EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
by and among
BOSTON PROPERTIES, INC.,
STRATEGIC VALUE INVESTORS II, LLC, and
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Dated: July 2, 1998
TABLE OF CONTENTS
Page
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1. Certain Definitions..............................................2
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2. Registration.....................................................5
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3. State Securities Laws............................................9
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4. Expenses.........................................................9
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5. Indemnification by the Company..................................10
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6. Covenants of Holders............................................10
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7. Suspension of Registration Requirement; Restriction on Sales....11
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8. Limitations on Suspension/Blackout Periods......................12
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9. Additional Shares...............................................13
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10. Contribution...................................................13
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11. No Other Obligation to Register................................14
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12. Amendments and Waivers.........................................14
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13. Notices........................................................14
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14. Successors and Assigns/Restrictions on Transfer................15
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15. Counterparts...................................................15
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16. Governing Law..................................................16
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17. Severability...................................................16
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18. Entire Agreement...............................................16
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i
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as of
July 2, 1998 by and among Boston Properties, Inc., a Delaware corporation (the
"Company"), Strategic Value Investors II, LLC, a Delaware limited liability
company ("SVI-II"), and The Prudential Insurance Company of America, a New
Jersey corporation ("Prudential"; Prudential, SVI-II and their respective
successors and assigns each a "Holder" and, collectively, the "Holders").
WHEREAS, pursuant to the terms of (i) that certain Stock Purchase Agreement
(the "Stock Purchase Agreement") dated as of July 2, 1998 by and among Company
and SVI-II and (ii) that certain Contribution Agreement dated as of May 7, 1998
by and between Boston Properties Limited Partnership (the "Partnership") and
Prudential it is a condition to the obligations of the Holders that the Company
grant certain registration rights to the Holders with respect to the shares of
common stock, par value $.01 per share (the "Common Shares"), of the Company to
be received by Holders pursuant to the Stock Purchase Agreement and pursuant to
any conversion to Common Shares of the Units received by Holders pursuant to the
Contribution 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.
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As used in this Agreement, in addition to the other terms defined herein,
the following capitalized defined terms shall have the following meanings:
"Affiliate" shall mean a Person that directly, or indirectly though one or
more intermediaries, controls, is controlled by, or is under common control with
a specified Person.
"Closing Date" shall mean the Closing Date under the Stock Purchase
Agreement.
"Common Shares" shall mean the common stock, par value $.01 per share, of
the Company.
"Company" shall have the meaning set forth in the preamble to this
Agreement.
"Contribution Agreement" shall have the meaning set forth in the recitals
to this Agreement.
"Demand Registration" shall have the meaning set forth in Section 5(b).
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Fair Market Value" shall mean the closing sales price, or the closing
sales bid if no sales were reported, of the Common Shares as quoted on the New
York Stock Exchange on the date immediately preceding the date of calculation or
if there are no sales or bids for such dates, then for the last preceding
business day for such sales or bids, as reported in The Wall Street Journal or
similar publication.
"Holder" or "Holders" shall have the meaning set forth in the preamble to
this Agreement.
"Indemnitee" shall have the meaning set forth in Section 5.
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"IPO Date" shall mean June 18, 1997, the date of the Company's initial
public offering.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Partnership" shall have the meaning set forth in the recitals to this
Agreement.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Piggyback Registration" shall have the meaning set forth in Section 2(c).
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"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 Registerable Shares covered by such Registration Statement, and
by all other amendments and supplements to such prospectus, including post-
effective amendments, and in each case including all material incorporated by
reference therein.
"Prudential" shall have the meaning set forth in the preamble to this
Agreement.
"Registerable 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 sale thereof shall have become effective under the
Securities Act and which have been issued or disposed of under such Registration
Statement, or (ii) Shares sold pursuant to Rule 144 and (b) when used without
reference to a Holder, shall mean the Registerable Shares of all Holders.
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"Registration Expenses" shall mean all expenses incident to the performance
of or compliance with this Agreement, including without limitation: (i) all
registration and filing fees; (ii) all fees and expenses associated with a
required listing of the registerable securities on any securities exchange;
(iii) fees and expenses with respect to filings required to be made with the
NYSE or the NASD; (iv) fees and expenses of compliance with securities or "blue
sky" laws (including reasonable fees and disbursements of counsel for the
underwriters or holders of securities in connection with blue sky qualifications
of the securities and determination of their eligibility for investment under
the laws of such jurisdictions); (v) printing expenses, messenger, telephone and
delivery expenses; (vi) fees and disbursements of counsel for the Company and
customary fees and expenses for independent certified public accountants
retained by the Company (including the expenses of any comfort letters or costs
associated with the delivery by independent certified public accountants of a
comfort letter or comfort letters); (vii) securities acts liability insurance,
if the Company so desires; (viii) all internal expenses of the Company
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties); (ix) the expense of any annual
audit; and (x) the fees and expenses of any person, including special experts,
retained by the Company; provided, however, that Registration Expenses shall not
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include, and the Company shall not have any obligation to pay, any underwriting
fees, discounts, or commissions attributable to the sale of such securities, or
any legal fees and expenses of counsel to the Holders and any underwriter
engaged by the Holders.
"Registration Statement" shall mean any registration statement of the
Company which covers the issuance or resale of any of the Registerable 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" means Rule 144 under the Securities Act (or any successor
provision).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Shares" (a) when used with respect to a Holder, shall mean (i) the Common
Shares issued to such Holder on the date hereof, and (ii) any Common Shares
issued or to be issuable to such Holder upon redemption or in exchange for Units
held by such Holder and (b) when used without reference to a Holder, shall mean
the Shares of all Holders.
"Shelf Registration" shall mean a registration required to be effective
pursuant to Section 2(a) hereof.
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"Stock Purchase Agreement" shall have the meaning set forth in the recitals
to this Agreement.
"Suspension Event" shall have the meaning set forth in Section 7(b).
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"SVI-II" shall have the meaning set forth in the preamble to this
Agreement.
"Transfer" shall have the meaning set forth in Section 14(a).
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"Units" shall mean the limited partnership units in the Partnership.
2. Registration.
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(a) Filing of Shelf Registration Statement. Subject to the
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conditions set forth in this Agreement, the Company shall cause to be filed a
Registration Statement under Rule 415 under the Securities Act relating to the
sale by the Holders of all of the Registerable Shares of the Holders in
accordance with the terms hereof by August 18, 1998, and shall use reasonable
efforts to cause such Registration Statement to be declared effective by the SEC
as soon as practicable but in no event later than September 30, 1998. The
Company agrees to use reasonable efforts to keep the Registration Statement,
after its date of effectiveness, continuously effective with respect to the
Registerable Shares of each Holder until the earlier of (a) the date on which
such Holder no longer holds any Registerable Shares or (b) the date on which all
of the Registerable Shares held by such Holder have become eligible for sale
pursuant to Rule 144(k) (or any successor provision).
(b) Demand Registration. At any time following September 30, 1998,
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and while any Registerable Shares are outstanding and a Registration Statement
applicable to Holders under Section 2(a) above is not effective, the Company
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shall, at the written request of any Holder or Holders (a "Demand Notice"),
cause to be filed as soon as practicable after the date of such request by such
Holder a Registration Statement in accordance with Rule 413 under the Securities
Act relating to the sale by the Holder of all or a portion of the Registerable
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 (a "Demand Registration");
provided, however, that the Company shall not be required to file such
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Registration Statement unless the number of Registerable Shares included in such
Demand Notice have a Fair Market Value in excess of $25,000,000.
The Company agrees to use reasonable efforts to keep the Demand
Registration continuously effective, after its date of effectiveness, with
respect to the Registerable Shares of
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the requesting Holder or Holders until the earlier of (a) the date on which such
Holder no longer holds any Registerable Shares or (b) the date on which all of
the Registerable Shares held by such Holder have become eligible for sale
pursuant to Rule 144(k) (or any successor provision).
(c) Piggyback Registration. If, at any time while any Registerable
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Shares are outstanding and a Registration Statement applicable to Holders under
Sections 2(a) or 2(b) above is not effective, the Company (in its sole
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discretion and without any obligation to do so) 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 Registerable 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 Registerable 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 Registerable Shares shall be permitted to withdraw all or part of the
Registerable 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 exceeds the number of Common Shares that can
be sold in such offering without impairing the pricing of such offering, the
Company will include the Common Shares of the offerors 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, the Common
Shares requested to be included in such registration by any holder holding
registration rights with respect to restricted or control securities acquired
prior to the Closing Date, including, without limitation, control securities and
restricted securities acquired by Xxxxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxx, and
each of their Affiliates and family members prior to the Closing Date (provided,
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that, for the purposes of this clause, any additional Common Shares received by
Xx. Xxxxxxxxx, Xx. Xxxxx or their Affiliates and family members as a result of
stock splits or stock dividends with respect to securities held by such
individuals prior to the Closing Date shall be deemed to have been received
prior to the Closing Date regardless of when such stock split or stock dividend
actually occurs), (iii) third, up to the full number of applicable Common
Shares, the Registerable Shares requested to be included in such registration by
any Holder (with any such Registerable Shares permitted to be included in such
registration allocated pro rata among the Holders on the basis of the total
number of Registerable Shares requested to be
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included in such registration by all such Holders), and (iv) fourth, up to the
full number of applicable Common Shares, the Common Shares requested to be
included in such registration by any other holder who was granted the right to
participate in such offering which, in the case of clauses (ii), (iii) and (iv),
in the opinion of such managing underwriter, can be sold without adversely
affecting the price range of such offering. The Company covenants and agrees
that it shall not grant "piggyback registration" rights to any holder of the
Company's securities which would permit such holder to participate in an
offering initiated by any Holder.
(d) Notification and Distribution of Materials. The Company shall
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notify each Holder of the effectiveness of any Registration Statement applicable
to the Shares of such Holder and shall furnish to each such Holder, without
charge, 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 Registerable Shares in the manner described in the
Registration Statement.
(e) Amendments and Supplements. The Company shall promptly prepare
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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
Registerable Shares until the earlier of (a) such time as all of the
Registerable Shares have been issued or disposed of in accordance with the
intended methods of disposition by the Holders or issuance by the Company as set
forth in the Registration Statement or (b) the date on which the Registration
Statement is no longer required to be effective under the terms of this
Agreement. 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
Registerable Shares that is reasonably necessary to permit the sale of the
Holder's Registerable Shares pursuant to the Registration Statement.
Concurrently with the effectiveness of any Registration Statement, or amendment
or supplement thereto, required to be filed by the Company hereunder, 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.
(f) Notice of Certain Events. The Company shall promptly notify each
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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
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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 and in any event within
ten (10) business days prepare and furnish to each applicable Holder a
reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registerable 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 shall
promptly and in any event within ten (10) business day amend the Registration
Statement of which such Prospectus is a part to reflect such amendment.
(g) Underwritten Offering.
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(i) If one or more Holders shall propose to sell Registerable
Shares in an underwritten offering, such Holders shall be entitled to
select one (1) lead underwriter for such offering, which selection
shall be subject to the reasonable approval of the Company (provided
that if the Holders select Prudential Securities Incorporated as such
lead underwriter, the Company's approval shall not be required). At
the Company's option, following such selection and approval of a lead
underwriter by the Holders, the Company shall be entitled to select a
co-lead underwriter with respect to such underwritten offering (and
both such underwriters shall accordingly be co-leads provided that the
underwriter designated by the Holders shall be responsible for
maintaining the order book with respect to such offering); provided,
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however, that so long as the Holders' fee arrangement with its
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selected underwriter is negotiated on an arm's-length basis, the fee
rate and expenses payable by Holders to any co-lead underwriter
selected by the Company shall not exceed the fee rate and expenses
payable to the co-lead underwriter selected by the Holders.
(ii) If one or more Holders propose to sell Registerable Shares
with a Fair Market Value greater than or equal to $50,000,000 in an
underwritten offering, then the Company shall make available members
of the management of the Company and its Affiliates for reasonable
assistance in selling efforts related to such offering (including,
without limitation, senior management attendance at due diligence
meetings with underwriters and their counsel and road shows) and shall
enter into underwriting agreements containing usual and customary
terms
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and conditions for such types of offerings and take all such other
reasonable actions in connection therewith in order to expedite or
facilitate the disposition of such Registerable Shares, including
without limitation: (A) make such representations and warranties to
the underwriters with respect to the business of the Company, the
Registration Statement, the Prospectus and any documents, if any,
incorporated or deemed to be incorporated by reference therein, as may
reasonably be required by the underwriters; (B) obtain opinions of
counsel to the Company and updates thereof, addressed to Holders and
each of the underwriters; (C) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Company addressed to Holders and each of the underwriters;
(D) ensure that, if an underwriting agreement is entered into, such
agreement shall contain indemnification provisions and procedures that
are usual and customary for an offering of such size; and (E) deliver
such documents and certificates as may be reasonably requested by the
underwriters and their respective counsel to evidence the continued
validity of the representations and warranties made pursuant to clause
(A) of this Section 2(g)(ii).
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3. State Securities Laws. Subject to the conditions set forth in this
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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 Registerable Shares under the securities or "Blue Sky" laws of such
states as any Holder may reasonably request, and the Company shall use its best
efforts to cause such filings to become effective; provided, however, that the
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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 Registerable 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 is no longer required to be
effective under the terms of this Agreement.
4. Expenses. The Company shall bear all Registration Expenses incurred in
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connection with the registration of the Registerable Shares pursuant to this
Agreement and the Company's performance of its other obligations under the terms
of this Agreement. The Holders shall bear all underwriting fees, discounts or
commissions attributable to the sale of securities by the Holders, or any legal
fees and expenses of counsel to the Holders and any underwriter engaged by
Holders and all other expenses incurred in connection with the performance by
the Holders of their obligations under the terms of this Agreement.
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5. Indemnification by the Company. The Company agrees to indemnify each
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of the Holders and their respective officers, directors, employees, agents,
representatives and Affiliates, 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 any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company under the terms of this Agreement or in connection with any Registration
Statement or Prospectus, or upon any untrue or alleged untrue statement of
material fact contained in any 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
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Company shall not be liable to such Indemnitee or any person who participates as
an underwriter in the offering or sale of Registerable 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 (i) 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 to the Company in writing by such Indemnitee for use in connection
with the Registration Statement or the Prospectus contained therein or (ii) 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.
6. Covenants of Holders. Each of the Holders hereby agrees (a) to
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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
Registerable Shares in connection with the preparation of a Registration
Statement with respect to such Holder's Registerable Shares and any filings with
any state securities commissions as the Company may reasonably request, (b) to
deliver or cause delivery of the Prospectus contained in such Registration
Statement to any purchaser of the shares covered by such Registration Statement
from the Holder and (c) to indemnify the Company, its officers, directors,
employees, agents, representatives and Affiliates, and each person, if any, who
controls the Company within the meaning of the Securities Act, and each other
person or entity, if any, subject to liability because of his, her or its
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either such Registration Statement or the Prospectus contained therein, or any
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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 the Holder, its plan of distribution or its
ownership interests, which was furnished to the Company in writing by the Holder
for use therein unless such statement or omission was corrected in writing to
the Company prior to the date one day 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.
7. Suspension of Registration Requirement; Restriction on Sales.
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(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 Registerable Shares or
the initiation of any proceedings for that purpose. The Company shall use its
best efforts to obtain the withdrawal of any order suspending the effectiveness
of such a Registration Statement at the earliest possible moment and in any
event within forty-five (45) days from the initial date of such suspension.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to file or 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, for one or more periods not to exceed the period described in
Section 8 below, in the event of pending negotiations relating to, or
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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
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purpose for preserving confidentiality or which renders the Company unable to
comply with SEC requirements (such 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 be filed or to become effective or
to amend or supplement the Registration Statement. The Company shall notify the
Holders of the existence of any Suspension Event by promptly delivering each
Holder a certificate signed by an executive officer of the Company stating that
a Suspension Event has occurred and is continuing.
(c) Subject to the terms of Section 8 below, each holder of
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Registerable Shares agrees, 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 Shares of the Company beginning on the
fifteenth (15th) day preceding such underwritten offering, and ending on the
earlier to occur of:
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(i) seventy-five (75) days after the effective date of such
underwritten offering;
(ii) the later to occur of fifty days after the effective date
of such underwritten offering or one (1) day after the
date on which the closing price of the class of equity
securities sold by the Company in such offering shall have
averaged for a period of twenty (20) consecutive trading
days at least one-hundred-five percent (105%) of the
initial price to the public of such security in such
offering; or
(iii) the date on which the Company may begin to effect any
public sale or distribution of any of the securities of
the Company following such offering;
provided, however, that this Subsection 7(c) shall not prohibit resales of
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Shares or Units by any Holder not subject to the registration requirements of
the Securities Act (including, without limitation resale of Shares pursuant to
Rule 144) and similarly exempt from any registration requirement under any state
"Blue Sky" or similar laws; provided, that the purchaser in any such private
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resale shall agree in writing to be subject to such restrictions for the
remaining portion of such period that would otherwise apply to Investor.
(d) Subject to the terms of Section 8 below, each Holder agrees that,
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following the effectiveness of any Registration Statement relating to
Registerable Shares of such Holder, such Holder will not effect any sales of the
Shares pursuant to the Registration Statement or any filings with any state
Securities Commission at any time after such Holder has received notice from the
Company to suspend sales as a result of the occurrence or existence of any
Suspension Event or so that the Company may correct or update the Registration
Statement or such filing. The Holder may recommence effecting sales of the
Shares pursuant to the Registration Statement or such filings following further
notice to such effect from the Company, which notice shall be given by the
Company not later than one (1) business day after the conclusion of any such
Suspension Event.
8. Limitations on Suspension/Blackout Periods. Notwithstanding anything
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herein to the contrary, the Company covenants and agrees that (i) the Company's
rights to suspend its obligation under this Agreement to file and maintain the
effectiveness of any Registration Statement during the pendency of any
Suspension Event, (ii) the Holders' obligation to suspend public sales of Shares
following an underwritten offering by the Company and (iii) the Holders'
obligations to suspend sales of Shares pursuant to a Registration Statement
during the pendency of any Suspension Event, shall not, in the aggregate, cause
the Holders to be required to suspend sales of Shares for longer than ninety
(90) days during any twelve (12) month period.
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9. Additional Shares. The Company, at its option, may register, under
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any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued, treasury or other
Common Shares of or owned by the Company and any of its Subsidiaries or any
Common Shares or other securities of the Company owned by any other security
holder or security holders of the Company.
10. Contribution. If the indemnification provided for in Sections 5 and
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6 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
indemnified party, on the one hand, and the indemnifying party, 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 indemnified
party, on the one hand, and of the indemnifying party, 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 indemnified party or by the indemnifying
party 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 10 exceed the amount that such indemnifying party would have
----------
been obligated to pay by way of indemnification if the indemnification provided
for under Sections 5 or 6 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 10 were determined by pro rata
---------- --- ----
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 10, 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
11. No Other Obligation to Register. Except as otherwise expressly
-------------------------------
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registerable Shares under the Securities Act.
12. Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified, or supplemented or waived without the prior written consent
of the Company and Holders holding in excess of two-thirds of the aggregate of
all Shares and Units held by Holders.
13. Notices. 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 telex or telecopier, registered or
certified mail (return receipt requested), postage prepaid or courier or
overnight delivery service to the respective parties at the following addresses
(or at such other address for any party as shall be specified by like notice,
provided that notices of a change of address shall be effective only upon
receipt thereof):
If to the Company: Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President
Telecopy: (000) 000-0000
with a copy to: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to SVI-II: Strategic Value Investors II, LLC
c/o Prudential Real Estate Investors
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: SVI-II Portfolio Manager
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx LLP
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
14
If to Prudential: The Prudential Insurance Company of America
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: SVI-II Portfolio Manager
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx LLP
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
14. Successors and Assigns/Restrictions on Transfer.
-----------------------------------------------
(a) Transfer of Shares. Except as expressly provided to the contrary
------------------
in Section 5.2 of the Purchase Agreement, the Registerable Shares shall not be
subject to any restrictions on transfer.
(b) Subsequent Holders. Subject to the foregoing restrictions, the
------------------
Company and the Holders hereby agree that any subsequent Holder of Registerable
Shares shall be entitled to all benefits hereunder as a Holder of Registerable
Shares.
(c) 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.
If any successor, assignee or transferee of any Holder shall acquire
Registerable Shares, in any manner, whether by operation of law or otherwise,
(i) such successor, assignee or transferee shall be entitled to all of the
benefits of a "Holder" under this Agreement and (ii) such Registerable Shares
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registerable Shares such Person shall be conclusively deemed to
have agreed to be bound by all of the terms and provisions hereof.
15. 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.
15
16. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed wholly within said State.
17. 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.
18. 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.
[The Remainder of This Page Has Been Intentionally Left Blank.]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BOSTON PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
STRATEGIC VALUE INVESTORS II, LLC,
a Delaware limited liability company
By: The Prudential Investment Corporation,
its attorney-in-fact
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
17
