1
EXHIBIT 4.13
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made
and entered into as of February 13, 1998 between EQUITY OFFICE PROPERTIES TRUST,
a Maryland real estate investment trust (the "COMPANY") and XXXXXX BROTHERS INC.
(the "INITIAL PURCHASER").
This Agreement is made pursuant to the Purchase Agreement,
dated February 13, 1998 (the "PURCHASE AGREEMENT"), between the Company, as
issuer of the 5.25% Preferred Income Equity Redeemable Shares designated by the
Company as the 5.25% Series B Convertible, Cumulative Preferred Shares of
Beneficial Interest, $.01 par value per share, liquidation preference $50.00 per
share (the "Preferred Securities"), and the Initial Purchaser, which provides
for, among other things, the sale by the Company to the Initial Purchaser of the
aggregate liquidation preference of the Preferred Securities. In order to induce
the Initial Purchaser to enter into the Purchase Agreement, the Company has
agreed to provide to the Initial Purchaser and its direct and indirect
transferees the registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"ADVICE" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"AFFILIATE" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, or a day
on which banking institutions in New York, New York or Boston, Massachusetts are
authorized or required by law or executive order to remain closed.
2
"COMMON SHARES" means the common shares of beneficial interest of the
Company, par value $0.01 per share, initially issuable upon conversion or
redemption of the Preferred Securities.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"CLOSING TIME" shall mean the Closing Time as defined in the Purchase
Agreement.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section 2(a)
hereof.
"ELIGIBILITY DATE" shall mean the date of the first anniversary of the
Company's initial public offering of its common stock.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"HOLDER" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble to
this Agreement.
"INSPECTORS" shall have the meaning set forth in Section 3(m) hereof.
"ISSUE DATE" shall mean February 19, 1998, the date of original
issuance of the Preferred Securities.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 2(d)
hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate liquidation preference of outstanding Preferred Securities.
2
3
"OPERATING PARTNERSHIP" shall mean EOP Operating Limited Partnership, a
Delaware limited partnership.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and, in each case, including all documents incorporated by reference
therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"RECORDS" shall have the meaning set forth in Section 3(m) hereof.
"REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED, HOWEVER,
that Securities shall cease to be Registrable Securities when the earlier of the
following occurs (i) a Shelf Registration Statement with respect to such
Securities for the resale thereof shall have been declared effective under the
Securities Act and such Securities shall have been disposed of pursuant to such
Shelf Registration Statement, (ii) such Securities shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k) or (iii) such Securities shall have
ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is
3
4
required to be retained by any Holder of Registrable Securities in accordance
with the rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for all underwriters or Holders
as a group in connection with blue sky qualification of any of the Registrable
Securities) 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 Shelf Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for the
Company and of the independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by or incident to
the performance of and compliance with this Agreement, and (vi) the reasonable
fees and expenses of any special experts retained by the Company in connection
with the Shelf Registration Statement.
"RULE 144(k) PERIOD" shall mean the period of two years (or such
shorter period as may hereafter be referred to in Rule 144(k) under the
Securities Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES" shall mean the Preferred Securities and the common shares.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(a) hereof which
covers all of the Registrable Securities on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments
4
5
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) SHELF REGISTRATION. The Company shall file or cause
to be filed, on or prior to August 10, 1998, a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Securities, and
shall use its reasonable best efforts to have such Shelf Registration Statement
declared effective by the SEC as promptly as practicable after filing thereof,
but in any event within 90 days after the Eligibility Date. No Holder of
Registrable Securities shall be entitled to include any of its Registrable
Securities in any Shelf Registration pursuant to this Agreement unless and until
such Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder and furnishes to the Company in writing,
within 15 days after receipt of a request therefor, such information as the
Company may, after conferring with counsel with regard to information relating
to Holders that would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably request for
inclusion in any Shelf Registration Statement or Prospectus included therein.
Each Holder as to which any Shelf Registration is being effected agrees to
furnish to the Company all information with respect to such Holder necessary to
make the information previously furnished to the Company by such Holder not
materially misleading.
The Company agrees to use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective and the Prospectus
usable for resales for the Rule 144(k) Period (subject to extension pursuant to
the last paragraph of Section 3 hereof), or for such shorter period which will
terminate when all of the Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease to be
Registrable Securities (the "EFFECTIVENESS PERIOD"); provided, however, that for
75 days or less (whether or not consecutive) in any twelve-month period, the
Company shall be permitted to suspend sales of Securities if the Shelf
Registration Statement is no longer effective or the Prospectus usable for
resales due to circumstances relating to pending developments, public filings
with
5
6
the SEC and similar events, or because the Prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make statements therein not misleading.
The Company shall not permit any securities other than (i) the Company's issued
and outstanding securities currently possessing incidental registration rights
and (ii) Registrable Securities to be included in the Shelf Registration. The
Company will, in the event a Shelf Registration Statement is declared effective,
provide to each Holder a reasonable number of copies of the Prospectus which is
a part of the Shelf Registration Statement, notify each such Holder when the
Shelf Registration Statement has become effective and take such other actions as
are required to permit unrestricted resales of the Registrable Securities. The
Company further agrees to supplement or amend the Shelf Registration Statement
if and as required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder for shelf
registrations, and the Company agrees to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(b) LISTING. The Company shall use its reasonable best efforts
to cause the Securities to be approved for listing on the New York Stock
Exchange as promptly as practicable, but in any event, within 90 days after the
Eligibility Date.
(c) EXPENSES. The Company, as issuer of the Securities, shall
pay all Registration Expenses in connection with any Shelf Registration
Statement filed pursuant to Section 2(a) hereof and will reimburse the Initial
Purchaser for the reasonable fees and disbursements of Xxxxx & Wood LLP, counsel
for the Initial Purchaser, incurred in connection with the private offering of
the Securities, and either Xxxxx & Xxxx LLP or any other single counsel
designated in writing by the Majority Holders to act as counsel for the Holders
of the Registrable Securities in connection with a Shelf Registration Statement,
which other counsel shall be reasonably satisfactory to the Company. Except as
provided herein, each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
6
7
(d) EFFECTIVE SHELF REGISTRATION STATEMENT. A Shelf
Registration Statement will not be deemed to have become effective unless it has
been declared effective by the SEC; PROVIDED, HOWEVER, that if, after it has
been declared effective, the offering of Registrable Securities pursuant to such
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Shelf Registration Statement will be deemed not to have been effective
during the period of such interference, until the offering of Registrable
Securities pursuant to such Shelf Registration Statement may legally resume. The
Company will be deemed not to have used its reasonable best efforts to cause a
Shelf Registration Statement to become, or to remain, effective during the
requisite period if it voluntarily takes any action that would result in any
such Shelf Registration Statement not being declared effective or that would
result in the Holders of Registrable Securities covered thereby not being able
to offer and sell such Registrable Securities during that period, unless such
action is required by applicable law.
(e) LIQUIDATED DAMAGES. In the event that:
(i) a Shelf Registration Statement is not filed
with the SEC on or prior to August 10, 1998, then, with respect to the first
quarter immediately following such date, liquidated damages ("Liquidated
Damages") shall accumulate on the liquidation preference of the Preferred
Securities at a rate of 0.25% per annum, and with respect to the second quarter
thereafter and all subsequent quarters following such date, at a rate equal to
0.50% per annum;
(ii) a Shelf Registration Statement is not
declared effective by the SEC on or prior to the 90th day after the Eligibility
Date, then, with respect to the first quarter immediately following such date,
Liquidated Damages shall accumulate on the liquidation preference of the
Preferred Securities at a rate of 0.25% per annum, and with respect to the
second quarter thereafter and all subsequent quarters following such date, at a
rate equal to 0.50% per annum;
(iii) a Shelf Registration Statement has been
declared effective and such Shelf Registration Statement ceases to be effective
or the Prospectus usable for resales (A) at any time
7
8
prior to the expiration of the Effectiveness Period and (B) if related to
corporate developments, public filings with the SEC or similar events or to
correct a material misstatement or omission in the Prospectus contained in the
Shelf Registration Statement, for more than 75 days (whether or not consecutive)
in any twelve-month period, then, with respect to the first quarter immediately
following the day or 76th day, as the case may be, such Shelf Registration
Statement ceases to be effective or the Prospectus usable for resales,
Liquidated Damages shall accumulate on the liquidation preference of the
Preferred Securities at a rate of 0.25% per annum, and with respect to the
second quarter thereafter and all subsequent quarters following such day, at a
rate equal to 0.50% per annum; or
(iv) if the Securities are not approved for
listing on the New York Stock Exchange on or prior to the 90th day after the
Eligibility Date, then, with respect to the first quarter immediately following
such date, Liquidated Damages shall accumulate on the liquidation preference of
the Preferred Securities at a rate of 0.25% per annum, and with respect to the
second quarter thereafter and all subsequent quarters following such date, at a
rate equal to 0.50% per annum;
PROVIDED, HOWEVER, that the Liquidated Damages rate on the liquidation
preference of the Preferred Securities may not exceed in the aggregate 0.50% per
annum; PROVIDED, FURTHER, HOWEVER, that (1) upon the filing of a Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of a Shelf Registration Statement (in the case of clause (ii)
above), (3) upon such time as the Shelf Registration Statement which had ceased
to remain effective or the Prospectus usable for resales again becomes effective
and usable for resales (in the case of clause (iii) above), or (4) upon such
time as the Securities are approved for listing on the New York Stock Exchange,
Liquidated Damages on the liquidation preference of the Preferred Securities as
a result thereof shall cease to accumulate.
Any amounts of Liquidated Damages due pursuant to Section 2(d)(i),
(ii), (iii) or (iv) above will be payable in cash on the next succeeding
February 15, May 15, August 15 and November 15, as the case may be, to Holders
on the relevant record dates for the payment of dividends.
8
9
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies
available to the Holders, the Company acknowledges that any failure by it to
comply with its obligations under Section 2(a) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations under Section 2(a)
hereof.
3. REGISTRATION PROCEDURES. In connection with the obligations of the
Company with respect to the Shelf Registration Statement pursuant to Section
2(a) hereof, the Company shall use its best efforts to:
(a) prepare and file with the SEC a Shelf Registration Statement as
prescribed by Section 2(a) hereof within the relevant time period specified in
Section 2(a) hereof on the appropriate form under the Securities Act, which form
shall (i) be selected by the Company, (ii) be available for the sale of the
Registrable Securities by the selling Holders thereof, and (iii) comply as to
form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith; the
Company shall use its reasonable best efforts to cause such Shelf Registration
Statement to become effective and remain effective and the Prospectus usable for
resales in accordance with Section 2 hereof; PROVIDED, HOWEVER, that, before
filing any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders of the
Registrable Securities covered by such Shelf Registration Statement, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed; and the Company shall not file any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of such
document if the Majority Holders, their counsel or the managing underwriters, if
any, shall reasonably object in a timely manner;
9
10
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement effective for the
Effectiveness Period, subject to the proviso contained in the second
paragraph in Section 2(a), and cause each Prospectus to be
supplemented, if so determined by the Company or requested by the SEC,
by any required prospectus supplement and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in force)
under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition
of all securities covered by a Shelf Registration Statement during the
Effectiveness Period in accordance with the intended method or methods
of distribution by the selling Holders thereof described in this
Agreement;
(c) (i) notify each Holder of Registrable Securities included
in the Shelf Registration Statement, at least three Business Days prior
to filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holder that the
distribution of Registrable Securities will be made in accordance with
the method selected by the Majority Holders, (ii) furnish to each
Holder of Registrable Securities included in the Shelf Registration
Statement and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary prospectus, and any amendment or
supplement thereto, and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Securities and (iii)
consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities
included in the Shelf Registration Statement in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(d) register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by
the time the applicable Shelf Registration Statement is declared
effective by the SEC as any Holder of
10
11
Registrable Securities covered by a Shelf Registration Statement and
each underwriter of an underwritten offering of Registrable Securities
shall reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and underwriter
to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; PROVIDED, HOWEVER, that
the Company shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d),
(ii) file any general consent to service of process in any jurisdiction
where it would not otherwise be subject to such service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not
then so subject;
(e) promptly notify each Holder of Registrable Securities,
their counsel and the managing underwriters, if any, and promptly
confirm such notice in writing (i) when a Shelf Registration Statement
has become effective and when any post-effective amendments thereto
become effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Shelf
Registration Statement or Prospectus or for additional information
after the Shelf Registration Statement has become effective, (iii) of
the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Shelf Registration Statement or
the qualification of the Registrable Securities in any jurisdiction
described in Section 3(d) hereof or the initiation of any proceedings
for that purpose, (iv) if, between the effective date of a Shelf
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any purchase agreement, securities sales agreement
or other similar agreement cease to be true and correct in all material
respects, (v) of the happening of any event or the failure of any event
to occur or the discovery of any facts, during the Effectiveness
Period, which makes any statement made in a Shelf Registration
Statement or the related Prospectus untrue in any material respect or
which causes such Shelf Registration Statement or Prospectus to omit to
state a material fact necessary in order to make the state-
11
12
ments therein, in the light of the circumstances under which they were
made, not misleading, and (vi) of the reasonable determination of the
Company that a post-effective amendment to the Shelf Registration
Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement at the
earliest possible moment;
(g) furnish to each Holder of Registrable Securities included
within the coverage of a Shelf Registration Statement, without charge,
at least one conformed copy of the Shelf Registration Statement
relating to such Shelf Registration and any post-effective amendment
thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and registered in such names as the
selling Holders or the underwriters may reasonably request at least two
Business Days prior to the closing of any sale of Registrable
Securities pursuant to the Shelf Registration Statement;
(i) promptly after the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 75 day grace period
within any twelve-month period) or 3(e)(vi) hereof, prepare a
supplement or post-effective amendment to the Shelf Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities,
such Prospectus will not include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and the Company shall notify each Holder to suspend use
of the Prospectus as promptly as practicable after the occurrence of
such an event, and each Holder hereby agrees to suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus
to correct such misstatement or omission;
12
13
(j) a reasonable time prior to the filing of any document
which is to be incorporated by reference into a Shelf Registration
Statement or a Prospectus after the initial filing of a Shelf
Registration Statement, provide a reasonable number of copies of such
document to the Holders and make such of the representatives of the
Company as shall be reasonably requested by the Holders of Registrable
Securities or the Initial Purchaser on behalf of such Holders available
for discussion of such document;
(k) enter into such agreements (including underwriting
agreements) as are customary in underwritten offerings and take all
such other appropriate actions in connection therewith as are
reasonably requested by the Holders of at least 25% in aggregate
liquidation preference of the Registrable Securities in order to
expedite or facilitate the registration or the disposition of the
Registrable Securities;
(l) whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, if
requested by (x) the Initial Purchaser, in the case where the Initial
Purchaser holds Securities acquired by it as part of its initial
placement and (y) Holders of at least 25% in aggregate liquidation
preference of the Registrable Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business
of the Company and its subsidiaries as then conducted and with respect
to the Shelf Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company and updates thereof
(which may be in the form of a reliance letter) in form and substance
reasonably satisfactory to the managing underwriters (if any) and the
Holders of a majority in aggregate liquidation preference of the
Registrable Securities being sold, addressed to each selling Holder and
the underwriters (if any) covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such underwriters (it being agreed that
the matters to be covered by such opinion may be
13
14
subject to customary qualifications and exceptions); (iii) obtain "cold
comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any business acquired
by the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such
other matters as reasonably requested by such underwriters in
accordance with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate liquidation preference
of Registrable Securities covered by such Shelf Registration Statement
and the managing underwriters) customary for such agreements with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders);
and in the case of an underwritten registration, the above requirements
shall be satisfied at each closing under the related underwriting
agreement or as and to the extent required thereunder;
(m) make reasonably available for inspection by any selling
Holder of Registrable Securities who certifies to the Company that it
has a current intention to sell Registrable Securities pursuant to the
Shelf Registration, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or
underwriter (collectively, the "INSPECTORS"), at the offices where
normally kept, during the Company's normal business hours, all
financial and other records, pertinent organizational and operational
documents and properties of the Company and its subsidiaries
(collectively, the "RECORDS") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, trustees and employees of the Company and its
subsidiaries to supply all
14
15
relevant information in each case reasonably requested by any such
Inspector in connection with such Shelf Registration Statement; records
and information which the Company, in good faith, to be confidential
and any Records and information which it notifies the Inspectors are
confidential shall not be disclosed to any Inspector except where (i)
the disclosure of such Records or information is necessary to avoid or
correct a material misstatement or omission in such Shelf Registration
Statement, (ii) the release of such Records or information is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) such Records or information previously has been
made generally available to the public; each selling Holder of such
Registrable Securities will be required to agree in writing that
Records and information obtained by it as a result of such inspections
shall be deemed confidential and shall not be used by it as the basis
for any market transactions in the securities of the Company unless and
until such is made generally available to the public through no fault
of an Inspector or a selling Holder; and each selling Holder of such
Registrable Securities will be required to further agree in writing
that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the
Company and allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records and information deemed
confidential;
(n) comply with all applicable rules and regulations of the
SEC so long as any provision of this Agreement shall be applicable and
make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any twelve-month
period (or 90 days after the end of any twelve-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day
of the first fiscal quarter of the Company after the effective date of
a Shelf Registration
15
16
Statement, which statements shall cover said twelve-month periods,
provided that the obligations under this Section 3(n) shall be
satisfied by the timely filing of quarterly and annual reports on Forms
10-Q and 10-K under the Exchange Act;
(o) cooperate with each seller of Registrable Securities
covered by a Shelf Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD;
(p) take all other steps necessary to effect the registration
of the Registrable Securities covered by a Shelf Registration Statement
contemplated hereby; and
(q) the Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish to
it such information regarding such seller as may be required by the
staff of the SEC to be included in a Shelf Registration Statement; the
Company may exclude from such registration the Registrable Securities
of any seller who unreasonably fails to furnish such information within
a reasonable time after receiving such request; and the Company shall
have no obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information.
Each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to a Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"ADVICE") by the Company that the use of the applicable Prospectus may be
resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in such Holder's possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement, the Company
shall use
16
17
its reasonable best efforts to file and have declared effective (if an
amendment) as soon as practicable after the resolution of the related matters an
amendment or supplement to the Shelf Registration Statement and related
Prospectus and shall extend the period during which such Shelf Registration
Statement is required to be main-tained effective and the Prospectus usable for
resales pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date when
the Company shall have made available to the Holders (x) copies of the
supplemented or amended Prospectus necessary to resume such dispositions or (y)
the Advice.
4. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the Operating
Partnership, jointly and severably, hereby agrees to indemnify and hold harmless
the Initial Purchaser, each Holder, each underwriter who participates in an
offering of the Registrable Securities, each Person, if any, who controls any of
such parties within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act and each of their respective directors, officers,
employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in a Shelf
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact required to be stated therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 4(d) hereof) such settlement is effected with
the prior written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel
17
18
chosen by the Initial Purchaser or such Holder), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subpara-graph (i) or (ii) of this Section 4(a);
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by the
Initial Purchaser or such Holder or underwriter for use in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(b) The Initial Purchaser and each Holder or underwriter
agrees, severally and not jointly, to indemnify and hold harmless the Company,
its trustees and officers (including each officer of the Company who signed the
Shelf Registration Statement), and the Operating Partnership and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity contained in
Section 4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use in such
Shelf Registration Statement (or any amendment thereto) or such Prospectus (or
any amendment or supplement thereto); PROVIDED, HOWEVER, that no Holder shall be
liable for any claims hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Registrable Securities.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may
18
19
have under this Section 4 to the extent that it is not materially prejudiced by
such failure as a result thereof, and in any event shall not relieve it from
liability which it may have otherwise on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 4(a) or (b) above, counsel
to the indemnified parties shall be selected by such parties. An indemnifying
party may participate at its own expense in the defense of such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for the fees and expenses
of more than one counsel (in addition to local counsel), separate from their own
counsel, for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional written
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) 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.
(d) If at any time an indemnified party shall have validly
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
19
20
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement set forth in this Section 4 is
for any reason held to be unenforceable by an indemnified party although
applicable in accordance with its terms, the Company and the Operating
Partnership, on the one hand, and the Holders, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company, the
Operating Partnership and the Holders, as incurred; PROVIDED, HOWEVER, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the Company and
the Operating Partnership, on the one hand, and the Holders, on the other hand,
such parties shall contribute to such aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement in
such proportion as shall be appropriate to reflect the relative fault of the
Company and the Operating Partnership, on the one hand, and the Holders, on the
other hand, with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect thereof, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Operating Partnership, on the one hand, and of the Holders, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Operating Partnership, on the one hand, or by or on behalf of the
Holders, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer and employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each trustee
and officer of the Company and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section
20
21
20 of the Exchange Act shall have the same rights to contribution as the Company
and the Operating Partnership.
5. PARTICIPATION IN AN UNDERWRITTEN REGISTRATION. No
Holder may participate in an underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in the underwriting arrangement approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the
terms of such underwriting arrangements.
6. SELECTION OF UNDERWRITERS. The Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so may
sell the Securities covered by such Shelf Registration in an underwritten
offering, subject to the provisions of Section 3(l) hereof. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate liquidation preference of the Registrable Securities included in
such offering; PROVIDED, HOWEVER, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. MISCELLANEOUS.
(a) RULE 144 AND RULE 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the Exchange Act
and any Registrable Securities remain outstanding, the Company will file the
reports required to be filed by it under the Securities Act and Section 13(a) or
15(d) of the Exchange Act and the rules and regulations adopted by the SEC
thereunder; PROVIDED, HOWEVER, that if the Company ceases to be so required to
file such reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales of its securities pursuant to Rule 144 under the Securities Act,
(b) deliver such information to a prospective purchaser as is necessary to
permit sales of its securities pursuant to Rule 144A under the Securities Act,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration
21
22
under the Securities Act within the limitation of the exemptions provided by (i)
Rule 144 under the Securities Act, as such rule may be amended from time to
time, (ii) Rule 144A under the Securities Act, as such rule may be amended from
time to time, or (iii) any similar rules or regulations hereafter adopted by the
SEC. Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
(b) NO INCONSISTENT AGREEMENTS. The Company has not entered
into, and will not enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority in aggregate liquidation preference of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure; PROVIDED that no amendment, modification or supplement or waiver or
consent to the departure with respect to the provisions of Section 4 hereof
shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Securities, by written
agreement signed by the Company, the Operating Partnership and the Initial
Purchaser, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company, the Operating Partnership and the
Initial Purchaser to the extent that any such amendment, modification,
supplement, waiver or consent is, in their
22
23
reasonable judgment, necessary or appropriate to comply with applicable law
(including any interpretation of the Staff of the SEC) or any change therein and
(iii) to the extent any provision of this Agreement relates to the Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by the Initial Purchaser, the Operating Partnership and the
Company.
(d) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Initial Purchaser,
the address set forth in the Purchase Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED, HOWEVER, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
amended charter of the Company. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform
23
24
all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof.
(f) THIRD PARTY BENEFICIARIES. Each Holder shall be a third
party beneficiary of the agreements made hereunder among the Company, the
Operating Partnership and the Initial Purchaser, and the Initial Purchaser shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) 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.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY,
IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the
24
25
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
25
26
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
EQUITY OFFICE PROPERTIES TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Legal Counsel
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust
its Managing General Partner
solely with respect to Section 4
hereof
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Legal Counsel
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXX BROTHERS INC.
By: Xxxxxx Xxxxxx
---------------------------------
Authorized Signatory
