EXHIBIT 99.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
BY AND AMONG
BOSTON PROPERTIES, INC., BOSTON PROPERTIES LIMITED PARTNERSHIP
AND THE
HOLDERS NAMED HEREIN
March 1, 2000
TABLE OF CONTENTS
Page
----
1. Certain Definitions............................................3
2. Disposition Restrictions.......................................6
3. Registration...................................................9
4. State Securities Laws.........................................14
5. Expenses......................................................14
6. Indemnification by the Company................................14
7. Covenants of Holders..........................................15
8. Indemnification Procedures....................................16
9. Suspension of Registration Requirement; Restriction on Sales..17
10. Black-Out Period..............................................18
11. Additional Shares.............................................18
12. Contribution..................................................18
13. Amendments and Waivers........................................19
14. Notices.......................................................19
15. Successors and Assigns........................................20
16. Counterparts..................................................20
17. Governing Law.................................................20
18. Severability..................................................20
19. Entire Agreement..............................................20
SCHEDULE A
LIST OF HOLDERS...............................................23
SCHEDULE B
LIST OF PERMITTED DISTRIBUTEES................................24
SCHEDULE C
XXXXXX GROUP..................................................25
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-Up Agreement (this "Agreement") is
entered into as of March 1, 2000 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, the Holders have received on the date hereof units of limited
partnership interest in the Partnership denominated as "Common Units," pursuant
to that certain Contribution and Conveyance Agreement dated June 30, 1998 among
the Company, the Partnership and the parties defined as "Property Owners,"
"Existing Partners" and "Assignors" therein (the "Contribution Agreement");
WHEREAS, the Common Units are being issued to the Holders in a private
placement transaction and accordingly constitute restricted securities;
WHEREAS, upon the presentation of Common Units for redemption in accordance
with the terms hereof and the terms of the Limited Partnership Agreement of the
Partnership, 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 and the Holders have agreed to certain
restrictions on the transferability and redemption of the Common Units and such
Common Shares;
WHEREAS, it is a condition precedent under the Contribution Agreement 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 valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions.
As used in this Agreement, 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):
"Competitor" means a Person that directly or indirectly controls the
management of more than 1,000,000 net rentable square feet of commercial real
estate assets and that is substantially engaged in the business of owning and
operating commercial (i.e., non- residential) real estate for occupancy by third
party tenants; provided, that in the context of a bona fide pledge of Common
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Units or Common Shares to a commercial bank, savings and loan institution,
investment bank or similar lending or financial institution that does not
principally or primarily engage in the ownership and operation of commercial
(i.e., non-residential) real estate, such bank or institution shall not be
deemed to be a Competitor.
"Dispose" and "Disposition" means any offer, pledge, sale, contract to
sell, grant of an option to sell or other disposition, whether direct or
indirect; provided, that redemption of the Common Units, the exchange or
conversion of the Common Units into Common Shares and any exchange of Common
Shares or Common Units in a merger, reorganization, recapitalization or other
similar transaction with respect to the Partnership shall not be included in
this definition.
"The Xxxxxx Group" means collectively Xxxx X. Xxxxxx and the other persons
or entities listed on Schedule C hereto, and any transferee thereof who is
required to become a party to this Agreement in accordance with the terms
hereof, so long as such person holds Common Shares or Common Units, unless the
Company consents otherwise in writing.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"NASD" means the National Association of Securities Dealers, Inc.
"Permitted Distributee" means a direct or indirect holder of equity
interests in a Holder that is listed on Schedule B hereto and that has delivered
to the Company a Representation Letter (as defined in the Contribution
Agreement).
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"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.
"Registrable Shares" (a) when used with respect to a 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) and (b) when used
without reference to a Holder, shall mean the Registrable Shares of all Holders.
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"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, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by a
selling Holder, the fees and disbursements of counsel representing a selling
Holder, and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a selling Holder, all of which shall be borne by such
Holder in all cases.
"Registration Statement" shall mean any registration statement of the
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).
"Rule 144 Transaction" means a transfer of Shares (A) complying with Rule
144 under the Securities Act as such rule is in effect on the date of such
transfer (but only including a sale pursuant to a "brokered transaction" as
defined in clauses (1) and (2) of paragraph (g) of such rule as in effect on the
date hereof) and (B) occurring at a time when Shares are registered pursuant to
Section 12 of the Exchange Act (or any successor to such Section).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" (a) when used with respect to a Holder, shall mean any Common
Shares issued or issuable to the Holder upon redemption or in exchange for
Common Units which are held by such Holder and which Common Units were issued by
the Partnership pursuant to the Source Agreements, 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
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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 Agreements" means (i) the Contribution Agreement and (ii) the
Properties Under Development Contribution Agreement and the Development
Agreement referred to in the Contribution Agreement.
"Underwriting Limit Number" means one-half of the total number of Common
Shares that are issuable upon conversion and exchange of all Common Units issued
under the Source Agreements (as adjusted to reflect any splits, conversions or
the like after the date hereof).
"Volume Limit Number" means one-third of the total number of Common Shares
that are issuable upon conversion and exchange of all Common Units issued under
the Source Agreements (as adjusted to reflect any splits, conversions or the
like after the date hereof).
2. Disposition Restrictions.
(a) Non-Redemption Period. Each Holder hereby agrees that for a period of
three hundred seventy-five (375) days after the date hereof (the "Non-Redemption
Period") or, if later, the date of issuance of such Common Unit, such Holder
will not seek the redemption of the Common Units which were issued by the
Partnership pursuant to the Source Agreements, and prior to the expiration of
such period the Partnership and the Company will be under no obligation to
recognize with respect thereto the redemption rights under Article 8 of the
Partnership Agreement of the Partnership. Commencing on the 375th day after the
date hereof, all such Common Units shall be redeemable, at the option of each
Holder thereof, all in accordance with the exchange features and other rights,
preferences and privileges more particularly provided in the Limited Partnership
Agreement of the Partnership.
(b) 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 Common
Units without the written consent of the Company, which consent may be withheld
in its sole discretion; provided, however, that, subject to Sections 2(d), (e)
and (f), such Holder may:
(i) Dispose of Common Units to a Permitted Distributee;
(ii) Dispose of Common Units pursuant to a grant of a pledge or
security interest in a bona fide transaction with an unrelated
and unaffiliated person who is not known by the transferor to be
a Competitor at the time such interest is granted;
(iii) Dispose of Common Units to a Holder who is not known by the
transferor at the time of such Disposition to be a Competitor;
and
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(iv) Dispose of Common 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 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.
(c) After expiration of the Lock-up Period, each Holder agrees that it will
not Dispose of any Common Units, except that (subject to Sections 2(d), (e) and
(f)):
(i) a Holder who is a natural person may Dispose of Common Units to
his or her spouse, siblings, grandparents, parents (or spouses of
such persons) or any natural or adopted children or other
descendants or to any trust in which any such family members or
such Holder retains a majority of the beneficial interest or to a
Person with respect to which such Holder together with such
Holder's family members maintains and continues to maintain a
majority of the voting and economic interests;
(ii) a Holder that is a corporation, partnership, limited liability
company, joint venture or other business entity may Dispose of
Common Units to one or more Persons who have an ownership
interest in such Holder or to one or more other entities that are
majority owned and controlled, legally and beneficially, by such
Holder or by one or more of the Persons who have an ownership
interest in such Holder;
(iii) a Holder may Dispose of Common Units as a gift or other transfer
without consideration;
(iv) a Holder may Dispose of Common Units pursuant to a pledge, grant
of security interest or other encumbrance effected in a bona fide
transaction with an unrelated and unaffiliated person who is not
known by such holder at the time of such Disposition to be a
Competitor;
(v) a Holder may Dispose of Common Units to any other Holder, in any
transaction of a type permitted under Section 2(b), to any
institutional investor who represents that it is acquiring such
Common Units in the ordinary course of business and without the
purpose or effect of influencing control of the Company or the
Partnership, to the Company, and with the written consent of the
Company (such consent not to be unreasonably withheld or
delayed);
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provided, however, that in the case of any transfer of Shares or Common Units
pursuant to clauses (i), (ii), (iv) and (v), the transferor shall, at the
request of the Company, provide evidence satisfactory to the Company that the
transfer is exempt from the registration requirements of the Securities Act;
provided, further, that any transaction that could be consummated through a
series of transactions under this Section 2(c) may also be consummated at once
as a single transaction without completing any of the intermediary transactions.
(d) Volume Limitation. Except as provided in the last sentence of this
paragraph, without the prior written approval of the Company, which shall not be
unreasonably withheld or delayed, so long as the Holders hold in excess of 1.0%
of the issued and outstanding Common Shares (including for purposes of such
determination (in both the numerator and the denominator), the Common Shares
that may be issued to the Holders upon the presentation of Common Units and/or
any other Units (including Series One Preferred Units) issued pursuant to the
Source Agreements, for redemption but not including Common Shares underlying any
other units of limited partnership interest in the Partnership, options or other
derivative securities), the Holders shall not, collectively, Dispose of more
than the Volume Limit Number of Common Shares in any one hundred eighty (180)
day consecutive period, and the Company may place a restrictive legend on any
Common Shares issued upon conversion of Common Units for the purpose of
monitoring compliance with this provision. In determining the number of Common
Shares that have been Disposed in any one hundred eighty (180) day consecutive
period for purposes of the previous sentence, there shall be excluded any
Dispositions of Common Shares which are exempt from registration (and are not
registered) under the Securities Act and any block trades of Common Shares
executed outside of the normal New York Stock Exchange trading of Common Shares
and which, in either case, are taken by the transferee subject to the continued
restrictions in this agreement. The Company agrees to maintain records of
transfers by the Holders of which the Holders inform the Company and upon any
inquiry by a Holder will provide up-to-date information as to the Volume Limit
Number of Common Shares remaining at any time as of any specified date based on
such information. Notwithstanding the foregoing, (i) any sales of Common Shares
made pursuant to a firm commitment underwriting may, when aggregated with prior
sales by the Holders during the previous one hundred seventy-nine (179) days,
exceed the Volume Limit Number but not the Underwriting Limit Number of Common
Shares and (ii) this paragraph shall not prevent the Holders from Disposing of
Shares in connection with a tender or exchange offer made to all holders of
Common Shares.
(e) Competitors. Each Holder agrees that, without the consent of the
Company, it will not, knowingly, directly or indirectly Dispose of any Shares or
Common Units to a Competitor; provided, that this provision shall not apply:
(i) with respect to a Disposition pursuant to a tender offer or
exchange offer made to substantially all holders of Common Shares or any
tender offer or exchange offer made by the Company or any affiliate of the
Company or any merger, consolidation or recapitalization of the Company;
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(ii) with respect to any Disposition of Shares which is effected by
means of (i) a registered, underwritten public offering or (ii) pursuant to
a Rule 144 Transaction (or other sale) which is effected in the ordinary
course on the New York Stock Exchange (or other exchange where the Shares
may be listed), and which is not in either case engaged in for the purpose
of directly or indirectly Disposing of Shares to a Competitor, provided,
that prior to engaging in such transaction the Holder informs the broker
that may be effecting such sale of the restrictions set forth herein;
(iii) with respect to any Disposition of Shares which is effected
pursuant to a public offering effected with the engagement of a nationally
recognized placement agent (who has been informed of the restrictions in
this provision) involving sales to more than 10 persons, provided, that no
person in such sale who (alone or together with persons the Holder knows to
be affiliates of such person) acquires Shares for an aggregate purchase
price of more than $1,500,000 is known by such Holder to be a Competitor;
and
(iv) to a Disposition of Shares or Common Units to the Company or to
another Holder who is not known by the transferring Holder at the time of
such Disposition to be a Competitor.
(f) Binding Obligation; Certain Provisions of Organizational Documents. If
a Holder Disposes of Shares or Common Units under any provision of this Section
2 (other than a Disposition of the type described in Sections 2(e)(i), (ii) or
(iii)), such Shares and Common 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 (except that a
pledgee shall not be required to execute and deliver a counterpart of this
Agreement until it forecloses upon such Common Units). Thereafter, such
transferee shall be deemed to be the Holder for purposes of this Agreement. The
provisions set forth in this Agreement permitting Dispositions of the Shares and
Common 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 Common Units.
3. Registration.
(a) Filing of Resale Shelf Registration Statement. Subject to the
conditions set forth in this Agreement, the Company shall cause to be filed by
the expiration of the Non- Redemption Period a Registration Statement under Rule
415 under the Securities Act relating to (i) the sale by any Holder who is an
affiliate of the Company (as defined in Rule 144(a) under the Securities Act) of
all of the Registrable Shares of such Holder or Holders in accordance with the
terms hereof and (ii) the sale by any Holder of Registrable Shares as may be
required under Section 3(b)(ii), and shall use reasonable
8
efforts to cause such Registration Statement to be declared effective by the SEC
as soon as practicable thereafter. The Company agrees to use reasonable efforts
to keep the Registration Statement, after its date of effectiveness,
continuously effective with respect to the Registrable Shares of a particular
Holder until the earlier of (a) the date on which such Holder no longer holds
any Registrable Shares or (b) the date on which all of the Registrable Shares
held by such Holder have become eligible for sale pursuant to Rule 144(k) (or
any successor provision) (hereinafter referred to as the "Resale Shelf
Registration Expiration Date").
(b) Registration Statement Covering Issuance of Common Shares.
(i) The Company will, by the expiration of the Non-Redemption Period,
file a registration statement (the "Issuance Registration Statement") under
Rule 415 under the Securities Act relating to the issuance to the Holders
of Registrable Shares upon the redemption of Common Units or in exchange
for Common Units. Thereupon, the Company shall use reasonable efforts to
cause such Registration Statement to be declared effective by the SEC for
all Common Shares covered thereby. The Company agrees to use reasonable
efforts to keep the Issuance Registration Statement continuously effective
until and including the date on which all Holders have redeemed or
exchanged their Common Units for Common Shares or cash (the "Issuance
Registration Expiration Date").
(ii) In the event that the Company determines that it is unable to
cause such Issuance Registration Statement to be declared effective by the
SEC within ninety (90) days after the expiration of the Non-Redemption
Period or (except as otherwise permitted by Sections 9(b) and 10) is unable
or it is impracticable to keep such Issuance Registration Statement
effective until the date on which each Holder has redeemed or exchanged
such Holder's Common Units for Common Shares, then each Holder shall have
the rights set forth in Section 3(a) above whether or not such Holder is an
affiliate of the Company.
(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, the Company shall, at the written request of
any Holder who is unable to sell its Registrable Shares pursuant to Rule 144(k)
(or any successor provision), cause to be filed as soon as practicable after the
date of such request by such Holder 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 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.
9
(d) Piggyback Registration. Following that date that is ninety (90) days
after the expiration of the Non-Redemption Period, if, at any time thereafter,
while any Registrable Shares are outstanding and (except as otherwise permitted
by Sections 9(b) and 10) a Registration Statement applicable to Holders under
Sections 3(a), 3(b) or 3(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, the Company shall give prompt written
notice of such proposed filing to the Holders. The notice referred to in the
preceding sentence shall offer 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 within ten (10) 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 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 3(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 3(d), to
arrange for such underwriters to include the
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Registrable Shares of such Holder among the Shares to be distributed by or
through such underwriters.
(e) 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.
(f) 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) such time as all of the Registrable Shares have been
issued or disposed of in accordance with the intended methods of disposition by
the Holder (in the case of a Registration Statement filed pursuant to Section
3(a) hereof) or issued in accordance with the intended method of issuance by the
Company (in the case of a Registration Statement filed pursuant to Section 3(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.
(g) Notice of Certain Events. The Company shall promptly notify each 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 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 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
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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.
(h) 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 $50 million, 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 reasonable 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 which the Company may in its sole discretion may elect to
participate in).
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
12
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 3(h), 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)
13
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 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 (other than an Issuance Registration Statement) to any
purchaser of the shares covered by such Registration Statement from the Holder
and (c) to indemnify the Company, its officers, directors, employees, agents,
representatives and affiliates, and each person, if any, who controls the
Company within the meaning of the Securities Act, and each other person, if any,
subject to liability because of his connection with the Company, against any and
all losses, claims, damages, actions, liabilities, costs and expenses
(including, without limitation, reasonable fees, expenses and disbursements of
attorneys and other professionals) arising out of or based upon 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,
14
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 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
15
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 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 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.
(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 3(d) hereof, and provided, that any such request shall be
made no more then three 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
eighty (180) 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
16
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 (i) 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, or (ii) if earlier, the date on which the Company sells Common Shares
under a registration statement filed under the Securities Act (except for sales
made under a registration statement on Form S- 8 (or a successor form or
procedure for selling securities pursuant to employee benefit plans and
compensation arrangements) or a sale made in connection with a dividend or
interest reinvestment or direct stock purchase plan.)
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.
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.
17
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 members of the Xxxxxx Group holding in excess of two-thirds
of the aggregate of all Shares held by (or issuable to) such members.
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.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, P.C.
Telecopy: (000) 000-0000
If to the Holders: As listed on the applicable Holder Signature Page
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
18
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 Common 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.
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.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BOSTON PROPERTIES, INC.
By: /s/ Xxxxxxxx Xxxxxx
------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
BOSTON PROPERTIES LIMITED
PARTNERSHIP
By: Boston Properties, Inc.,
its general partner
By: /s/ Xxxxxxxx Xxxxxx
------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
20
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights and Lock-Up Agreement
(the "Registration Rights Agreement") entered into on March 1, 2000 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein in connection with the contribution and conveyance of properties
and assets (or indirect interests therein) located in Princeton, New Jersey. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ Xxxxx Xxxxxx
------------------------
Name (print): Xxxxx Xxxxxx
Date: 3/1/00
21
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights and Lock-Up Agreement
(the "Registration Rights Agreement") entered into on March 1, 2000 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein in connection with the contribution and conveyance of properties
and assets (or indirect interests therein) located in Princeton, New Jersey. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ Xxx Xxxxxx
------------------------
Name (print): Xxx Xxxxxx
Date: 2/29/00
22
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights and Lock-Up Agreement
(the "Registration Rights Agreement") entered into on March 1, 2000 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein in connection with the contribution and conveyance of properties
and assets (or indirect interests therein) located in Princeton, New Jersey. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ Xxxxxx Xxxxx
------------------------
Name (print): Xxxxxx Xxxxx
Date: 3/1/00
23
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights and Lock-Up Agreement
(the "Registration Rights Agreement") entered into on March 1, 2000 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein in connection with the contribution and conveyance of properties
and assets (or indirect interests therein) located in Princeton, New Jersey. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ Xxxx X. Xxxxxx
------------------------
Name (print): Xxxx X. Xxxxxx
Date: 3/1/00
24
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights and Lock-Up Agreement
(the "Registration Rights Agreement") entered into on March 1, 2000 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein in connection with the contribution and conveyance of properties
and assets (or indirect interests therein) located in Princeton, New Jersey. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ Xxxxxxx X. Xxxx
------------------------
Name (print): Xxxxxxx X. Xxxx
Date: 2/22/00
25
SCHEDULE A
LIST OF HOLDERS
Xxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxx III
Xxx Xxxxxx
Xxxxxx Xxxxx
26
SCHEDULE B
LIST OF PERMITTED DISTRIBUTEES
None.
27
SCHEDULE C
XXXXXX GROUP
Xxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxx III
Xxx Xxxxxx
Xxxxxx Xxxxx
28
