EXHIBIT 99.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
BY AND BETWEEN
BOSTON PROPERTIES, INC.
AND THE
HOLDERS NAMED HEREIN
Date: November 3, 1998
TABLE OF CONTENTS
Page
1. Certain Definitions......................................................1
2. Lock-up Agreement........................................................3
3. Registration.............................................................4
4. State Securities Laws....................................................8
5. Expenses.................................................................9
6. Indemnification by the Company...........................................9
7. Covenants of Holders....................................................10
8. Suspension of Registration Requirement: Restriction on Sales............10
9. Black-Out Period........................................................11
10. Additional Shares.......................................................12
11. Contribution............................................................12
12. No Other Obligation to Register.........................................13
13. Amendments and Waivers..................................................13
14. Notices.................................................................13
15. Successors and Assigns..................................................14
16. Counterparts............................................................15
17. Governing Law...........................................................15
18. Severability............................................................15
19. Entire Agreement........................................................15
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
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This Registration Rights and Lock-Up Agreement (this "Agreement") is
entered into as of November 3, 1998 by and among Boston Properties, Inc., a
Delaware corporation (the "Company"), and Reservoir Place Limited Partnership
Associates, a Massachusetts limited partnership (a "Holder").
WHEREAS, concurrently herewith the Holder is receiving common units of
limited partnership interest ("Units") in Boston Properties Limited Partnership
(the "Operating Partnership"), which Units may be exchanged, at a later date or
dates and subject to certain conditions set forth in the Limited Partnership
Agreement of the Operating Partnership, for shares of common stock of the
Company, $.01 par value ("Common Shares"), in each case issued or to be issued
without registration under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to that certain Real Estate Contribution and
Exchange Agreement dated August 7, 1998, as amended (the "Contribution
Agreement"), between the Operating Partnership, the Company, the Holder and
certain other parties; and
WHEREAS, it is a condition precedent to the obligations of the Holder to
consummate the transactions described in the Contribution Agreement that the
Company provide the Holder with the registration rights set forth in Section 3
hereof.
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:
"Accredited Investor" shall mean a Person who qualifies as an
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"accredited investor" under Rule 501 of the Securities Act.
"NASD" shall mean the National Association of Securities Dealers, Inc.
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"Person" shall mean an individual, partnership, corporation, trust, or
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unincorporated organization, or a government or agency or political subdivision
thereof.
"Permitted Distributee" means a direct or indirect holder, as of the
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date hereof, of equity interests in Reservoir Place Limited Partnership
Associates, but only if such Person is listed on Schedule A hereto.
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"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" (a) when used with respect to a Holder, shall mean
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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, (ii) Shares sold pursuant to Rule 144 or (iii) Shares eligible for
sale pursuant to Rule 144(k) (or any successor provision) and (b) when used
without reference to a Holder, shall mean the Registrable Shares of all Holders.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 5 hereof, and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by a
selling Holder, the fees and disbursements of counsel representing a selling
Holder, and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a selling Holder, all of which shall be borne by such
Holder in all cases.
"Registration Statement" shall mean any registration statement of the
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Company which covers the issuance or resale of any of the Registrable Shares on
an appropriate form, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all materials
incorporated by reference therein.
"Rule 144" means Rule 144 under the Securities Act (or any successor
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provision).
"SEC" shall mean the Securities and Exchange Commission.
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"Shares" (a) when used with respect to a Holder, shall mean any Common
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Shares issuable to the 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.
2. Lock-up Agreement.
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(a) Each Holder hereby agrees that, except as set forth in Section
2(b) below, for a period of three hundred seventy five (375) days from the date
hereof (the "Lock-up Period"), without the prior written consent of the Company,
such Holder will not offer, pledge, sell, contract to sell, grant any options
for the sale of, seek the redemption or exchange of, or otherwise dispose of,
directly or indirectly (collectively "Dispose of"), any Units (the "Lock-up").
(b) The following Dispositions of Units shall not be subject to the
Lock-up set forth in Section 2(a):
(i) a Holder who is a natural person may Dispose of
Units to his or her spouse, siblings, parents or any natural or
adopted children or other descendants or to any personal trust in
which any such family member or such Holder retains the entire
beneficial interest;
(ii) a Holder may Dispose of Units to a Permitted
Distributee who has submitted to the Company a Representation Letter
in form and substance reasonably satisfactory to the Company (which
Representation Letter shall be substantially similar in form and
substance to the Representation Letter referred to in the
Contribution Agreement) and indicating that such Permitted
Distributee is an Accredited Investor;
(iii) a Holder may Dispose of Units on his or her death
to such Holder's estate, executor, administrator or personal
representative or to such Holder's beneficiaries pursuant to a
devise or bequest or by laws of descent and distribution;
(iv) a Holder may Dispose of Units as a gift or other
transfer without consideration; and
(v) subject to complying with the provisions of
Section 1.2 of the Contribution Agreement, a Holder may Dispose of
Units not pledged to the Company pursuant to the provisions of
Section 7.6 of the Contribution Agreement, pursuant to a pledge,
grant of security interest or other encumbrance effected in a bona
fide transaction with an unrelated and unaffiliated pledgee, and
provided such pledgee agrees that it will not foreclose on such
Units until after the date of expiration of the Lock-up Period;
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provided, however that in the case of any transfer of Units pursuant to clauses
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(i), (ii), (iv) and (v), the transferor shall, (A) at the request of the
Company, provide evidence satisfactory to the Company that the transfer is
exempt from the registration requirements of the Securities Act and (B) first
obtain the consent of the Company, which consent may be withheld if the Company
reasonably believes that such transfer would be in violation of, or would cause
the issuance of Units by the Operating Partnership to such transferor to be in
violation of, the registration requirements of Section 5 of the Securities Act).
In the event a Holder Disposes of Units described in this Section 2(b),
such Units shall remain subject to this Agreement and, as a condition of the
validity of such disposition, the transferee shall be required to execute and
deliver a counterpart of this Agreement (except that a pledgee shall not be
required to execute and deliver a counterpart of this Agreement until it
forecloses upon such Units). Thereafter, such transferee shall be deemed to be a
Holder for purposes of this Agreement.
3. Registration.
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(a) Filing of Resale 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 Registrable Shares of the Holders in
accordance with the terms hereof, and shall use reasonable efforts to cause such
Registration Statement to be declared effective by the SEC by that date which is
375 days after the date hereof. The Company agrees to use reasonable efforts to
keep the Registration Statement, after its date of effectiveness, continuously
effective with respect to the Registrable Shares of a particular Holder until
the earlier of (a) the date on which such Holder no longer holds any Registrable
Shares or (b) the date on which all of the Registrable Shares held by such
Holder have become eligible for sale pursuant to Rule 144(k) (or any successor
provision) (hereinafter referred to as the "Resale Shelf Registration Expiration
Date").
(b) Registration Statement Covering Issuance of Common Stock. In
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lieu of the registration rights set forth in Section 3(a) above, the Company
may, in its sole discretion, prior to the first date upon which the Units held
by the Holders may be redeemed (or such other date as may be required under
applicable provisions of the Securities Act) file a registration statement (the
"Issuance Registration Statement") under Rule 415 under the Securities Act
relating to the issuance to Holders of Common Shares upon the redemption of
Units or in exchange for Units. Thereupon, the Company shall use reasonable
efforts to cause such Registration Statement to be declared effective by the SEC
for all Common Shares covered thereby. The Company agrees to use reasonable
efforts to keep the Issuance Registration Statement continuously effective, with
respect to the Registrable Shares of a particular Holder, until the date on
which such Holder has redeemed or exchanged such Holder's Units for Common
Stock. In the event that the
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Company is unable to cause such Issuance Registration Statement to be declared
effective by the SEC or (except as otherwise permitted by Sections 8(b) and 9)
is unable to keep such Issuance Registration Statement effective until the date
on which each Holder has redeemed or exchanged such Holder's Units for Common
Stock, then the rights of each Holder set forth in Section 3 (a) above shall be
restored.
(c) Demand Registration. Subject to the conditions set forth in this
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Agreement, at any time after the Resale Shelf Registration Expiration Date, and
while any Registrable Shares are outstanding, the Company shall, at the written
request of any Holder who is unable to sell its Registrable Shares pursuant to
Rule 144(k) (or any successor provision), cause to be filed as soon as
practicable after the date of such request by such Holder a Registration
Statement under Rule 415 under the Securities Act relating to the sale by the
Holder of all of the Registrable Shares held by such Holder in accordance with
the terms hereof, and shall use reasonable efforts to cause such Registration
Statement to be declared effective by the SEC as soon as practicable thereafter.
The Company may, in its sole discretion, elect to file the Registration
Statement before receipt of notice from any Holder. The Company agrees to use
reasonable efforts to keep the Registration Statement continuously effective,
after its date of effectiveness, until the date on which such Holder no longer
holds any Registrable Shares.
(d) Piggyback Registration. If, at any time after the Resale Shelf
----------------------
Registration Expiration Date, and while any Registrable Shares or Units are
outstanding and a Registration Statement applicable to Holder under Sections
3(a), 3(b) or 3(c) is not effective, the Company (in its sole 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 Holder the opportunity to register such amount of Registrable Shares as
each Holder may request (a "Piggyback Registration"). Subject to the provisions
of Section 4 below, the Company shall include in such Piggyback Registration, in
the registration and qualification for sale under the blue sky or securities
laws of the various states and in any underwriting in connection therewith all
Registrable Shares for which the Company has received written requests for
inclusion therein within ten (10) calendar days after the notice referred to
above has been given by the Company to the Holders. Holders of Registrable
Shares shall be permitted to withdraw all or part of the Registrable Shares from
a Piggyback Registration at any time prior to the effective date of such
Piggyback Registration. If a Piggyback Registration is an underwritten primary
registration on behalf of the Company and the managing underwriter advises the
Company that the total
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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 or other commercial practicality of such offering, the Company will
include in such registration in the following priority: (i) first, all Common
Shares the Company proposes to sell, (ii) second, up to the full number of
Common Shares requested to be included in such registration by the holders
identified in that certain Registration Rights and Lock-Up Agreement dated June
23, 1997, as amended from time to time, by and among Boston Properties, Inc. and
such holders, and (iii) third, up to the full number of Common Shares requested
to be included in such registration by the Holders and any other holders of
Common Shares or of Units that may be exchanged for Common Shares who are
parties to similar Registration Rights and Lock-Up Agreements with the Company
(other than the Agreement referred to in clause (ii)), provided that, in the
case of clauses (ii) and (iii) the number of Common Shares to be included will
be based on the number of Common Shares that can be sold in the opinion of such
managing underwriter without adversely affecting the price range or probability
of success of such offering. The number of Common Shares that the managing
underwriter determines is available for purposes of clause (iii) shall be
allocated pro rata among the Holders and the other holders described in clause
(iii) on the basis of the number of Common Shares requested to be included by
them in such registration.
(e) 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 such number
of copies of the Registration Statement (including any amendments, supplements
and exhibits), the Prospectus contained therein (including each preliminary
prospectus and all related amendments and supplements) and any documents
incorporated by reference in the Registration Statement or such other documents
as such Holder may reasonably request in order to facilitate its sale of the
Registrable Shares in the manner described in the Registration Statement.
(f) Amendments and Supplements. The Company shall prepare and file
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with the SEC from time to time such amendments and supplements to the
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all the
Registrable Shares until the earlier of (a) such time as all of the Registrable
Shares have been issued or disposed of in accordance with the intended methods
of disposition by the Holder or issuance by the Company as set forth in the
Registration Statement or (b) the date on which the Registration Statement
ceases to be effective in accordance with the terms of this Section 3. Upon
twenty (20) business days' notice, the Company shall file any supplement or
post-effective amendment to the Registration Statement with respect to the plan
of distribution or such Holder's ownership interests in Registrable Shares that
is reasonably necessary to permit the sale of the Holder's Registrable Shares
pursuant to the Registration Statement. The Company shall file any necessary
listing applications or amendments to the existing applications to cause
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the Shares registered under any Registration Statement to be then listed or
quoted on the primary exchange or quotation system on which the Common Shares
are then listed or quoted.
(g) Notice of Certain Events. The Company shall promptly notify each
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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 Statement and the effectiveness of any
post-effective amendment.
At any time when a Prospectus relating to the Registration Statement is
required to be delivered under the Securities Act by a Holder to a transferee,
the Company shall immediately notify each Holder of the happening of any event
as a result of which the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. In such event, the Company shall promptly prepare and furnish to
each applicable Holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of Registrable Shares, such Prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Company will, if necessary, amend the Registration Statement of which such
Prospectus is a part to reflect such amendment or supplement.
4. State Securities Laws.
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Subject to the conditions set forth in this Agreement, the Company
shall, in connection with the filing of any Registration Statement hereunder,
file such documents as may be necessary to register or qualify the Registrable
Shares under the securities or "Blue Sky" laws of such states as any Holder may
reasonably request, and the Company shall use its best efforts to cause such
filings to become effective; provided, however, that the Company shall not be
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obligated to qualify as a foreign corporation to do business under the laws of
any such state in which it is not then qualified or to file any general consent
to service of process in any such state. Once effective, the Company shall use
its best efforts to keep such filings effective until the earlier of (a) such
time as all of the Registrable Shares have been disposed of in accordance with
the intended methods of disposition by the Holder as set forth in the
Registration Statement, (b) in the case of a particular state, a Holder has
notified the Company that it no longer requires an effective filing in such
state in accordance with its original request for filing or (c) the date on
which the Registration Statement ceases to be effective.
5. Expenses.
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The Company shall bear all Registration Expenses incurred in connection
with the registration of the Registrable Shares pursuant to this Agreement,
except that each Holder shall be responsible for any brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable Shares
sold by it and for any legal, accounting and other expenses incurred by it.
6. Indemnification by the Company.
------------------------------
The Company agrees to indemnify each of the Holders and their respective
officers, directors, employees, agents, representatives 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 in connection with any Registration
Statement or Prospectus, or upon any untrue or alleged untrue statement of
material fact contained in the Registration Statement or any Prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, that the
Company shall not be liable to such Indemnitee or any person who participates as
an underwriter in the offering or sale of Registrable Shares or any other
person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (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 for use in connection with the Registration
Statement or the Prospectus contained therein by such Indemnitee 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.
7. Covenants of Holders.
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Each of the Holders hereby agrees (a) to cooperate with the Company and
to furnish to the Company all such information concerning its plan of
distribution and ownership interests with respect to its Registrable Shares in
connection with the preparation of a Registration Statement with respect to such
Holder's Registrable Shares and any filings
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with any state securities commissions as the Company may reasonably request, (b)
to deliver or cause delivery of the Prospectus contained in such Registration
Statement (other than an Issuance Registration Statement) to any purchaser of
the shares covered by such Registration Statement from the Holder and (c) to
indemnify the Company, its officers, directors, employees, agents,
representatives and affiliates, and each person, if any, who controls the
Company within the meaning of the Securities Act, and each other person, if any,
subject to liability because of his connection with the Company, against any and
all losses, claims, damages, actions, liabilities, costs and expenses 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 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 by the Holder for use therein unless such statement or omission was
corrected in writing to the Company not less than three (3) business days prior
to the date of the final prospectus (as supplemented or amended, as the case may
be) or (ii) the failure by the Holder to deliver or cause to be delivered the
Prospectus contained in such Registration Statement (as amended or supplemented
if applicable) furnished by the Company to the Holder to any purchaser of the
shares covered by such Registration Statement from the Holder through no fault
of the Company. The liability of the Holders under the preceding indemnity shall
be several and not joint.
8. 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
Registrable 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.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a Registration Statement shall be suspended
in the event and during such period as unforeseen circumstances exist (including
without limitation (i) an underwritten primary offering by the Company if the
Company is advised by the underwriters that the sale of Registrable Shares under
the Registration Statement would impair the pricing or commercial practicality
of the primary offering or (ii) pending negotiations relating to, or
consummation of, a transaction or the occurrence of an event that would require
additional disclosure of material information by the Company in the Registration
Statement or such filing, as to which the Company has a bona fide business
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purpose for preserving confidentiality or which renders the Company unable to
comply with SEC requirements) (such unforeseen circumstances being hereinafter
referred to as a "Suspension Event") that would make it impractical or
unadvisable to cause the Registration Statement or such filings to become
effective or to amend or supplement the Registration Statement, but such
suspension shall continue only for so long as such event or its effect is
continuing. The Company shall notify the Holders of the existence and, in the
case of circumstances referred to in clause (i) of this Section 8(b), nature of
any Suspension Event.
(c) Each Holder of Registrable Shares agrees, if requested by the
Company in the case of a Company-initiated non-underwritten offering, or if
requested by the managing underwriter or underwriters in a Company-initiated
underwritten offering, not to effect any public sale or distribution of any of
the securities of the Company, including a sale pursuant to Rule 144, during the
15-day period prior to, and during the 60-day period beginning on, the date of
effectiveness of the registration statement relating to such Company-initiated
offering.
9. Black-Out Period.
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Each Holder agrees that, following the effectiveness of any Registration
Statement (except an Issuance Registration Statement) relating to Registrable
Shares of such Holder, such Holder will not effect any sales of the Registrable
Shares pursuant to the Registration Statement or any filings with any state
Securities Commission at any time after such Holder has received notice from the
Company to suspend sales as a result of the occurrence or existence of any
Suspension Event or so that the Company may correct or update the Registration
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 five (5) business days after the conclusion of any such
Suspension Event.
10. Additional Shares.
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The Company, at its option, may register, under any Registration
Statement and any filings with any state securities commissions filed pursuant
to this Agreement, any number of unissued Common Shares of the Company or any
Common Shares of the Company owned by any other shareholder or shareholders of
the Company.
11. Contribution.
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If the indemnification provided for in Sections 6 and 7 is unavailable
to an indemnified party with respect to any losses, claims, damages, actions,
liabilities, costs or expenses referred to therein or is insufficient to hold
the indemnified party harmless as contemplated therein, then the indemnifying
party, in lieu of indemnifying such
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indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, actions,
liabilities, costs or expenses in such proportion as is appropriate to reflect
the relative fault of the Company, on the one hand, and the Indemnitee, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, actions, liabilities, costs or expenses as well as
any other relevant equitable considerations. The relative fault of the Company,
on the one hand, and of the Indemnitee, on the other hand, shall be determined
by reference to, among other factors, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates to
information supplied by the Company or by the Indemnitee and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that in no event shall
the obligation of any indemnifying party to contribute under this Section 11
exceed the amount that such indemnifying party would have been obligated to pay
by way of indemnification if the indemnification provided for under Sections 6
or 7 hereof had been available under the circumstances.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 11 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 11, 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.
12. No Other Obligation to Register.
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Except as otherwise expressly provided in this Agreement, the Company
shall have no obligation to the Holders to register the Registrable Shares under
the Securities Act.
13. Amendments and Waivers.
----------------------
The provisions of this Agreement may not be amended, modified, or
supplemented or waived without the prior written consent of the Company and
Holders holding in excess of two-thirds of the aggregate of all Shares and Units
held by Holders.
14. Notices.
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Except as set forth below, all notices and other communications provided
for or permitted hereunder shall be in writing and shall be deemed to have been
duly given if
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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), and further provided that in case of directions to amend the
Registration Statement pursuant to Section 3(g) or Section 7, a Holder must
confirm such notice in writing by overnight express delivery with confirmation
of receipt:
-13-
If to the Company: Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Senior
Vice President
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, P.C.
Telecopy: (000) 000-0000
and with a copy to: Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Van, Esq.
Telecopy: (000) 000-0000
If to the Holder: Reservoir Place Limited Partnership Associates
c/o Xxxxxx Xxxxxx & Co., LLC
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx & Xxxxx PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 8 and 9 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. Successors and Assigns.
----------------------
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement may not be
assigned by any Holder and any attempted assignment hereof by any Holder will be
void and of no effect and shall terminate all obligations of the Company
hereunder; provided, that any Holder may assign
-14-
its rights hereunder to any person to whom such Holder may Dispose of Units
pursuant to Section 2(b) hereof, including any pledgee described in clause (v)
of Section 2(b).
16. Counterparts.
------------
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
17. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts made and to be performed
wholly within said State.
18. Severability.
------------
In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
19. Entire Agreement.
----------------
This Agreement is intended by the parties as a final expression of
their agreement and intended to be the complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
such subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BOSTON PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
RESERVOIR PLACE LIMITED
PARTNERSHIP ASSOCIATES
By: DT Real Estate, Inc., a
Massachusetts corporation, its
sole General Partner
By: /s/ Xxxxxx Xxxxxx, President
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: President and Treasurer
SCHEDULE A
Permitted Distributees
DT Real Estate, Inc.
c/o Xxxxxx Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Tofias Family General Partnership
c/o Xxxxxx Xxxxxx & Co., LLC
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Medfield Industrial Park Limited Partnership
x/x Xxxxxx Xxxxxx & Xxxxxxx, X.X.X.
Shovel Xxxx Xxxxxx
X.X. Xxx 000
Xxxxx Xxxxxx, XX 00000
ABT Real Estate Limited Partnership
x/x Xxxxxx Xxxxxx & Xxxxxxx, X.X.X.
Shovel Xxxx Xxxxxx
X.X. Xxx 000
Xxxxx Xxxxxx, XX 00000
Xxxxxx Xxxxxx and Xxxxx X. Xxxxxx
c/o Xxxxxx Xxxxxx & Co., LLC
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
RESERVOIR PLACE
FIRST AMENDMENT TO REGISTRATION
RIGHTS AND LOCK-UP AGREEMENT
This First Amendment is made as of November 24, 1998 by Boston
Properties, Inc., a Delaware corporation (the "Company"), and each of the
undersigned Permitted Distributees desiring to become parties to that certain
Registration Rights and Lock-Up Agreement entered into on November 3, 1998 (the
"Registration Rights Agreement") by the Company and Reservoir Place Limited
Partnership Associates, a Massachusetts limited partnership, as the "Holder"
named therein, in connection with the contribution and conveyance of property to
Boston Properties Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), pursuant to that certain Real Estate Contribution and
Exchange Agreement dated August 7, 1998, as amended (the "Contribution
Agreement"), between the Operating Partnership and the Holder named in the
Registration Rights Agreement. All capitalized terms used herein and not defined
shall have the respective meanings ascribed to such terms in the Registration
Rights Agreement.
WHEREAS, concurrently herewith, each of the undersigned are being
admitted as Additional Limited Partners (as such terminology is defined in the
Operating Partnership) in connection with the receipt by each of the undersigned
of certain Units of the Operating Partnership being distributed concurrently
herewith to the undersigned as Permitted Distributees under the Registration
Rights Agreement; and
WHEREAS, the undersigned desire to obtain the Company's consent to
each of the undersigned becoming parties to the Registration Rights of
Agreement;
NOW, THEREFORE, in consideration of each of the undersigned being
admitted as Additional Limited Partners to the Operating Partnership, and the
mutual agreements set forth in the Registration Rights Agreement to which the
undersigned are becoming parties, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. With respect to any Units held by the undersigned which were
originally issued pursuant to the Contribution Agreement, each of the
undersigned, by executing and delivering this First Amendment to the
Registration Rights Agreement, hereby agrees with the Company to be bound by all
of the terms and conditions of the Registration Rights Agreement applicable to a
Holder of Units thereunder, including, without limitation, those provisions and
conditions set forth in Section 2 of the Registration Rights Agreement.
2. In consideration of the agreements herein made by each of the
undersigned, the Company hereby consents to the distribution by the Holder
originally
named in the Registration Rights Agreement of certain of such Units to the
undersigned, and the Company agrees that the provisions of the Registration
Rights Agreement shall from and after the date hereof inure to the benefit of
each of the undersigned as a Holder.
3. This First Amendment may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to the Registration Rights Agreement as of the date first above
written.
TOFIAS FAMILY GENERAL PARTNERSHIP, a
Massachusetts general partnership
By: /s/ Xxxxxx Xxxxxx, Partner
---------------------------
Xxxxxx Xxxxxx, Partner
DT REAL ESTATE, INC., a Massachusetts
corporation
By: /s/ Xxxxxx Xxxxxx, President
-----------------------------
Name: Xxxxxx Xxxxxx
Title: President
MEDFIELD INDUSTRIAL PARK LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: ABT Inc., a Massachusetts
corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
ABT REAL ESTATE LIMITED PARTNERSHIP,
Massachusetts limited partnership
By: ABT Inc., a Massachusetts
corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
BOSTON PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
