 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.
14. Entire Agreement. This Agreement is intended by the parties as a final
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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.
15. Limitation of Liability of Shareholders, Trustees and Officers of the
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Company. ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE COMPANY WHICH MAY ARISE
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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
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BE SATISFIED, IF AT ALL, OUT OF THE COMPANY'S ASSETS ONLY. NO SUCH OBLIGATION OR
LIABILITY 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, REGARDLESS OF WHETHER SUCH OBLIGATION OR LIABILITY IS IN
THE NATURE OF CONTRACT, TORT OR OTHERWISE.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CABOT INDUSTRIAL TRUST
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxxxx
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Name: Xxxxx Xxxxxxxxx-Xxxxxxxx
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Title: Chief Financial Officer
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XXXXXX XXXXXXX ASSET MANAGEMENT
INC.
As Attorney-In-Fact for each of the clients set
forth on Exhibit B hereto:
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Title: Principal
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Agreed and acknowledged for
purposes of guaranteeing the
payment of expenses in
Section 7 hereof:
CABOT PARTNERS LIMITED PARTNERSHIP
By: Cabot Realty Advisors Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Executive Vice President
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EXHIBIT B
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Purchaser Schedule
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Stichting Bedrijspensioenfonds Voor De Metaalnijhverheid
Stichting Pensionfonds ABP
MS Real Estate Special Situations Inc.
The Xxxxxx Xxxxxxx Real Estate Special Situations Funds I, L.P.
The Xxxxxx Xxxxxxx Real Estate Special Situations Fund II, X.X.
Xxxxxx Xxxxxxx Real Estate Special Situations Real Estate Investors, L.P.
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