Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
BOSTON PROPERTIES, INC., BOSTON PROPERTIES LIMITED PARTNERSHIP
AND THE
HOLDERS NAMED HEREIN
July 8, 2002
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as of
July 8, 2002 by and among Boston Properties, Inc., a Delaware corporation (the
"Company"), Boston Properties Limited Partnership, a Delaware limited
partnership (the "Partnership"), and the Persons whose names are set forth on
Schedule A hereto (each a "Holder" and, collectively, the "Holders").
WHEREAS, certain of the Holders converted as of July 8, 2002 their Series
Two preferred units of limited partnership interest of the Partnership ("Series
Two Holders") or their Series Three preferred units of limited partnership
interest of the Partnership ("Series Three Holders" and, together with the
Series Two Holders, the "Preferred Unit Holders") into common units (the "Common
Units") of limited partnership interest of the Partnership;
WHEREAS, certain of the Holders converted as of July 8, 2002 their shares
of Series A Convertible Redeemable preferred stock of the Company (the "Series A
Holders") into shares of the Company's common stock, par value $.01 per share
("Common Shares");
WHEREAS, the Preferred Unit Holders presented their Common Units to the
Partnership for redemption and the Company as of July 8, 2002, as the general
partner of the Partnership and in accordance with the terms of the Second
Amended and Restated Agreement of Limited Partnership of the Partnership (as
amended, the "Limited Partnership Agreement"), acquired the Common Units for
Common Shares; and
WHEREAS, in connection with the issuance of Common Shares on the date
hereof and in accordance with (i) the attached conversion notice executed by
each of the Series A Holders and (ii) the attached redemption notice executed by
each of the Preferred Unit Holders, the Company has agreed to provide certain
registration rights to the Holders in respect of such Common Shares.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings (such definitions to be equally applicable to both the
singular and plural forms of the terms defined):
"Agreement" shall have the meaning set forth in the recitals hereto.
"Common Shares" shall have the meaning set forth in the recitals hereto.
"Common Units" shall have the meanings set forth in the recitals hereto.
"Company" shall have the meaning set forth in the recitals hereto.
2
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Holder" shall have the meaning set forth in the recitals hereto.
"Limited Partnership Agreement" shall have the meaning set forth in the
recitals hereto.
"NASD" means the National Association of Securities Dealers, Inc.
"Partnership" shall have the meaning set forth in the recitals hereto.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Preferred Unit Holders" shall have the meaning set forth in the recitals
hereto.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean the Common Shares of all Holders issued on
the date hereof, excluding (i) Common 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) Common Shares sold pursuant to Rule 144 or (iii) Common Shares eligible for
sale pursuant to Rule 144(k) (or any successor provision).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 4 hereof; and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company. 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 Expiration Date" shall have the meaning set forth in Section
2(a) hereof.
"Registration Statement" shall have the meaning set forth in Section 2(a)
hereof.
3
"Rule 144" shall mean Rule 144 under the Securities Act (or any successor
provision).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission.
"Series A Holders" shall have the meaning set forth in the recitals hereto.
"Series Three Holders" shall have the meaning set forth in the recitals
hereto.
"Series Two Holders" shall have the meaning set forth in the recitals
hereto.
2. Registration.
(a) Filing of Shelf Registration Statement. Subject to the conditions
set forth in this Agreement, the Company shall cause to be filed with the SEC by
July 15, 2002 a Registration Statement (the "Registration Statement") on Form
S-3 in accordance with Rule 415 under the Securities Act relating to the resale
by each Holder of all Registrable Shares of such Holder, and shall use
reasonable best efforts to cause such Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. The Company agrees to
use reasonable best efforts to keep the Registration Statement, after its date
of effectiveness, continuously effective until the earlier of (i) the date on
which all Registrable Shares have been disposed of by the Holders or (ii) the
date on which all Registrable Shares have become eligible for sale pursuant to
Rule 144(k) (or any successor provision) (hereinafter referred to as the
"Registration Expiration Date").
(b) Demand Registration. Subject to the conditions set forth in this
Agreement, at any time after the Registration Expiration Date and while any
Registrable Shares are outstanding, the Company shall, at the written request of
any Holder holding Registrable Shares, cause to be filed within twenty (20)
business days 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 best 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.
(c) Piggyback Registration. If at any time while any Registrable
Shares of a Holder are outstanding and a Registration Statement applicable to
such Holders is not effective, and the Company proposes to file a registration
statement under the Securities Act with respect to an offering solely of Common
Shares solely for cash (other than a registration statement (i) on Form S-8 or
any successor form to such Form or in connection with any employee or director
welfare, benefit or compensation plan, (ii) on Form S-4 or any successor form to
such Form or in connection with an exchange offer, (iii) in connection with a
rights offering exclusively to existing holders of Common Shares, (iv) in
connection with an offering solely to employees of the Company or its
subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of the
4
Securities Act), for its own account or for the accounts of other Holders, the
Company shall give prompt written notice of such proposed filing to the Holders.
The notice referred to in the preceding sentence shall offer the Holders the
opportunity to register such amount of Registrable Shares as each Holder may
request (a "Piggyback Registration"). Subject to the provisions of Section 4
below, the Company shall include in such Piggyback Registration, in the
registration and qualification for sale under the blue sky or securities laws of
the various states and in any underwriting in connection therewith all
Registrable Shares for which the Company has received written requests for
inclusion therein from Holders within twenty (20) calendar days after the notice
referred to above has been given by the Company to the Holders. Holders of
Registrable Shares shall be permitted to withdraw all or part of the Registrable
Shares from a Piggyback Registration at any time prior to the effective date of
such Piggyback Registration. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company and the managing underwriter
advises the Company that the total number of Common Shares requested to be
included in such registration by the Holders and holders under similar
registration rights agreements exceeds the number of Common Shares that can be
sold in such offering without impairing the pricing or other commercial
practicality of such offering, the Company will include in such registration in
the following priority: (i) first, all Common Shares the Company proposes to
sell, (ii) second, up to the full number of applicable Common Shares requested
to be included in such registration by any holders identified in that certain
Registration Rights and Lock-Up Agreement dated June 23, 1997, as amended from
time to time, by and among the Company and such holders, and (iii) third, up to
the full number of applicable Registrable Shares requested to be included in
such registration by any Holders and any other holders under similar
registration rights agreements with the Company which, in the case of this
clause (iii), in the opinion of such managing underwriter, can be sold without
adversely affecting the price range or probability of success of such offering
(with, to the extent necessary, Registrable Shares allocated pro rata among the
Holders and such other holders on the basis of the total number of Common Shares
requested to be included in such registration by all such holders). If in
connection with any registration under this Section 3(c), the Common Shares to
be registered will be distributed by or through one or more underwriters, then
the Company will make reasonable efforts, upon the request of any Holder
requesting registration of Registrable Shares under this Section 3(c), to
arrange for such underwriters to include the Registrable Shares of such Holder
among the Common Shares to be distributed by or through such underwriters.
(d) Notification and Distribution of Materials. The Company shall
notify each Holder of the effectiveness of any Registration Statement applicable
to the Registrable 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.
(e) Amendments and Supplements. The Company shall prepare and file
with the SEC from time to time such amendments and supplements to the
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all the
Registrable Shares until the earlier of (a) the Registration Expiration Date or
(b) the
5
date on which the Registration Statement ceases to be effective in accordance
with the terms of this Section 3. Upon ten (10) business days' notice, the
Company shall file any supplement or post-effective amendment to the
Registration Statement with respect to the plan of distribution or such Holder's
ownership interests in Registrable Shares that is reasonably necessary to permit
the sale of the Holder's Registrable Shares pursuant to the Registration
Statement. The Company shall file any necessary listing applications or
amendments to the existing applications to cause the Common Shares registered
under any Registration Statement to be then listed or quoted on the primary
exchange or quotation system on which the Common Shares are then listed or
quoted.
(f) Notice of Certain Events. The Company shall promptly notify each
applicable 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 applicable to such Holder
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.
(g) Underwritten Offerings. In the case of an underwritten offering of
Registrable Shares in which Holders will offer a number of Registrable Shares
with an aggregate offering price to the public of at least $35 million (provided
such number of shares represents at least 20 times the average daily trading
volume of Common Shares during the four weeks preceding the request by the
Holders to initiate an underwritten offering), the Company shall permit Holders
who hold a majority of all Registrable Shares held by the Holders who are
participating in such offering to select the investment banker(s) and manager(s)
who will administer such offering, subject to the approval of the Company which
will not be unreasonably withheld. In connection with any such underwritten
offering, the Company (upon ten (10) business days advance notice) will (i)
enter into underwriting and related agreements reasonably acceptable to the
Company with customary terms (including representations and warranties and
indemnification provisions, such provisions to be, to the extent customary, in
favor of the selling Holders as well as the underwriters, but which terms,
however, shall be no less favorable to the Company than the most recent
underwriting agreement entered into by the Company); (ii) to the extent not
otherwise disruptive of the Company's operations, reasonably cooperate with the
underwriter(s); (iii) provide customary closing documentation; (iv) to the
extent necessary, amend the Registration Statement; (v) to the extent not
otherwise disruptive of the Company's
6
operations, provide such information and make available appropriate personnel as
may reasonably be requested by the Holders or the managing underwriters, and
(vi) to the extent not otherwise disruptive of the Company's operations, provide
such Holder and underwriters and their respective counsel and accountants, if
any, the opportunity to participate in the preparation of such Registration
Statement, provided, that (a) Company personnel will not be required to
participate in road show presentations (but, upon reasonable advance notice and
to the extent not unduly disruptive of the Company's operations, Company
personnel whose identity and office may be reasonably determined by the Company
will be available to participate in a reasonable number of conference calls) and
(b) the Company will be reimbursed by the Holders participating in the offering
(who shall be jointly and severally liable for such reimbursement) for any out
of pocket costs and expenses in connection with such cooperation to the extent
such expenses are greater than the expenses, or are not the type of expenses,
which would be borne by the Company in the case of other Registration Statements
filed hereunder (e.g., the cost of preparing glossy prospectuses with pictures
and the cost of any road show presentations in which the Company may in its sole
discretion may elect to participate).
3. State Securities Laws. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Registration
Statement hereunder, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities or "Blue Sky" laws of such
states as any Holder may reasonably request, and the Company shall use its best
efforts to cause such filings to become effective; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such state in which it is not then qualified or
to file any general consent to service of process in any such state. Once
effective, the Company shall use its best efforts to keep such filings effective
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by the Holder
as set forth in the Registration Statement, (b) in the case of a particular
state, a Holder has notified the Company that it no longer requires an effective
filing in such state in accordance with its original request for filing or (c)
the date on which the Registration Statement ceases to be effective.
4. Expenses. 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; provided, however, the responsibility of the Company to bear all
Registration Expenses is subject to the Company's right to receive payments from
The Xxxxxxxx Xxxxxxxxxxx Charitable Trust, a/k/a The Trust u/w Xxxxxxxx
Xxxxxxxxxxx (the "Trust") pursuant to that certain Letter Agreement dated as of
June 7, 2002 by and between the Company, the Partnership, WRTEC, Inc. and the
Trust.
5. Indemnification by the Company. The Company agrees to indemnify each of
the Holders and their respective officers, directors, employees, agents,
representatives, fiduciaries and affiliates, and any underwriter (as defined in
the Securities Act (unless a formal underwriting agreement is entered into
between the Company and such underwriter, in which case the indemnification
provisions, if any, set forth therein shall apply), and each person or entity,
if any, that controls a Holder within the meaning of the Securities Act, and
each other person or entity,
7
if any, subject to liability because of his, her or its connection with a Holder
(each, an "Indemnitee"), against any and all losses, claims, damages, actions,
liabilities, costs and expenses (including without limitation reasonable fees,
expenses and disbursements of attorneys and other professionals), joint or
several, arising out of or based upon any violation by the Company of the
Securities Act or of any rule or regulation promulgated thereunder (i)
applicable to the Company and relating to action or inaction required of the
Company in connection with any Registration Statement or Prospectus, or (ii)
upon any untrue or alleged untrue statement of material fact contained in the
Registration Statement or any Prospectus, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, that the Company shall not be liable to such
Indemnitee or any person who participates as an underwriter in the offering or
sale of Registrable Shares or any other person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon (a) an untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement or in any such Prospectus in reliance upon and in
conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished in writing by such
person to the Company for use in connection with the Registration Statement or
the Prospectus contained therein by such Indemnitee or (b) such Holder's failure
to send or give a copy of the final, amended or supplemented prospectus
furnished to the Holder by the Company at or prior to the time such action is
required by the Securities Act to the person claiming an untrue statement or
alleged untrue statement or omission or alleged omission if such statement or
omission was corrected in such final, amended or supplemented prospectus.
6. Covenants of Holders. Each of the Holders (severally and not jointly)
hereby agrees (a) to cooperate with the Company and to furnish to the Company
all such information concerning its plan of distribution and ownership interests
with respect to its Registrable Shares in connection with the preparation of a
Registration Statement with respect to such Holder's Registrable Shares and any
filings with any state securities commissions as the Company may reasonably
request, (b) to deliver or cause delivery of the Prospectus contained in such
Registration Statement to any purchaser of the shares covered by such
Registration Statement from the Holder and (c) to indemnify the Company, its
officers, directors, employees, agents, representatives and affiliates, and each
person, if any, who controls the Company within the meaning of the Securities
Act, and each other person, if any, subject to liability because of his
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses (including, without limitation,
reasonable fees, expenses and disbursements of attorneys and other
professionals) arising out of or based upon (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 such Holder, its plan of distribution or its ownership interests,
which was furnished to the Company by such Holder expressly for use therein
unless such statement or omission was corrected in writing to the Company not
less than three (3) business days prior to the date of the final prospectus (as
supplemented or amended, as the case may be) or (ii) the failure by the
8
Holder to deliver or cause to be delivered the Prospectus contained in such
Registration Statement (as amended or supplemented, if applicable) furnished by
the Company to the Holder to any purchaser of the shares covered by such
Registration Statement from the Holder through no fault of the Company.
Notwithstanding the provisions of this Section 6, no Holder shall be required to
pay as indemnification hereunder any amount in excess of the gross proceeds from
the sale of Common Shares by such Holder which gave rise to the incurrence of
such indemnification.
7. Indemnification Procedures.
Any person entitled to indemnification under this Agreement shall notify
promptly the indemnifying party in writing of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
hereunder, but the failure of any indemnified party to provide such notice shall
not relieve the indemnifying party of its obligations hereunder, except to the
extent the indemnifying party is materially prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than hereunder. In case any action or proceeding is
brought against an indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside counsel to
the indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof (alone or jointly with any other indemnifying party similarly notified),
to the extent that it chooses, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof; provided,
however, that (i) if the indemnifying party fails to take reasonable steps
necessary to defend diligently the action or proceeding within twenty (20)
business days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; or (ii) if such indemnified
party who is a defendant in any action or proceeding which is also brought
against the indemnifying party reasonably shall have reasonably concluded, based
on the advice of counsel, that there may be one or more legal defenses available
to such indemnified party which are not available to the indemnifying party; or
(iii) if representation of both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct, then, in any
such case, the indemnified party shall have the right to assume or continue its
own defense as set forth above (but with no more than one firm of counsel for
all indemnified parties in each jurisdiction, except to the extent any
indemnified party or parties reasonably shall have concluded, based on the
advice of counsel, that there may be legal defenses available to such party or
parties which are not available to the other indemnified parties or to the
extent representation of all indemnified parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct) and
the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified party
(which shall not be unreasonably withheld), effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or (to
the knowledge of the indemnifying party) threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of
9
the indemnified party from all liability arising out of such action or claim and
(B) does not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of any indemnified party.
8. Suspension of Registration Requirement; Restriction on Sales.
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement with respect to such Holder's Registrable Shares or
the initiation of any proceedings for that purpose. The Company shall use its
best efforts to obtain the withdrawal of any order suspending the effectiveness
of such a Registration Statement at the earliest possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a Registration Statement shall be suspended
in the event and during such period as unforeseen circumstances exist (including
without limitation (i) an underwritten primary offering by the Company if the
Company is advised by the underwriters that the sale of Registrable Shares under
the Registration Statement would impair the pricing or commercial practicality
of the primary offering or (ii) pending negotiations relating to, or
consummation of, a transaction or the occurrence of an event that would require
additional disclosure of material information by the Company in the Registration
Statement or such filing, as to which the Company has a bona fide business
purpose for preserving confidentiality or which renders the Company unable to
comply with SEC requirements) (such unforeseen circumstances being hereinafter
referred to as a "Suspension Event") that would make it impractical or
unadvisable to cause the Registration Statement or such filings to become
effective or to amend or supplement the Registration Statement, but such
suspension shall continue only for so long as such event or its effect is
continuing. The Company shall promptly 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, and shall promptly notify the Holders upon the
expiration of such Suspension Event.
(c) Each holder of Registrable Shares agrees, if requested by the
Company in the case of a Company-initiated non-underwritten offering or if
requested by the managing underwriter or underwriters in a Company-initiated
underwritten offering, not to effect any public sale or distribution of any of
the securities of the Company, including a sale pursuant to Rule 144, during the
fifteen (15) day period prior to, and during the sixty (60) day period beginning
on, the date of commencement of such Company-initiated offering (such period, or
such lesser period as the Company may specify, a "Company Sale Period"), subject
to its rights under Section 3(c) hereof, and provided, that any such request
shall be made no more then two times in any twelve-month period.
(d) Notwithstanding anything to the contrary in this Agreement, in no
event shall Suspension Events be permitted to take effect more than twice in any
twelve-month period and in no event shall Suspension Events and Company Sale
Periods be permitted to take effect for more than an aggregate of one hundred
twenty (120) days in any twelve-month period.
10
9. Black-Out Period. Each Holder agrees that, following the effectiveness
of any Registration Statement (except an issuance registration statement)
relating to Registrable Shares of such Holder, such Holder will not effect any
sales of the Registrable Shares pursuant to the Registration Statement or any
filings with any state Securities Commission at any time after such Holder has
received notice from the Company to suspend sales as a result of the occurrence
or existence of any Suspension Event or so that the Company may correct or
update the Registration Statement or such filing. During such period, the
Company will not be obligated to effect redemptions of Common Units under an
issuance registration statement. The Holder may recommence effecting sales of
the Registrable Shares pursuant to the Registration Statement or such filings,
and the Company will be obligated to resume effecting redemptions of Common
Units under an issuance registration statement, and all other obligations which
are suspended as a result of a Suspension Event shall no longer be so suspended,
following 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. 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. If the indemnification provided for in Sections 5 and 6
is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
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 5 or 6 hereof had been available
under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 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 Registrable Shares exceeds the amount of any damages
that the Holder has otherwise been
11
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. 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 one-half of the aggregate of all
Registrable Shares held by such Holders, provided, however, that the Company
shall amend this Agreement to the extent of combining the conversion notices
executed by the Series A Holders attached hereto and the redemption notices
executed by the Preferred Unit Holders attached hereto into Schedule A to this
Agreement listing the name of each Holder and the number of Common Shares held
by such Holder.
13. Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by registered
or certified mail (return receipt requested), postage prepaid or courier or
overnight delivery service to the respective parties at the following addresses
(or at such other address for any party as shall be specified by like notice,
provided, that notices of a change of address shall be effective only upon
receipt thereof):
If to the Company: Boston Properties, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx Procter LLP
Exchange Place
Boston, MA 02109
Attn: Xxxxxx X. Xxxxxxxx, P.C.
Telecopy:(000) 000-0000
If to the Holders: As listed on the applicable Holder Signature Page
In addition to the manner of notice permitted above, notices given pursuant to
Sections 8 and 9 hereof may be effected telephonically and confirmed in writing
thereafter in the manner described above.
14. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
If any successor, assignee or transferee of any Holder shall acquire Registrable
Shares, in any manner, whether by operation of law or otherwise, (i) such
successor, assignee or transferee shall be entitled to all of the benefits of a
"Holder" under this Agreement and (ii) such Registrable Shares shall be held
subject to all of the terms of this
12
Agreement, and by taking and holding such Registrable Shares such Person shall
be conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
15. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. 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.
17. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
18. Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be the complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[The Remainder of This Page Has Been Intentionally Left Blank]
13
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
BOSTON PROPERTIES LIMITED
PARTNERSHIP
By: Boston Properties, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
14
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights Agreement (the
"Registration Rights Agreement") entered into as of July 8, 2002 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein. The undersigned, by its execution hereof, agrees to be bound by
all the terms of a Holder thereunder. The undersigned agrees that this signature
page may be attached to any counterpart of the Registration Rights Agreement.
Signature Line for Individual: /s/ Xxxxx X. Xxxxx
--------------------
Name: Xxxxx X. Xxxxx
Date: July 8, 2002
Signature Line for Entity: _________________________________
(Name of Entity)
By: _____________________________
Name:
Title:
Date:
Address for Notice: ---------------------------------
---------------------------------
---------------------------------
Fax No.: _________________________
15
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights Agreement (the
"Registration Rights Agreement") entered into as of July 8, 2002 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein. The undersigned, by its execution hereof, agrees to be bound by
all the terms of a Holder thereunder. The undersigned agrees that this signature
page may be attached to any counterpart of the Registration Rights Agreement.
Signature Line for Individual: _________________________________
Name:
Date:
Signature Line for Entity: The Trust u/w Xxxxxxxx Xxxxxxxxxxx
----------------------------------
(Name of Entity)
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Trustee
Date: July 1, 2002
Address for Notice: 0000 Xxxxxxxxx Xxxx, Xxx. 0
----------------------------------
Xxxxxx Xxxx, XX 00000
----------------------------------
----------------------------------
Fax No.: 000-000-0000
16
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights Agreement (the
"Registration Rights Agreement") entered into as of July 8, 2002 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein. The undersigned, by its execution hereof, agrees to be bound by
all the terms of a Holder thereunder. The undersigned agrees that this signature
page may be attached to any counterpart of the Registration Rights Agreement.
Signature Line for Individual: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Date: July 1, 2002
Signature Line for Entity: _________________________________
(Name of Entity)
By: _____________________________
Name:
Title:
Date:
Address for Notice: 0000 Xxxxxxxx Xxxxx
---------------------------------
Xxxxxxxxx, XX 00000
---------------------------------
---------------------------------
Fax No.: 000-000-0000
17
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Registration Rights Agreement (the
"Registration Rights Agreement") entered into as of July 8, 2002 by and among
Boston Properties, Inc., Boston Properties Limited Partnership, and the Holders
named therein. The undersigned, by its execution hereof, agrees to be bound by
all the terms of a Holder thereunder. The undersigned agrees that this signature
page may be attached to any counterpart of the Registration Rights Agreement.
Signature Line for Individual: /s/ Xxxxxxx deP. Xxxxxxx, Jr.
---------------------------------
Name: Xxxxxxx deP. Xxxxxxx, Jr.
Date: July 8, 2002
Signature Line for Entity: _________________________________
(Name of Entity)
By: _____________________________
Name:
Title:
Date:
Address for Notice: __________________________________
__________________________________
__________________________________
Fax No.: _________________________
18
SCHEDULE A
NAME OF HOLDER NUMBER OF COMMON SHARES
-------------- -----------------------
The Trust u/w Xxxxxxxx Xxxxxxxxxxx 832,121
Xxxxx X. Xxxxx 35
Xxxxxxx deP. Xxxxxxx, Jr. 11,203
Xxxxxx X. Xxxxxxx 3,195
TOTAL 846,554
19
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
BOSTON PROPERTIES, INC., BOSTON PROPERTIES LIMITED PARTNERSHIP,
AND
PERSEVERANCE ASSOCIATES L.P., PIC REALTY CORPORATION AND
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
July 8, 2002
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as of
July 8, 2002 by and among Boston Properties, Inc., a Delaware corporation (the
"Company"), Boston Properties Limited Partnership, a Delaware limited
partnership (the "Partnership"), and Perseverance Associates L.P., a California
limited partnership ("Perseverance"), PIC Realty Corporation, a Delaware
corporation ("PIC") and The Prudential Insurance Company of America, a New
Jersey corporation ("Prudential"; Prudential, Perseverance, PIC and their
respective successors and assigns each a "Holder" and, collectively, the
"Holders").
WHEREAS, each of the Holders converted as of July 8, 2002 their Series
Three preferred units of limited partnership interest of the Partnership into
common units (the "Common Units") of limited partnership interest of the
Partnership;
WHEREAS, the Holders presented their Common Units to the Partnership for
redemption and the Company as of July 8, 2002, as the general partner of the
Partnership and in accordance with the terms of the Second Amended and Restated
Agreement of Limited Partnership of the Partnership (as amended, the "Limited
Partnership Agreement"), acquired the Common Units for Common Shares; and
WHEREAS, in connection with the issuance of Common Shares on the date
hereof and in accordance with the attached redemption notice executed by each of
the Holders, the Company has agreed to provide certain registration rights to
the Holders in respect of such Common Shares.
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:
19. Certain Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings (such definitions to be equally applicable to both the
singular and plural forms of the terms defined):
"Agreement" shall have the meaning set forth in the recitals hereto.
"Common Shares" shall have the meaning set forth in the recitals hereto.
"Common Units" shall have the meanings set forth in the recitals hereto.
"Company" shall have the meaning set forth in the recitals hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Holder" shall have the meaning set forth in the recitals hereto.
21
"Limited Partnership Agreement" shall have the meaning set forth in the
recitals hereto.
"NASD" means the National Association of Securities Dealers, Inc.
"Partnership" shall have the meaning set forth in the recitals hereto.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean the Common Shares of all Holders issued on
the date hereof, excluding (i) Common 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) Common Shares sold pursuant to Rule 144 or (iii) Common Shares eligible for
sale pursuant to Rule 144(k) (or any successor provision).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 4 hereof; and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company. 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 Expiration Date" shall have the meaning set forth in Section
2(a) hereof.
"Registration Statement" shall have the meaning set forth in Section 2(a)
hereof.
"Rule 144" shall mean Rule 144 under the Securities Act (or any successor
provision).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission.
22
"Series A Holders" shall have the meaning set forth in the recitals hereto.
"Series Three Holders" shall have the meaning set forth in the recitals
hereto.
"Series Two Holders" shall have the meaning set forth in the recitals
hereto.
20. Registration.
(a) Filing of Shelf Registration Statement. Subject to the conditions
set forth in this Agreement, the Company shall cause to be filed with the SEC by
July 15, 2002 (or within five (5) business days of the date, if later, on which
each of the Holders delivers to the Company a signed representation of the
beneficial holdings of such Holder, within the meaning of Rule 13d-3 promulgated
under the Exchange Act, as of a date after July 8, 2002), a Registration
Statement (the "Registration Statement") on Form S-3 in accordance with Rule 415
under the Securities Act relating to the resale by each Holder of all
Registrable Shares of such Holder, and shall use reasonable best efforts to
cause such Registration Statement to be declared effective by the SEC as soon as
practicable thereafter. The Company agrees to use reasonable best efforts to
keep the Registration Statement, after its date of effectiveness, continuously
effective until the earlier of (i) the date on which all Registrable Shares have
been disposed of by the Holders or (ii) the date on which all Registrable Shares
have become eligible for sale pursuant to Rule 144(k) (or any successor
provision) (hereinafter referred to as the "Registration Expiration Date").
(b) Demand Registration. Subject to the conditions set forth in this
Agreement, at any time after the Registration Expiration Date and while any
Registrable Shares are outstanding, the Company shall, at the written request of
any Holder holding Registrable Shares, cause to be filed within twenty (20)
business days 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 best 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.
(c) Piggyback Registration. If at any time while any Registrable
Shares of a Holder are outstanding and a Registration Statement applicable to
such Holders is not effective, and the Company proposes to file a registration
statement under the Securities Act with respect to an offering solely of Common
Shares solely for cash (other than a registration statement (i) on Form S-8 or
any successor form to such Form or in connection with any employee or director
welfare, benefit or compensation plan, (ii) on Form S-4 or any successor form to
such Form or in connection with an exchange offer, (iii) in connection with a
rights offering exclusively to existing holders of Common Shares, (iv) in
connection with an offering solely to employees of the Company or its
subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of the
Securities Act), for its own account or for the accounts of other Holders, the
Company shall give prompt written notice of such proposed filing to the Holders.
The notice referred to in the preceding sentence shall offer the Holders the
opportunity to register such amount of Registrable
23
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 from Holders within twenty (20) calendar days
after the notice referred to above has been given by the Company to the Holders.
Holders of Registrable Shares shall be permitted to withdraw all or part of the
Registrable Shares from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company and the managing
underwriter advises the Company that the total number of Common Shares requested
to be included in such registration by the Holders and holders under similar
registration rights agreements exceeds the number of Common Shares that can be
sold in such offering without impairing the pricing or other commercial
practicality of such offering, the Company will include in such registration in
the following priority: (i) first, all Common Shares the Company proposes to
sell, (ii) second, up to the full number of applicable Common Shares requested
to be included in such registration by any holders identified in that certain
Registration Rights and Lock-Up Agreement dated June 23, 1997, as amended from
time to time, by and among the Company and such holders, and (iii) third, up to
the full number of applicable Registrable Shares requested to be included in
such registration by any Holders and any other holders under similar
registration rights agreements with the Company which, in the case of this
clause (iii), in the opinion of such managing underwriter, can be sold without
adversely affecting the price range or probability of success of such offering
(with, to the extent necessary, Registrable Shares allocated pro rata among the
Holders and such other holders on the basis of the total number of Common Shares
requested to be included in such registration by all such holders). If in
connection with any registration under this Section 3(c), the Common Shares to
be registered will be distributed by or through one or more underwriters, then
the Company will make reasonable efforts, upon the request of any Holder
requesting registration of Registrable Shares under this Section 3(c), to
arrange for such underwriters to include the Registrable Shares of such Holder
among the Common Shares to be distributed by or through such underwriters.
(d) Notification and Distribution of Materials. The Company shall
notify each Holder of the effectiveness of any Registration Statement applicable
to the Registrable 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.
(e) Amendments and Supplements. The Company shall prepare and file
with the SEC from time to time such amendments and supplements to the
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all the
Registrable Shares until the earlier of (a) the Registration Expiration Date or
(b) the date on which the Registration Statement ceases to be effective in
accordance with the terms of this Section 3. Upon ten (10) business days'
notice, the Company shall file any supplement or post-effective amendment to the
Registration Statement with respect to the plan of distribution or
24
such Holder's ownership interests in Registrable Shares that is reasonably
necessary to permit the sale of the Holder's Registrable Shares pursuant to the
Registration Statement. The Company shall file any necessary listing
applications or amendments to the existing applications to cause the Common
Shares registered under any Registration Statement to be then listed or quoted
on the primary exchange or quotation system on which the Common Shares are then
listed or quoted.
(f) Notice of Certain Events. The Company shall promptly notify each
applicable 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 applicable to such Holder
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.
(g) Underwritten Offerings. In the case of an underwritten offering of
Registrable Shares in which Holders will offer a number of Registrable Shares
with an aggregate offering price to the public of at least $35 million (provided
such number of shares represents at least 20 times the average daily trading
volume of Common Shares during the four weeks preceding the request by the
Holders to initiate an underwritten offering), the Company shall permit Holders
who hold a majority of all Registrable Shares held by the Holders who are
participating in such offering to select the investment banker(s) and manager(s)
who will administer such offering, subject to the approval of the Company which
will not be unreasonably withheld. In connection with any such underwritten
offering, the Company (upon ten (10) business days advance notice) will (i)
enter into underwriting and related agreements reasonably acceptable to the
Company with customary terms (including representations and warranties and
indemnification provisions, such provisions to be, to the extent customary, in
favor of the selling Holders as well as the underwriters, but which terms,
however, shall be no less favorable to the Company than the most recent
underwriting agreement entered into by the Company); (ii) to the extent not
otherwise disruptive of the Company's operations, reasonably cooperate with the
underwriter(s); (iii) provide customary closing documentation; (iv) to the
extent necessary, amend the Registration Statement; (v) to the extent not
otherwise disruptive of the Company's operations, provide such information and
make available appropriate personnel as may reasonably be requested by the
Holders or the managing underwriters, and (vi) to the extent not otherwise
disruptive of the Company's operations, provide such Holder and underwriters and
25
their respective counsel and accountants, if any, the opportunity to participate
in the preparation of such Registration Statement, provided, that (a) Company
personnel will not be required to participate in road show presentations (but,
upon reasonable advance notice and to the extent not unduly disruptive of the
Company's operations, Company personnel whose identity and office may be
reasonably determined by the Company will be available to participate in a
reasonable number of conference calls) and (b) the Company will be reimbursed by
the Holders participating in the offering (who shall be jointly and severally
liable for such reimbursement) for any out of pocket costs and expenses in
connection with such cooperation to the extent such expenses are greater than
the expenses, or are not the type of expenses, which would be borne by the
Company in the case of other Registration Statements filed hereunder (e.g., the
cost of preparing glossy prospectuses with pictures and the cost of any road
show presentations in which the Company may in its sole discretion may elect to
participate).
21. State Securities Laws. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Registration
Statement hereunder, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities or "Blue Sky" laws of such
states as any Holder may reasonably request, and the Company shall use its best
efforts to cause such filings to become effective; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such state in which it is not then qualified or
to file any general consent to service of process in any such state. Once
effective, the Company shall use its best efforts to keep such filings effective
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by the Holder
as set forth in the Registration Statement, (b) in the case of a particular
state, a Holder has notified the Company that it no longer requires an effective
filing in such state in accordance with its original request for filing or (c)
the date on which the Registration Statement ceases to be effective.
22. Expenses. 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.
23. Indemnification by the Company. The Company agrees to indemnify each of
the Holders and their respective officers, directors, employees, agents,
representatives, fiduciaries and affiliates, and any underwriter (as defined in
the Securities Act (unless a formal underwriting agreement is entered into
between the Company and such underwriter, in which case the indemnification
provisions, if any, set forth therein shall apply), and each person or entity,
if any, that controls a Holder within the meaning of the Securities Act, and
each other person or entity, if any, subject to liability because of his, her or
its connection with a Holder (each, an "Indemnitee"), against any and all
losses, claims, damages, actions, liabilities, costs and expenses (including
without limitation reasonable fees, expenses and disbursements of attorneys and
other professionals), joint or several, arising out of or based upon any
violation by the Company of the Securities Act or of any rule or regulation
promulgated thereunder (i) applicable to the Company and relating to action or
inaction required of the Company in connection with any Registration Statement
or Prospectus, or (ii) upon any untrue or alleged untrue statement of
26
material fact contained in the Registration Statement or any Prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, that the
Company shall not be liable to such Indemnitee or any person who participates as
an underwriter in the offering or sale of Registrable Shares or any other
person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (a) an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or in any such
Prospectus in reliance upon and in conformity with information regarding such
Indemnitee or its plan of distribution or ownership interests which was
furnished in writing by such person to the Company for use in connection with
the Registration Statement or the Prospectus contained therein by such
Indemnitee or (b) 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.
24. Covenants of Holders. Each of the Holders (severally and not jointly)
hereby agrees (a) to cooperate with the Company and to furnish to the Company
all such information concerning its plan of distribution and ownership interests
with respect to its Registrable Shares in connection with the preparation of a
Registration Statement with respect to such Holder's Registrable Shares and any
filings with any state securities commissions as the Company may reasonably
request, (b) to deliver or cause delivery of the Prospectus contained in such
Registration Statement to any purchaser of the shares covered by such
Registration Statement from the Holder and (c) to indemnify the Company, its
officers, directors, employees, agents, representatives and affiliates, and each
person, if any, who controls the Company within the meaning of the Securities
Act, and each other person, if any, subject to liability because of his
connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses (including, without limitation,
reasonable fees, expenses and disbursements of attorneys and other
professionals) arising out of or based upon (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 such Holder, its plan of distribution or its ownership interests,
which was furnished to the Company by such Holder expressly for use therein
unless such statement or omission was corrected in writing to the Company not
less than three (3) business days prior to the date of the final prospectus (as
supplemented or amended, as the case may be) or (ii) the failure by the Holder
to deliver or cause to be delivered the Prospectus contained in such
Registration Statement (as amended or supplemented, if applicable) furnished by
the Company to the Holder to any purchaser of the shares covered by such
Registration Statement from the Holder through no fault of the Company.
Notwithstanding the provisions of this Section 6, no Holder shall be required to
pay as indemnification hereunder any amount in excess of the gross proceeds from
the sale of Common Shares by such Holder which gave rise to the incurrence of
such indemnification.
27
25. Indemnification Procedures.
Any person entitled to indemnification under this Agreement shall notify
promptly the indemnifying party in writing of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
hereunder, but the failure of any indemnified party to provide such notice shall
not relieve the indemnifying party of its obligations hereunder, except to the
extent the indemnifying party is materially prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than hereunder. In case any action or proceeding is
brought against an indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside counsel to
the indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof (alone or jointly with any other indemnifying party similarly notified),
to the extent that it chooses, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof; provided,
however, that (i) if the indemnifying party fails to take reasonable steps
necessary to defend diligently the action or proceeding within twenty (20)
business days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; or (ii) if such indemnified
party who is a defendant in any action or proceeding which is also brought
against the indemnifying party reasonably shall have reasonably concluded, based
on the advice of counsel, that there may be one or more legal defenses available
to such indemnified party which are not available to the indemnifying party; or
(iii) if representation of both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct, then, in any
such case, the indemnified party shall have the right to assume or continue its
own defense as set forth above (but with no more than one firm of counsel for
all indemnified parties in each jurisdiction, except to the extent any
indemnified party or parties reasonably shall have concluded, based on the
advice of counsel, that there may be legal defenses available to such party or
parties which are not available to the other indemnified parties or to the
extent representation of all indemnified parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct) and
the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified party
(which shall not be unreasonably withheld), effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or (to
the knowledge of the indemnifying party) threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
26. Suspension of Registration Requirement; Restriction on Sales.
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of a Registration
28
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
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 promptly 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, and shall promptly notify the Holders upon the
expiration of such Suspension Event.
(c) Each holder of Registrable Shares agrees, if requested by the
Company in the case of a Company-initiated non-underwritten offering or if
requested by the managing underwriter or underwriters in a Company-initiated
underwritten offering, not to effect any public sale or distribution of any of
the securities of the Company, including a sale pursuant to Rule 144, during the
fifteen (15) day period prior to, and during the sixty (60) day period beginning
on, the date of commencement of such Company-initiated offering (such period, or
such lesser period as the Company may specify, a "Company Sale Period"), subject
to its rights under Section 3(c) hereof, and provided, that any such request
shall be made no more then two times in any twelve-month period.
(d) Notwithstanding anything to the contrary in this Agreement, in no
event shall Suspension Events be permitted to take effect more than twice in any
twelve-month period and in no event shall Suspension Events and Company Sale
Periods be permitted to take effect for more than an aggregate of seventy-five
(75) days in any twelve-month period.
27. Black-Out Period. Each Holder agrees that, following the effectiveness
of any Registration Statement (except an issuance registration statement)
relating to Registrable Shares of such Holder, such Holder will not effect any
sales of the Registrable Shares pursuant to the Registration Statement or any
filings with any state Securities Commission at any time after such Holder has
received notice from the Company to suspend sales as a result of the occurrence
or existence of any Suspension Event or so that the Company may correct or
update the Registration Statement or such filing. During such period, the
Company will not be obligated to effect redemptions of Common Units under an
issuance registration statement. The Holder may recommence effecting sales of
the Registrable Shares pursuant to the Registration Statement or
29
such filings, and the Company will be obligated to resume effecting redemptions
of Common Units under an issuance registration statement, and all other
obligations which are suspended as a result of a Suspension Event shall no
longer be so suspended, following 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.
28. Additional Shares. The Company, at its option, may register, under any
Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued Common Shares of the
Company or any Common Shares of the Company owned by any other shareholder or
shareholders of the Company.
29. Contribution. If the indemnification provided for in Sections 5 and 6
is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
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 5 or 6 hereof had been available
under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 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 Registrable 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.
30. 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 one-half of the aggregate of all
Registrable Shares held by such Holders, provided, however, that the Company
shall amend this Agreement to the
30
extent of combining the conversion notices executed by the Series A Holders
attached hereto and the redemption notices executed by the Holders attached
hereto into Schedule A to this Agreement listing the name of each Holder and the
number of Common Shares held by such Holder.
31. Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by registered
or certified mail (return receipt requested), postage prepaid or courier or
overnight delivery service to the respective parties at the following addresses
(or at such other address for any party as shall be specified by like notice,
provided, that notices of a change of address shall be effective only upon
receipt thereof):
If to the Company: Boston Properties, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy:(000) 000-0000
with a copy to: Xxxxxxx Procter LLP
Exchange Place
Boston, MA 02109
Attn: Xxxxxx X. Xxxxxxxx, P.C.
Telecopy: (000) 000-0000
If to the Holders: As listed on the applicable Holder Signature Page
In addition to the manner of notice permitted above, notices given pursuant to
Sections 8 and 9 hereof may be effected telephonically and confirmed in writing
thereafter in the manner described above.
32. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
If any successor, assignee or transferee of any Holder shall acquire Registrable
Shares, in any manner, whether by operation of law or otherwise, (i) such
successor, assignee or transferee shall be entitled to all of the benefits of a
"Holder" under this Agreement and (ii) such Registrable Shares shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Shares such Person shall be conclusively deemed to have agreed to be
bound by all of the terms and provisions hereof.
33. 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.
34. 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.
31
35. 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.
36. Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be the complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[The Remainder of This Page Has Been Intentionally Left Blank]
32
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
BOSTON PROPERTIES LIMITED
PARTNERSHIP
By: Boston Properties, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
PERSEVERANCE ASSOCIATES L.P.
By: PIC Realty Corporation,
its general partner
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PIC REALTY CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
33
