EXHIBIT H
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Exhibit 1.01(k) to the Stock Purchase Agreement
(Form of Registration Rights and Voting Agreement)
SEE ATTACHED
EXHIBIT H
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REGISTRATION RIGHTS AND VOTING AGREEMENT
THIS REGISTRATION RIGHTS AND VOTING AGREEMENT (this "Agreement"), is made
and entered into as of this ___ day of _________, 1997, by and between
CORNERSTONE PROPERTIES INC., a Nevada corporation (the "Company"), DUTCH
INSTITUTIONAL HOLDING COMPANY, INC., a Delaware corporation ("DIHC"), and
STICHTING PENSIOENFONDS VOOR DE GEZONDHEID, GEESTELIJKE EN MAATSCHAPPELIJKE
BELANGEN, a stichting formed according to the laws of The Netherlands ("PGGM").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the terms of that certain Stock Purchase Agreement
(the "Purchase Agreement"), dated as of August __, 1997, between the Company and
DIHC, and the Loan Purchase Agreement (the "Loan Agreement") dated as of
August __, 1997, between the Company and PGGM, the Company is acquiring certain
shares of capital stock, partnership interests and loans from DIHC and PGGM and
issuing shares of its Common Stock (as defined below) to DIHC and PGGM; and
WHEREAS, the Company, DIHC and PGGM desire to provide (i) for compliance
with the Securities Act of 1933, as amended (the "Securities Act"), with respect
to the issuance of shares of its Common Stock and (ii) for the registration
under the Securities Act of certain shares upon the terms and conditions set
forth below; and
WHEREAS, the Company, DIHC and PGGM desire to provide (i) for the
nomination and election of certain persons to serve on the Board of Directors of
the Company, (ii) for certain restrictions regarding the transfer of shares of
Common Stock and (iii) for certain covenants regarding the operation of the
Company's business, upon the consummation of the transactions provided for by
the Purchase Agreement and the Loan Agreement.
NOW, THEREFORE, the parties agree as follows:
1. CERTAIN OTHER DEFINITIONS. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Purchase Agreement. The
capitalized terms set forth below (in their singular and plural forms as
applicable) shall have the following meanings:
a. "AFFILIATE" means, with respect to any specified Person, any other Person
that directly, or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with, such specified Person.
b. "BUSINESS COMBINATION" means any one of the following transactions:
(1) Any merger or consolidation of the Company or any subsidiary
thereof with any other Person (other than the Company);
(2) Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition by the Company (in one transaction or a series of
transactions) to or with any Person of all or a substantial
portion of the assets of the Company and its subsidiaries taken
as a whole;
(3) The adoption of any plan or proposal for the liquidation or
dissolution of the Company proposed by or on behalf of any Holder
or its Affiliates that together own 25% or more of the issued and
outstanding Common Stock; or
(4) Any reclassification of securities (including any reverse stock
split), recapitalization of the Company, or any merger or
consolidation of the Company with any subsidiary thereof or any
other transaction to which the Company is a party which has the
effect, directly or indirectly, of increasing the Holder Interest
of such Holder or its Affiliates that together own 25% or more of
the issued and outstanding Common Stock (whether or not with or
into or otherwise involving such Holder or any of its
Affiliates).
c. "CLOSING DATE" has the meaning specified in Section 2.04 of the Purchase
Agreement.
d. "COMMISSION" shall mean the United States Securities and Exchange
Commission and any successor federal agency having similar powers.
e. "COMMON STOCK" shall mean the common stock without par value of the
Company.
f. "CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly or as trustee,
personal representative or executor, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee, personal representative or
executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect
a majority of the board of directors or similar body governing the affairs
of such Person.
g. "CURRENT MARKET PRICE" of each share of Common Stock shall mean (i) the
average of the closing prices of the Common Stock for the five New York
Stock Exchange trading days immediately preceding the day in question as
reported by THE WALL STREET JOURNAL under the New York Stock Exchange
Composite Transactions quotation system (or under any successor quotation
system) or, if the Common Stock is no longer traded on the New York Stock
Exchange under the quotation system under which such closing prices are
reported or, if THE WALL STREET JOURNAL no longer reports such closing
prices, such closing prices as reported by a newspaper or trade journal
selected by the Company or (ii) if no such closing prices are available on
such dates, the fair market value as determined in good faith by the Board
of Directors of the Company.
h. "DEMAND OFFERING" shall mean a offering required to be effected pursuant to
Section 3.3 hereof.
i. "DEMAND PROSPECTUS" shall mean the prospectus included in the Shelf
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, including any supplement relating to the
terms of the offering of any portion of the Demand Offering Securities
covered by the Demand Prospectus, and in each case including all material
incorporated by reference therein.
j. "DEMAND OFFERING SECURITIES" shall mean the Shares held by DIHC and PGGM or
any subsequent Holder to whom this Agreement has, or rights to cause the
Company to register Shares in accordance with Section 3 have, been assigned
pursuant to Section 9, excluding (i) Shares that have been disposed of
under the Shelf Registration Statement or any other
effective registration statement, (ii) Shares sold or otherwise transferred
pursuant to Rule 144 under the Securities Act, and (iii) those Shares held
by any single Holder if such Holder holds less than 1% of the issued and
outstanding shares of Common Stock and all of such Shares are eligible for
sale pursuant to Rule 144 under the Securities Act and all of such Holder's
Shares could be sold by such Holder in a single transaction under Rule 144
under the Securities Act.
k. "DEMAND OFFERING EXPENSES" shall mean any and all expenses incurred by the
Company in connection with Demand Offerings, including, without limitation:
(i) all Commission, stock exchange and National Association of Securities
Dealers, Inc. ("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 qualification of any of the Demand Offering Securities
under any state securities or blue sky laws 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 Demand 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 Demand Offering Securities on any U.S.
securities exchange or exchanges, 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 audits or "cold comfort"
letters required by or incident to such performance and compliance. Demand
Offering Expenses shall specifically exclude Selling Expenses and the fees
and expenses of counsel representing the Holders, all of which shall be
borne by the Holders in all cases.
l. "DEMAND OFFERING REQUEST" shall have the meaning set forth in
Section 3.3(a) hereof.
m. "DIHC" shall have the meaning set forth in the Preamble.
n. "ENCUMBRANCE" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement, or restriction of any
kind, including, without limitation, any restriction
on the use, voting, transfer, receipt of income or other exercise of any
attributes of ownership.
o. "EQUITY SECURITY" means any (i) Common Stock, (ii) securities of the
Company convertible into or exchangeable for Common Stock, and
(iii) options, rights, warrants and similar securities issued by the
Company to acquire Common Stock.
p. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
q. "HOLDER" shall mean DIHC and PGGM (and their respective transferees of
Shares as permitted by this Agreement to whom this Agreement has, or rights
to cause the Company to register Shares in accordance with Section 3 have,
been assigned pursuant to Section 9).
r. "HOLDER INTEREST" means, with respect to any Holder, the percentage of
issued and outstanding Common Stock represented by the shares of Common
Stock owned by such Holder and its Affiliates; provided, however, that
shares of Common Stock indirectly owned through an intermediary (i) of
which such Holder owns less than 1% of the issued and outstanding common
shares, or (ii) in connection with which Holder has no right to direct the
vote of shares of the Company shall not be included in the Holder Interest
of such Holder.
s. "INDEBTEDNESS" means, with respect to any Person, (a) all indebtedness of
such Person, whether or not contingent, for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services, (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or should
be, in accordance with U.S. GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (g) all obligations of such Person
to purchase, redeem, retire, defease or otherwise acquire for value any
capital stock of such Person or any warrants, rights or options to acquire
such capital stock, valued, in the case of redeemable preferred stock, at
the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends, (h) the greater of (i) the principal amount
and (ii) the redemption value of any perpetual preferred stock issued by
such Person, (i) all Indebtedness of others referred to in clauses
(a) through (f) above guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to advance
or supply funds for the payment or purchase of such Indebtedness, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss, (iii) to supply funds to or in any other manner invest in the
debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (iv) otherwise to assure a creditor against loss, and (j) all
Indebtedness referred to in clauses (a) through (f) above secured by (or
for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Encumbrance on property (including,
without limitation, accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Indebtedness.
t. "INCUMBENT DIRECTORS" shall mean (i) all of the individuals constituting
the board of directors of the Company at the Closing Date (ii) all
individuals hereafter designated as nominees to the board of directors by
the New York State Teachers' Retirement System pursuant to a letter
agreement dated November 22, 1996, (iii) all individuals hereafter
designated as nominees to the board of directors by Hexalon Real Estate,
Inc. pursuant to a letter agreement dated November 7, 1996, and (iv) one
individual hereafter designated by Deutsche Bank AG as a nominee to the
board of directors.
u. "Initial Percentage" means the percentage of issued and outstanding Common
Stock represented immediately after the Closing by the Shares.
v. "LEVERAGE RATIO" shall mean the ratio of the Company's Indebtedness to the
Company's Total Market Capitalization.
w. "MAXIMUM NUMBER" shall having the meaning set forth in Section 3.3(e)
hereof.
x. "PERMITTED TRANSFEREE" means any (i) mutual fund company, pension fund,
insurance company, investment company, any state, city, or county, or any
agency or instrumentality of a state, city, or county, or any state
university or state college, and any retirement system for the benefit of
employees of any of the foregoing, any religious or educational
organization or other passive institutional investor or (ii) any non-U.S.
Person (as defined in Section 9.02 of the Charter Amendment) that is not
controlled by U.S. Persons (as defined in the Charter Amendment).
y. "PERSON" means any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Exchange Act.
z. "PGGM" shall have the meaning set forth in the Preamble.
aa. "PIGGYBACK REGISTRATION" shall have the meaning set forth in Section 3.6(a)
hereof.
ab. "PIGGYBACK REGISTRATION REQUEST" shall have the meaning set forth in
Section 3.6(a) hereof.
ac. "PUBLIC OFFERING" means a public offering of Common Stock pursuant an
effective registration statement under the Securities Act.
ad. The terms "REGISTER", "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
ae. "SECURITIES ACT" means the Securities Act of 1933, as amended.
af. "SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions and transfer taxes applicable to the sale of Shelf Registrable
Securities or Demand Offering Securities and disbursements of underwriters.
ag. "SHARES" shall mean (a) the shares of Common Stock issued pursuant to the
Purchase Agreement and the Loan Agreement and (b) shares of Common Stock or
any other securities which are hereafter issued with respect to the shares
referred to in Section 1.33(a) by way of conversion, exchange,
reclassification, dividend or distribution, whether or not such securities
have been offered and sold to the public.
ah. "SHELF PROSPECTUS" shall mean the prospectus included in the Shelf
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, including any supplement relating to the
terms of the offering of any portion of the Shelf Registrable Securities
covered by the Shelf Registration Statement, and in each case including all
material incorporated by reference therein.
ai. "SHELF REGISTRATION" shall mean the registration required to be effected
pursuant to Section 3.1 hereof.
aj. "SHELF REGISTRABLE SECURITIES" shall mean the Shares held by DIHC and PGGM
or any subsequent Holder to whom this Agreement has, or rights to cause the
Company to register Shares in accordance with Section 3 have, been assigned
pursuant to Section 9, excluding (i) Shares that have been disposed of
under the Shelf Registration Statement or any other effective registration
statement, (ii) Shares sold or otherwise transferred pursuant to Rule 144
under the Securities Act, and (iii) those Shares held by any single Holder
if such Holder holds less than 1% of the issued and outstanding shares of
Common Stock and all of such Shares are eligible for sale pursuant to Rule
144 under the Securities Act and all of such Holder's Shares could be sold
by such Holder in a single transaction under Rule 144 under the Securities
Act.
ak. "SHELF REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation: (i) all Commission, stock exchange and 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 qualification of any
of the Shelf Registrable Securities under any state securities or blue sky
laws 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 the Shelf Registration Statement, any Shelf 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 Shelf Registrable
Securities on any securities exchange or exchanges, 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 audits or
"cold comfort" letters required by or incident to such performance and
compliance. Shelf Registration Expenses shall specifically exclude Selling
Expenses and the fees and disbursements of counsel representing the
Holders, all of which shall be borne by the Holders in all cases.
al. "SHELF REGISTRATION NOTICE" shall have the meaning set forth in
Section 3.2(b) hereof.
am. "SHELF REGISTRATION STATEMENT" shall mean a registration statement of the
Company (and any other entity required to be a registrant with respect to
such registration statement pursuant to the requirements of the Securities
Act) that covers all of the Shelf Registrable Securities to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act,
or any similar rule that may be adopted by the Commission, and all
amendments (including post-effective amendments) to such registration
statement, and all exhibits thereto and materials incorporated by reference
therein.
an. "STANDSTILL PERIOD" means, with respect to any Holder, a period of time
commencing on the Closing Date and terminating on _______, 2000 (the date
three years after the Closing Date).
ao. "TOTAL MARKET CAPITALIZATION" shall mean the sum of (i) the Company's total
Indebtedness, plus (ii) the product of (x) the number of issued and
outstanding shares of Common Stock, plus the number of shares of Common
Stock issuable upon conversion of issued and outstanding preferred stock
(other than convertible preferred stock subject to redemption at the option
of the holder) times (y) the Current Market Price.
ap. "U.S. GAAP" means United States generally accepted accounting principles
and practices in effect from time to time applied consistently throughout
the periods involved.
2. RESTRICTIONS ON TRANSFER.
a. REPRESENTATIONS AND WARRANTIES OF PGGM. (a) PGGM and DIHC hereby
represent, acknowledge, covenant and agree as follows: (i) the Shares
are being acquired for PGGM's and DIHC's own account for investment
and not with a view to any distribution or public offering within the
meaning of the Securities Act or any state securities law; (ii) the
Shares have not been registered under the Securities Act or any state
securities law; (iii) PGGM and DIHC is each an "accredited investor"
within the meaning of Rule 501 promulgated by the Commission pursuant
to the Securities Act; (iv) PGGM and DIHC have been furnished with all
information that PGGM or DIHC has requested for purposes of evaluating
the Company and each has had an opportunity to ask questions of and
receive answers from the Company regarding its business, assets,
results of operations, and financial condition; and (v) PGGM and DIHC
will not sell or otherwise transfer any of the Shares except upon the
terms and conditions specified herein.
b. LEGENDS. Except as provided in Section 2.4, each certificate
representing the Shares issued to PGGM and DIHC or transferred to a
subsequent Holder pursuant to Section 2.3 shall include, in addition
to the legends relating to provisions of the Company's articles of
incorporation, legends in substantially the following form, PROVIDED
that the first such legend shall not be required if such transfer is
being made in connection with a sale that is (i) pursuant to a Public
Offering or (ii) exempt from registration pursuant to Rule 144 under
the Securities Act or if the opinion of counsel referred to in
Section 2.3 is to the further effect that such legend is not required
in order to ensure compliance with the Securities Act; PROVIDED
FURTHER, that the second such legend shall not be required if
Sections 7.6 and 8 hereof do not apply to such subsequent Holder:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES ACT AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED
IN THE REGISTRATION RIGHTS AND VOTING AGREEMENT DATED AS OF _________, 1997,
AMONG THE ISSUER AND THE OTHER PARTY(IES) NAMED THEREIN, A COMPLETE AND CORRECT
COPY OF
WHICH IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE ISSUER AND WILL
BE FURNISHED TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
c. NOTICE OF TRANSFER. Prior to any proposed assignment, transfer or
sale of any Shares, the Holder of such Shares shall give written
notice to the Company of Holder's intention to effect such assignment,
transfer or sale, which notice shall set forth the date of such
proposed assignment, transfer or sale. Holder shall also furnish to
the Company a written agreement by the transferee that it is taking
and holding the same subject to the terms and conditions specified in
this Agreement and, except in transfers pursuant to a Public Offering
or under Rule 144 or Regulation S under the Securities Act, a written
opinion of Holder's counsel, in form reasonably satisfactory to the
Company, to the effect that the proposed transfer may be effected
without registration under the Securities Act.
d. TERMINATION OF RESTRICTIONs. The restrictions set forth in this
Section 2 shall terminate and cease to be effective with respect to
any of the Shares (i) upon the sale of any such Shares which has been
registered under the Securities Act or is made pursuant to Rule 144
under the Securities Act or (ii) upon receipt by the Company of an
opinion of counsel, which counsel and which opinion are reasonably
satisfactory to the Company, to the effect that compliance with such
restrictions is not necessary in order to comply with the Securities
Act with respect to the sale of the Shares. The restrictions with
respect to a Holder set forth in Sections 7.6 and 8 hereof shall
terminate upon the end of the Standstill Period. Whenever such
restrictions shall so terminate, the Holder of such Shares shall be
entitled to receive from the Company, without expense (other than
transfer taxes, if any), certificates for such Shares not bearing the
respective legends set forth in Section 2.2.
3. REGISTRATION UNDER SECURITIES ACT.
a. SHELF REGISTRATION.
i. Within 20 days after the Closing Date and upon the request of
PGGM, the Company will use its commercially reasonable efforts to
cause to be filed the Shelf Registration Statement providing for
the sale by the Holders of all of the Shelf Registrable
Securities in
accordance with the terms hereof and will use its commercially
reasonable efforts to cause such Shelf Registration Statement to
be declared effective by the Commission as soon as practicable
thereafter. The Company agrees to use its commercially
reasonable efforts to keep the Shelf Registration Statement with
respect to the Shelf Registrable Securities continuously
effective so long as Holder holds Shelf Registrable Securities.
Subject to Section 3.2(b) and Section 3.2(i), the Company further
agrees to amend the Shelf Registration Statement if and as
required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or any rules and
regulations thereunder; PROVIDED, HOWEVER, that the Company shall
not be deemed to have used its commercially reasonable efforts to
keep the Shelf Registration Statement effective during the
applicable period if it voluntarily takes any action that would
result in the Holders not being able to sell Shelf Registrable
Securities covered thereby during that period, unless such action
is required under applicable law or the Company has filed a
post-effective amendment to the Shelf Registration Statement and
the Commission has not declared it effective or except as
otherwise permitted by the last six sentences of Section 3.2(b).
The Holders will provide information reasonably requested by the
Company in connection with the Shelf Registration Statement as
promptly as practicable after receipt of such request. The "Plan
of Distribution" section of the Shelf Registration Statement
shall permit negotiated purchases, secondary distributions, block
trades, ordinary brokerage transactions or a combination of such
methods of sale, PROVIDED, HOWEVER, that the Company's
obligations under Sections 3.1 and 3.2 hereof shall not include
participation in underwritten offerings or other organized
distributions of securities, which obligations are limited to
registrations under Section 3.3 and 3.6 hereof.
ii. EXPENSES. The Company shall pay all Shelf Registration Expenses
in connection with the registration pursuant to Section 3.1(a).
The Holders shall pay all Selling Expenses and the fees and
disbursements of counsel representing the Holders, relating to
the sale or disposition of such Shelf
Registrable Securities pursuant to the Shelf Registration
Statement.
b. SHELF REGISTRATION PROCEDURES. In connection with the obligations of
the Company with respect to the Shelf Registration Statement
contemplated by Section 3.1 hereof, the Company shall:
i. prepare and file with the Commission, within the time period
set forth in Section 3.1(a) hereof, the Shelf Registration
Statement, which Shelf Registration Statement shall comply
as to form in all material respects with the requirements of
the applicable form and include all financial statements
required by the Commission to be filed therewith;
ii. subject to the last six sentences of this Section 3.2(b) and
Section 3.2(i) hereof, (i) prepare and file with the
Commission such amendments to such Shelf Registration
Statement as may be necessary to keep such Shelf
Registration Statement effective throughout the applicable
period; (ii) cause the Shelf Prospectus to be amended or
supplemented as required and to be filed as required by
Rule 424 or any similar rule that may be adopted under the
Securities Act; and (iii) respond as promptly as practicable
to any comments received from the Commission with respect to
the Shelf Registration Statement or any amendment thereto.
Notwithstanding anything to the contrary contained herein,
the Company shall not be required to take any of the actions
described in clauses (i), (ii) or (iii) in this
Section 3.2(b), Section 3.2(d) or Section 3.2(i) with
respect to the Shelf Registrable Securities (x) to the
extent that (i) in the reasonable opinion of the Company
(A) securities laws applicable to such sale would require
the Company to disclose material non-public information
("Non-Public Information") and (B) the disclosure of such
Non-Public Information would materially adversely affect the
Company; (ii) such sale would occur during the measurement
period for determining the amount of Common Stock, or the
amount of any other consideration the amount of which will
be based on the price of the Common Stock, in connection
with the acquisition of a business or assets by the Company
(a "Measurement Period"); or (iii) the Company is
contemplating an underwritten Public Offering of its
securities and in the reasonable opinion of the underwriters
such sale would interfere materially with such Public
Offering by the Company (a "Financing Period"); and the
Company delivers written notice to the Holders to the effect
that the Holders may not make offers or sales under the
Shelf Registration Statement for a period not to exceed
45 days from the date of such notice; PROVIDED, HOWEVER,
that the Company may deliver only four such notices under
this Section 3.2(b) and Section 3.4(a) within any
twelve-month period, PROVIDED, FURTHEr, that the Company may
deliver only two such notices under this Section 3.2(b) and
Section 3.4(a) within the twelve-month period immediately
following the expiration of the six-month period referred to
in Section 3.3(f)(i) hereof and (y) unless and until the
Company has received a written notice (a "Shelf Registration
Notice") from any Holder that such Holder intends to make
offers or sales under the Shelf Registration Statement as
specified in such Shelf Registration Notice; PROVIDED,
HOWEVER, that the Company shall have ten business days to
prepare and file any such amendment or supplement after
receipt of the Shelf Registration Notice. The Measurement
Period and Financing Period are collectively referred to
herein as the "Restricted Period." In the event the sale by
the Holders of Shelf Registrable Securities is deferred
because of the existence of Non-Public Information, the
Company will notify the Holders promptly upon such
Non-Public Information being included by the Company in a
filing with the Commission, being otherwise disclosed to the
public (other than through the actions of any Holder), or
ceasing to be material to the Company, and upon such notice
being given by the Company, the Holders shall again be
entitled to sell Shelf Registrable Securities as provided
herein. In the event the sale by the Holders of Shelf
Registrable Securities is deferred because it is proposed to
be made during a Restricted Period, the Company shall
specify, in notifying the Holders of the deferral of its
sale, when the Restricted Period will end, at which time the
Holders shall again be entitled to sell Shelf Registrable
Securities as provided herein. If the Restricted Period is
thereafter changed, the Company will promptly notify the
Holders of such change and upon the end of the Restricted
Period as so changed, the Holders will again be entitled to
sell Shelf Registrable Securities as provided herein. If an
agreement
to which such Restricted Period relates is terminated prior
to the end of the Restricted Period, the deferral period
hereunder shall end immediately and the Company shall
promptly notify the Holders of the end of the deferral
period;
iii. promptly furnish the Holders after a Holder has delivered a
Shelf Registration Notice to the Company, without charge, as
many copies of each Shelf Prospectus and any amendment or
supplement thereto in order to facilitate the public sale or
other disposition of the Shelf Registrable Securities; the
Company consents to the use of the Shelf Prospectus and any
amendment or supplement thereto by the Holders of Shelf
Registrable Securities in connection with the offering and
sale of the Shelf Registrable Securities covered by the
Shelf Prospectus or amendment or supplement thereto;
iv. use its commercially reasonable efforts to register or
qualify the Shelf Registrable Securities by the time the
Shelf Registration Statement is declared effective by the
Commission under all applicable state securities or blue sky
laws of such jurisdictions in the United States and its
territories and possessions as the Holders shall reasonably
request in writing, keep each such registration or
qualification effective during the period such Shelf
Registration Statement is required to be kept effective or
during the period offers or sales are being made by the
Holders after a Holder has delivered a Shelf Registration
Notice to the Company, whichever is shorter; PROVIDED,
HOWEVER, that in connection therewith, the Company shall not
be required to (i) qualify as a foreign corporation to do
business or to register as a broker or dealer in any such
jurisdiction where it would not otherwise be required to
qualify or register but for this Section 3.2(d),
(ii) subject itself to taxation in any such jurisdiction, or
(iii) file a general consent to service of process in any
such jurisdiction;
v. notify the Holders promptly and, if requested by a Holder,
confirm in writing, (i) when the Shelf Registration
Statement and any post-effective amendments thereto have
become effective, (ii) when any amendment or supplement to
the Shelf Prospectus has been filed with the
Commission, (iii) of the issuance by the Commission or any
state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or any
part thereof or the initiation of any proceedings for that
purpose, (iv) if the Company receives any notification with
respect to the suspension of the qualification of the Shelf
Registrable Securities for offer or sale in any jurisdiction
or the initiation of any proceeding for such purpose, and
(v) of the happening of any event during the period the
Shelf Registration Statement is effective as a result of
which (A) such Shelf Registration Statement contains any
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 not misleading or (B) the Shelf
Prospectus as then amended or supplemented contains any
untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
vi. use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Shelf
Registration Statement or any part thereof as promptly as
possible;
vii. promptly furnish to the Holders after a Holder has delivered
a Shelf Registration Notice to the Company, without charge,
at least one conformed copy of the Shelf Registration
Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits
thereto, unless requested);
viii. cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Shelf
Registrable Securities to be sold and not bearing any
Securities Act legend; and enable certificates for such
Shelf Registrable Securities to be issued for such numbers
of shares as the Holders may reasonably request at least two
business days prior to any sale of Shelf Registrable
Securities;
ix. subject to the last six sentences of Section 3.2(b) hereof,
upon the occurrence of any event contemplated by clause (v)
of Section 3.2(e) hereof, use its reasonable best efforts
promptly to prepare and file an amendment or a supplement to
the Shelf Prospectus or any document incorporated therein by
reference or prepare, file and obtain effectiveness of a
post-effective amendment to the Shelf Registration
Statement, or file any other required document, in any such
case to the extent necessary so that, as thereafter
delivered to the purchasers of the Shelf Registrable
Securities, such Shelf Prospectus as then amended or
supplemented will not contain any untrue statement of a
material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading;
x. make available for inspection by the Holders after a Holder
has provided a Shelf Registration Notice to the Company and
any counsel, accountants or other representatives retained
by the Holders all financial and other records, material
corporate documents and properties of the Company and cause
the officers, directors and employees of the Company to
supply all such material records, documents or information
reasonably requested by the Holders, counsel, accountants or
representatives in connection with the Shelf Registration
Statement; PROVIDED, HOWEVER, that such records, documents
or information which the Company determines in good faith to
be confidential and notifies the Holders, counsel,
accountants or representatives in writing that such records,
documents or information are confidential shall not be
disclosed by the Holders, counsel, accountants or
representatives unless (i) such disclosure is ordered
pursuant to a subpoena or other order from a court of
competent jurisdiction, or (ii) such records, documents or
information become generally available to the public other
than through a breach of this Agreement;
xi. a reasonable time prior to the filing of the Shelf
Registration Statement or any amendment thereto, or any
Shelf Prospectus or any amendment or supplement thereto,
provide copies of such document (not including any documents
incorporated by reference therein unless requested) to the
Holders; and
xii. use its reasonable best efforts to cause all Shelf
Registrable Securities to be listed on the New York Stock
Exchange at the time the Shelf Registration Statement is
declared effective.
The Company may require the Holders to furnish to the Company in writing such
information regarding the proposed distribution by the Holders as the Company
may from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations with respect
to the Shelf Registration Statement pursuant to Section 3.1 hereof and this
Section 3.2, the Holders covenant and agree that (i) they will not offer or sell
any Shelf Registrable Securities under the Shelf Registration Statement until a
Holder has provided a Shelf Registration Notice pursuant to Section 3.2(b) and
have received copies of the Shelf Prospectus as then amended or supplemented as
contemplated by Section 3.2(c) and notice from the Company that the Shelf
Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 3.2(e); (ii) upon receipt of any notice
from the Company contemplated by Section 3.2(b) or Section 3.2(e) (in respect of
the occurrence of an event contemplated therein), the Holders shall not offer or
sell any Shelf Registrable Securities pursuant to the Shelf Registration
Statement until the Holders receive copies of the supplemented or amended Shelf
Prospectus contemplated by Section 3.2(i) hereof and receive notice that any
post-effective amendment has become effective, and, if so directed by the
Company, the Holders will deliver to the Company (at the expense of the Company)
all copies in its possession, other than permanent file copies then in the
Holders' possession, of the Shelf Prospectus as amended or supplemented at the
time of receipt of such notice; (iii) upon the expiration of 60 days after the
first date on which offers or sales can be made pursuant to clause (i) above,
the Holders will not offer or sell any Shelf Registrable Securities under the
Shelf Registration Statement until they have again complied with the provisions
of clause (i) above; (iv) each Holder and any of such Holder's partners,
officers, directors or Affiliates, if any, will comply with the provisions of
Regulation M under the Exchange Act as applicable to them in connection with
sales of Shelf Registrable Securities pursuant to the Shelf Registration
Statement; (v) each Holder and any of such Holder's partners, officers,
directors or Affiliates, if any, will comply with the prospectus delivery
requirements of the Securities Act as applicable to them in connection with
sales of Shelf Registrable Securities pursuant to the Shelf Registration
Statement; and (vi) each Holder and any of such Holder's partners, officers,
directors or Affiliates, if any, will enter into such written agreements as the
Company shall reasonably request to ensure compliance with clauses (iv) and (v)
above.
c. DEMAND OFFERINGS.
i. REQUESTS FOR DEMAND OFFERING. PGGM, DIHC or a Holder or Holders
owning a majority of the Demand Offering Securities (the "Demand
Initiating Holder") may request the offering under the Securities
Act of all or any portion of the Demand Offering Securities held
by such Holders for sale in the manner specified in such request,
including an underwritten offering. Upon receipt of such request,
the Company will promptly, but in any event within 20 days, give
written notice of such requested registration to all Holders of
Demand Offering Securities, and thereupon, in accordance with
Section 3.4 hereof, the Company will use its reasonable best
efforts to effect the registration and sale of:
(1) the Demand Offering Securities which the Company has been so
requested to register by such Demand Initiating Holder;
(2) all other Demand Offering Securities which the Company has
been requested to register by the other Holders thereof by
written request delivered to the Company within 15 days
after the giving of such written notice by the Company, and
(3) all shares of Common Stock which the Company may elect to
register for its own account or for the account of others in
connection with the offering of Demand Offering Securities
pursuant to this Section 3.3.
Each initial request for a offering pursuant to this Section 3.3 shall specify
the number of Demand Offering Securities requested to be sold by the Demand
Initiating Holder, the method of disposition to be employed and the Current
Market Price of the Common Stock as of the date of such request. Any request
for an offering pursuant to this Section 3.3(a) shall be referred to herein as a
"Demand Offering Request" and all registrations requested pursuant to this
Section 3.3 are referred to herein as "Demand Offerings."
ii. NUMBER OF DEMAND OFFERINGS. The Company shall not be required
under this Section 3.3 (i) to effect more than one Demand
Offering in any twelve-month period or (ii) to effect more than
eight Demand Offerings in the aggregate.
Notwithstanding anything to the contrary contained herein, if
such method of disposition is a firm commitment underwritten
public offering, a registration shall count as a Demand Offering
only when all such Demand Offering Securities shall have been
sold pursuant thereto; PROVIDED, HOWEVER, that if a Demand
Prospectus filed by the Company pursuant to a Demand Offering
Request shall be abandoned or withdrawn at the behest of the
Demand Initiating Holder, then, unless the Holders shall,
promptly upon receipt of a request by the Company therefor
supported by an invoice setting forth the expenses in reasonable
detail, reimburse the Company for the Demand Offering Expenses in
respect of such prospectus attributable to the Holders, the
Company shall be deemed to have effected a Demand Offering.
iii. MINIMUM OFFERING AMOUNT. The Company shall not be required to
comply with this Section 3.3 unless the aggregate Current Market
Price of all Demand Offering Securities covered by the Demand
Offering Request and the Demand Offering Securities described in
Section 3.3(a)(ii) shall be $75 million or more (unless and to
the extent the Demand Initiating Holder shall hold less than $75
million of Demand Offering Securities, in which case such minimum
offering amount shall be equal to the amount of Demand Offering
Securities so held).
iv. SELECTION OF UNDERWRITERS. If the method of disposition
specified by PGGM shall be an underwritten public offering, the
Company may designate the managing underwriter of such offering,
subject to the approval of the Demand Initiating Holder which
approval shall not be unreasonably withheld.
v. PRIORITY ON DEMAND OFFERINGS. The Company shall be entitled to
include in any offering referred to in this Section 3.3, for sale
in accordance with the method of disposition specified by the
Demand Initiating Holder shares of Common Stock to be sold by the
Company for its own account or by other shareholders of the
Company for their account. Nonetheless, whether or not the
Company desires to include any such additional shares in a Demand
Offering, if the managing underwriters advise the Company in
writing that in their opinion the number of securities
requested to be included in such offering exceeds the maximum
number which can be included in such offering without adversely
affecting the marketability of the offering (the "Maximum
Number"), then the Company will limit the number of shares
included in such offering to the Maximum Number, and the shares
offered shall be selected in the following order of priority:
(i) first, Demand Offering Securities covered by the Demand
Offering Request and the Demand Offering Securities described in
Section 3.3(a)(ii), subject to the proviso set forth in
clause (iii) below, (ii) second, securities the Company proposes
to sell and (iii) third, securities requested to be included in
such registration pursuant to (A) the Stockholders' Agreement,
dated as of November 22, 1996, by and among the Company and the
New York State Teachers' Retirement System and (B) the
Stockholders' Agreement, dated as of November 7, 1996, by and
between the Company and Hexalon Real Estate, Inc., pro rata among
the holders thereof on the basis of the number of shares
requested to be included in such registration; provided that the
securities requested to be included pursuant to clauses (A) and
(B) shall not be reduced to less than one-third of the total
number of shares in such offering, and (iv) fourth, other
securities requested to be included in such registration.
vi. EXCEPTION. Anything in this Section 3.3 to the contrary
notwithstanding, the Company shall not be required to file a
Demand Prospectus in connection with a Demand Offering (i) within
six months after the closing date of a Demand Offering or the
effective date of any registration statement (other than pursuant
to Section 3.1 or a registration statement on Form S-8 with
respect to an employee benefit plan or a registration statement
on Form S-4 relating to securities to be issued in a merger or in
exchange for securities or assets of another Person) of the
Company or (ii) if counsel for the Company, reasonably acceptable
to the Demand Initiating Holder shall deliver an opinion to the
Holders to the effect that, pursuant to Rule 144 under the
Securities Act or otherwise, the Holders can publicly offer and
sell the Demand Offering Securities as to which sale has been
requested without registration under the Securities Act.
d. DEMAND OFFERING PROCEDURES. If and whenever the Company is required
by the provisions of Section 3.3 hereof to use its reasonable best
efforts to effect the sale of any of the Demand Offering Securities
under the Securities Act, the Company shall use its reasonable best
efforts to effect the registration and sale of the Demand Offering
Securities in accordance with the intended method of disposition
thereof and will, as expeditiously as possible:
i. within 45 days after receiving a request for a Demand Offering,
prepare and file with the Commission a Demand Prospectus as a
supplement to the Shelf Registration Statement with respect to
such Demand Offering Securities. Notwithstanding anything to the
contrary contained herein, the filing of such Demand Prospectus
may be delayed for a period not to exceed 45 days if (i) any of
the events specified in clause (x) of Section 3.2(b) hereof shall
have occurred, or (ii) the Company is engaged in any program for
the repurchase of Common Stock or other securities of the Company
and the Company provides written notice to the Demand Initiating
Holder; PROVIDED, HOWEVER, that the Company may deliver only four
notices under this Section 3.4(a) and 3.2(b) hereof within any
twelve-month period; PROVIDED, FURTHER, that the Company may
deliver only two such notices under this Section 3.4(a) and
Section 3.2(b) within the twelve-month period immediately
following the expiration of the six-month period referred to in
Section 3.3(f)(i) hereof.
ii. prior to the filing described in paragraph (a) above, furnish to
the Holders copies of the Demand Prospectus and any amendments or
supplements thereto, which documents shall be subject to the
approval of the Holders only with respect to any statement in the
Demand Prospectus which relates to the Holders;
ii. notify the Holders promptly and, if requested by the Holders,
confirm in writing, (i) when the Demand Prospectus has been filed
with the Commission, (ii) when any amendment or supplement to the
Demand Prospectus has been filed with the Commission, (iii) of
the issuance by the Commission or any state securities authority
of any stop order suspending the effectiveness of the Shelf
Registration Statement or any part thereof or the initiation
of any proceedings for that purpose, (iv) if the Company receives
any notification with respect to the suspension of the
qualification of the Demand Offering Securities for offer or sale
in any jurisdiction or the initiation of any proceeding for such
purpose, and (v) of the happening of any event during the period
of the offering pursuant to the Demand Prospectus as a result of
which (A) such Shelf Registration Statement contains any 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 not misleading or (B) the Demand Prospectus as then
amended or supplemented contains any untrue statement of a
material fact or omits to state any material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
iv. make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration
Statement or any part thereof as promptly as possible;
v. furnish to the Holders after delivery of a Demand Offering
Request to the Company, without charge, at least one conformed
copy of the Shelf Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
vi. prepare and file with the Commission such amendments and
supplements to such Shelf Registration Statement and the Demand
Prospectus used in connection therewith as may be necessary and
comply with the provisions of the Securities Act with respect to
the disposition of all Demand Offering Securities covered by such
Demand Prospectus in accordance with the Holders' intended method
of disposition set forth in such Demand Prospectus for such
period;
vii. furnish to the Holders and to each underwriter such number of
copies of the Shelf Registration Statement and the Demand
Prospectus included therein (including each preliminary
prospectus) and such other documents, as such persons may
reasonably request in order to facilitate
the public sale or other disposition of the Demand Offering
Securities covered by such Demand Prospectus;
viii. use its reasonable best efforts to register or qualify the
Demand Offering Securities covered by such Demand Prospectus
under the securities or blue sky laws of such jurisdictions
as the Holders or, in the case of an underwritten public
offering, the managing underwriter, shall reasonably
request;
ix. provide a transfer agent and registrar, which may be a
single entity, for all Demand Offering Securities;
x. use its reasonable best efforts to cause all Demand Offering
Securities to be listed on the New York Stock Exchange;
xii. furnish on the date that Demand Offering Securities are
delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such
registration, addressed to the underwriters, stating that
the Shelf Registration Statement has become effective under
the Securities Act and that (A) to the best knowledge of
such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under
the Securities Act, (B) the Shelf Registration Statement,
the related Demand Prospectus, and each amendment or
supplement thereto, comply as to form in all material
respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission
thereunder and that such counsel does not believe that any
such Shelf Registration Statement, Demand Prospectus,
amendment or supplement contains a misstatement of a
material fact or an omission to state a material fact
required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under
which they were made, not misleading (except that such
counsel need express no opinion as to financial statements
or financial or statistical data contained therein) and
(C) to such other effects as may reasonably be requested by
counsel for the underwriters or by the Holders or their
counsel, and (ii) a
"cold comfort" letter dated such date from the independent
public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public
accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial
statements of the Company included in the Shelf Registration
Statement or the Demand Prospectus, or any amendment or
supplement thereto, comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act, and such letter shall additionally cover
such other financial matters (including information as to
the period ending no more than five business days prior to
the date of such letter) with respect to the registration in
respect of which such letter is being given as such
underwriters may reasonably request; and
xii. make available for inspection by the Holders after the
Demand Initiating Holder has provided a Demand Offering
Request to the Company and any counsel, accountants or other
representatives retained by the Holders all financial and
other material records, pertinent corporate documents and
properties of the Company and cause the officers, directors
and employees of the Company to supply all such material
records, documents or information reasonably requested by
the Holders, counsel, accountants or representatives in
connection with the Demand Prospectus; PROVIDED, HOWEVER,
that such records, documents or information which the
Company determines in good faith to be confidential and
notifies the Holders, counsel, accountants or
representatives in writing that such records, documents or
information are confidential shall not be disclosed by
Holders, counsel, accountants or representatives unless
(i) such disclosure is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, or
(ii) such records, documents or information become generally
available to the public other than through a breach of this
Agreement.
For purposes of paragraphs (a) and (f) of this Section 3.4, the period of
distribution of Demand Offering Securities in a firm commitment underwritten
public offering shall be deemed to be that period during which the underwriters
in such offering require in an underwriting agreement in the form customarily
used by such underwriters for comparable transactions that the Company keep a
registration statement effective to permit each underwriter to complete the
distribution of all securities purchased by it,
and the period of distribution of Demand Offering Securities in any other
registration shall be deemed to extend until the earlier of the sale of all
Demand Offering Securities covered thereby or nine months after the effective
date thereof.
In connection with each registration hereunder, each Holder will furnish to the
Company in writing such information with respect to itself and the proposed
distribution by itself as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws. Reasonable
compliance with the obligation to furnish such information shall be a condition
to the rights afforded such Holder hereunder. In addition, each Holder and any
of its partners, officers, directors or Affiliates, if any, (i) will comply with
the provisions of Regulation M as applicable to them in connection with sales of
Demand Offering Securities pursuant to the Demand Prospectus; (ii) will comply
with the prospectus delivery requirements of the Securities Act as applicable to
them in connection with sales of Demand Offering Securities pursuant to the
Demand Prospectus; and (iii) will enter into such written agreements as the
Company shall reasonably request to ensure compliance therewith.
In connection with each registration pursuant to Section 3.3 hereof covering an
underwritten public offering, the Company agrees to enter into a written
agreement with the managing underwriter selected in the manner herein provided
in such form and containing such provisions as are customary in the securities
business for such an arrangement between major underwriters and companies of the
Company's size and investment stature; PROVIDED that such agreement shall not
contain any such provision applicable to the Company which is inconsistent with
the provisions hereof; PROVIDED, FURTHER that the time and place of the closing
under said agreement shall be as mutually agreed upon between the Company and
such managing underwriter.
e. DEMAND OFFERING EXPENSES. In connection with any Demand Offering, the
Company shall pay all Demand Offering Expenses and the Holders shall
pay all Selling Expenses applicable to the shares sold by the Holders.
f. PIGGYBACK REGISTRATIONS.
i. RIGHT TO PIGGYBACK. In the event that a Holder is not permitted
to effect sales under the Shelf Registration Statement under
Section 3.2(b)(x)(iii) hereof or the Holders are not permitted to
effect Demand Offering due to Section 3.4(a)(i), Holders shall
become entitled to the rights of this Section 3.6. The Company
will promptly (but in any event within 30 days) give written
notice to the Holders of its intention to effect such
registration and a description of any underwriting agreement to
be entered into with respect thereto and will include in such
registration all Shelf Registrable Securities or Demand Offering
Securities with respect to which the Company has received written
requests for inclusion within 15 days after the receipt of the
Company's notice (a "Piggyback Registration Request"); PROVIDED,
HOWEVER, that the Company shall not be required to include Shelf
Registrable Securities or Demand Offering Securities in the
securities to be registered pursuant to a registration statement
on any form which limits the amount of securities which may be
registered by the issuer and/or selling security holders if, and
to the extent that, such inclusion would make the use of such
form unavailable. In the event that any Piggyback Registration
shall be, in whole or in part, an underwritten public offering of
Common Stock, the Holders shall agree that such Demand Offering
Securities or Shelf Registrable Securities are to be included in
the underwriting on the same terms and conditions as the shares
of Common Stock otherwise being sold through underwriters under
such registration.
ii. PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that
in their opinion the number of shares requested to be included in
such registration exceeds the Maximum Number, the Company will
limit the number of shares included in such registration to the
Maximum Number, and the shares registered shall be selected in
the following order of priority: (i) first, securities the
Company proposes to sell, subject to the proviso set forth in
clause (ii) below, (ii) second, (A) Shelf Registrable Securities
or Demand Offering Securities covered by Piggyback Registration
Requests, and (B) securities requested to be included in such
registration pursuant to (x) the Stockholders' Agreement, dated
as of November 22, 1996, by and among the Company and the New
York State Teachers' Retirement System and (y) the Stockholders'
Agreement, dated as of November 7, 1996, by and between the
Company and Hexalon Real Estate, Inc., pro rata among the holders
thereof on the basis of the number of shares requested to be
included in such registration; provided that the securities
requested to be included pursuant to clauses (x) and (y) shall
not be reduced to less than one-third of the total number of
shares in such offering and (iii) third, other securities
requested to be included in such registration.
iii. PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise
the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds
the Maximum Number, the Company will include in such registration
the shares requested to be included therein by the holders
requesting such registration and the Shelf Registrable Securities
and Demand Offering Securities covered by Piggyback Registration
Requests and any other securities requested to be included in
such registration, pro rata among the holders thereof on the
basis of the number of shares requested to be included in such
registration; provided, however, that if the holders requesting
registration are doing so pursuant to demand registration rights
of such holders, such holders' shares shall take priority over
any Shelf Registrable Securities and Demand Offering Securities
and any other securities requested to be included, which shall be
included on a pro rata basis, subject to the proviso set forth in
Section 3.6(b)(ii)(B).
g. INDEMNIFICATION.
i. INDEMNIFICATION BY THE COMPANY. To the extent permitted by law,
the Company shall indemnify and hold harmless the seller of any
Shares covered by any registration statement filed pursuant to
Section 3, its directors, trustees and officers, each other
person who participates as an underwriter in the offering or sale
of such securities and each other person, if any, who controls
such seller or any such underwriter within the meaning of the
Securities Act against any losses, claims, damages, liabilities
or expenses, joint or several, to which such seller or any such
director, trustee or officer or participating or controlling
person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses
(or related actions or proceedings) arise out of or are based
upon (x) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which
such securities
were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained in
such registration statement, or any amendment or supplement to
such registration statement, or any document incorporated by
reference in such registration statement, or (y) any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Company will reimburse such seller, and each
such director, trustee, officer, participating person and
controlling person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, liability, action or proceeding, provided
that the Company shall not be liable in any such case (1) to the
extent that any such loss, claim, damage, liability or expense
(or action or proceeding in respect thereof) arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company
through an instrument duly executed by such seller or any such
director, trustee, officer, participating person or controlling
person specifically stating that it is for use in the preparation
of such registration statement or (2) to the extent any amount
paid in settlement of any such loss, claim, damage, liability or
action of such settlement is effected without the written consent
of the Company (which consent shall not be unreasonably
withheld). Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such
seller or any such director, trustee, officer, participating
person or controlling person and shall survive the transfer of
such securities by such seller. The Company shall agree to make
provision for contribution relating to such indemnity as shall be
reasonably requested by any seller of Shares or the underwriters.
ii. INDEMNIFICATION BY THE SELLERS. The Company may require, as a
condition to including any Shares in any registration statement
filed pursuant to Section 3, that the Company shall have received
an undertaking satisfactory to it from
each prospective seller of such securities, severally and not
jointly, to indemnify and hold harmless (in the same manner and
to the same extent as set forth in Section 3.6(a)) the Company,
each director of the Company, each officer of the Company who
shall sign such registration statement and each other person, if
any, who controls the Company within the meaning of the
Securities Act, with respect to any untrue statement in or
omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus included in
such registration statement, or any amendment or supplement to
such registration statement, of a material fact if such statement
or omission was made in reliance upon and in conformity with
written information furnished to the Company through an
instrument duly executed by such seller specifically stating that
it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer or
controlling person and shall survive the transfer of such
securities by such seller.
iii. INDEMNIFICATION PROCEDURE. Promptly after receipt by any party
entitled to indemnification pursuant to Section 3.7(a) or 3.7(b)
of this Agreement (an "Indemnified Party") of notice by a third
party of any complaint or the commencement of any action or
proceeding with respect to which indemnification is being sought
hereunder, such Indemnified Party shall notify the party
obligated to provide such indemnification (the "Indemnifying
Party") of such complaint or of the commencement of such action
or proceeding; PROVIDED, HOWEVER, that the failure to so notify
the Indemnifying Party shall not relieve the Indemnifying Party
from liability for such claim arising otherwise than under this
Agreement, and such failure to so notify the Indemnifying Party
shall relieve the Indemnifying Party from liability which the
Indemnifying Party may have hereunder with respect to such claim
if, but only if, and only to the extent that, such failure to
notify the Indemnifying Party results in the forfeiture by the
Indemnifying Party of material rights and defenses otherwise
available to the Indemnifying Party with respect
to such claim. The Indemnifying Party shall have the right, upon
written notice to the Indemnified Party, to assume the defense of
such action or proceeding, including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment
of the fees and disbursements of such counsel. In the event,
however, that the Indemnifying Party declines or fails to assume
the defense of the action or proceeding or to employ counsel
reasonably satisfactory to the Indemnified Party, in either case
in a timely manner, then such Indemnified Party may employ
counsel to represent or defend it in any such action or
proceeding and the Indemnifying Party shall pay the reasonable
fees and disbursements of such counsel as incurred; PROVIDED,
HOWEVER, that the Indemnifying Party shall not be required to pay
the fees and disbursements of more than one counsel for all
Indemnified Parties in any jurisdiction in any single action or
proceeding. In any action or proceeding with respect to which
indemnification is being sought hereunder, the Indemnified Party
or the Indemnifying Party, whichever is not assuming the defense
of such action, shall have the right to participate in such
litigation and to retain its own counsel at such party's own
expense. The Indemnifying Party or the Indemnified Party, as the
case may be, shall at all times use reasonable best efforts to
keep the Indemnifying Party or the Indemnified Party, as the case
may be, reasonably apprised of the status of the defense of any
action, the defense of which it is maintaining and to cooperate
in good faith with the Indemnifying Party or the Indemnified
Party, as the case may be, with respect to the defense of any
such action.
No Indemnified Party may settle or compromise any claim or consent to the entry
of any judgment with respect to which indemnification is being sought hereunder
without the prior written consent of the Indemnifying Party, unless such
settlement, compromise or consent includes an unconditional release of the
Indemnifying Party from all liability arising out of such claim. An
Indemnifying Party may not, without the prior written consent of the Indemnified
Party, settle or compromise any claim or consent to the entry of any judgment
with respect to which indemnification is being sought hereunder unless such
settlement, compromise or consent includes an unconditional release of the
Indemnified Party from all liability arising out of such claim and does not
contain any equitable order, judgment or term which in any manner affects,
restrains or interferes with the business of the Indemnified Party or any of the
Indemnified Party's affiliates.
In the event an Indemnified Party shall claim a right to payment pursuant to
this Agreement, such Indemnified Party shall send written notice of such claim
to the appropriate Indemnifying Party. Such notice shall specify the basis for
such claim. As promptly as possible after the Indemnified Party has given such
notice, such Indemnified Party and the appropriate Indemnifying Party shall
establish the merits and amount of such claim (by mutual agreement or otherwise)
and, within five business days of the final determination of the merits and
amount of such claim, the Indemnifying Party shall deliver to the Indemnified
Party immediately available funds in an amount equal to such claim as determined
hereunder.
If for any reason the indemnification provided for in this Section 3.7 is
unavailable to an Indemnified Party or is insufficient to hold it harmless as
contemplated by this Section 3.7, then the Indemnifying Party shall contribute
to the amount paid or payable by the Indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the Indemnified Party and the Indemnifying Party, as well as
any other relevant equitable considerations; provided that in no event shall the
liability of any Holder for such contribution and indemnification exceed, in the
aggregate, the dollar amount of the proceeds received by such Holder upon the
sale of Shares giving rise to such indemnification and contribution obligations.
The obligations of the parties under this Section 3.7 shall be in addition to
any liability which any party may otherwise have to any other party.
h. LIMITATIONS ON REGISTRATION RIGHTS OF OTHERS. The Company
represents and warrants that, except pursuant to this Agreement
and pursuant to rights granted pursuant to the agreements set
forth on Exhibit A hereto, it has not granted to any Person the
right to request or require the Company to register any
securities issued by the Company.
4. RULE 144. The Company shall comply with the requirements of Rule 144
under the Securities Act, as such Rule may be amended from time to
time (or any similar rule or regulation hereafter adopted by the
Commission), regarding the availability of current public information
to the extent required to enable any Holder of Shares to sell Shares
without registration under the Securities Act pursuant to Rule 144 (or
any similar rule or regulation). Upon the request of any Holder of
Shares, the Company will deliver to such Holder a written statement as
to whether it has complied with such requirements.
5. AMENDMENTS AND WAIVERS. This Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall
have obtained the written consent to such amendment, action or
omission to act, of the Holder or Holders of a majority of the Shares
(and, in the case of any amendment, action or omission to act which
adversely affects any specific Holder of Shares or a specific group of
Holders of Shares, the written consent of each such Holder or Holders
of a majority of the Shares held by such group). Each Holder of any
Shares at the time shall be bound by any consent authorized by this
Section 5.
6. NOMINEES FOR BENEFICIAL OWNERS. In the event that any Shares are held
by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its election, be treated as the Holder of such Shares
for purposes of any request or other action by any Holder or Holders
of Shares pursuant to this Agreement or any determination of any
number or percentage of shares of Shares held by any Holder or Holders
of Shares contemplated by this Agreement. If the beneficial owner of
any Shares so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such
Shares.
7. COVENANTS OF THE PARTIES.
a. BOARD OF DIRECTORS.
i. So long as PGGM and DIHC and their respective Affiliates own
in the aggregate 5% or more of the issued and outstanding
shares of Common Stock, subject to the rights of the
stockholders of the Company and the requirements of Nevada
law, the Company shall take all action necessary to nominate
for election to the board of directors of the Company (the
"Board") at any annual or special meeting of stockholders at
which directors are being elected (or in connection with a
written consent in lieu of a meeting pursuant to which
directors are proposed to be elected) such persons as are
necessary to ensure that after such meeting (assuming all
nominees are elected) two members of the Board are "PGGM
Directors" (as hereinafter defined). For purposes of this
Agreement, a "PGGM Director" shall be an individual
nominated by PGGM.
ii. From the date hereof until the earlier to occur of (i) the
date as of which PGGM and DIHC and their respective
Affiliates own in the aggregate less than 25% of the issued
and outstanding shares of Common Stock or (ii) ________,
2002 (the date five years after the Closing Date), subject
to the rights of the stockholders of the Company and the
requirements of the Nevada law:
(1) the Company shall take all action necessary to ensure
that one PGGM Director is appointed to the board
affairs committee of the Board (the "Committee").
(2) All nominees for election as directors of the Company
by the Board (other than Incumbent Directors and PGGM
Directors nominated pursuant to Section 7.1(a)) shall
be persons not affiliated with PGGM or DIHC or any of
their respective Affiliates and shall be made with the
approval of a majority of the members of the Committee,
which majority includes the approval (which will not be
unreasonably withheld) of the PGGM Director serving on
the Committee;
(3) PGGM and DIHC shall vote (or provide written consent
with respect to) all shares of Common Stock over which
it exercises voting authority in favor of the persons
nominated as PGGM Directors pursuant to Section 7.1(a)
and all nominees nominated in accordance with
Section 7.1(b)(ii) and all Incumbent Directors
nominated for election as directors of the Company by
the Board;
(4) In the event of any vacancy on the Board, whether
caused by a director's resignation, removal, death or
otherwise, the Company shall take all action necessary
to ensure that the successor to the director whose
absence from the Board caused such vacancy shall be a
PGGM Director if the director who caused such vacancy
was a PGGM Director; and
(5) The Company shall not increase the number of directors
constituting the full Board without the prior written
consent of PGGM.
iii. So long as PGGM and DIHC and their respective Affiliates own
in the aggregate 2.5% or more of the issued and
outstanding shares of Common Stock, the Company shall not
without the prior written consent of PGGM modify the policy
of the Company with respect to its interest in Xxx Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx, adopted at a meeting of the Board
on August 13, 1997.
b. LEVERAGE RATIO. So long as PGGM and DIHC and their respective
Affiliates own in the aggregate 2.5% or more of the issued and
outstanding shares of Common Stock, the Company shall at all
times maintain a Leverage Ratio not in excess of 0.45 to 1;
PROVIDED, HOWEVER, that notwithstanding the foregoing, (i) the
Company may at any time incur Indebtedness in an amount which
does not exceed the principal amount of outstanding Indebtedness
of the Company extended, refinanced, renewed or replaced with the
proceeds thereof, plus any costs associated with the extension
refinancing, renewal or replacement, even if such incurrence
causes the Leverage Ratio to exceed 0.45 to 1, (ii) the Company
may incur Indebtedness if, as of the date on which the Company
enters into a binding commitment with respect to such
Indebtedness, the Leverage Ratio including such Indebtedness did
not exceed 0.45 to 1 and (iii) with respect to lines of credit,
the Company may incur Indebtedness under such line, if, as of the
date the Company enters into the line of credit, the Leverage
Ratio including the entire amount of Indebtedness available under
such line did not exceed 0.45 to 1.
c. ISSUANCES OF COMMON STOCK. From the date hereof until ________,
1998 (the date six months after the Closing Date), the Company
shall not issue or sell any shares of Common Stock or other
Equity Securities, except at a price per share of Common Stock
equal to or greater than $16.00 (appropriately adjusted for stock
dividends, stock splits and the like), except in connection with
(i) the conversion of securities or Indebtedness of the Company
into Common Stock by Deutsche Bank AG, (ii) the conversion of
promissory notes of the Company held by Xxxxx Colorado Limited,
(iii) the Company's stock option or management incentive
compensation plans, (iv) the Company's dividend reinvestment
plan, and (v) stock splits or stock dividends.
d. DOMESTIC REIT STATUS. So long as PGGM and DIHC and their
respective Affiliates own in the aggregate 2.5% or more of the
issued and outstanding shares of Common Stock, the Company shall
not issue any Equity Securities in connection with any Public
Offering or other sale to any Non-U.S. Person (as defined in
Section 9.02 of the Charter Amendment), other than in connection
with stock splits or stock dividends or under the Company's
dividend reinvestment plan or stock option or management
incentive compensation plans; provided, however, that the
Company, in connection with any Public Offering of Equity
Securities, may issue and sell up to 15% of the securities issued
in such offering to Non-U.S. Persons.
e. HOLDBACK AGREEMENTS. Each Holder agrees, if so requested prior
to December 31, 1998, by the managing underwriter in any Public
Offering by the Company, not to effect any sale or distribution
of Common Stock (other than as part of such Public Offering)
within such periods prior to and after the effective date of such
registration statement as the managing underwriter may request
and as may be required of executive officers and directors of the
Company after the effective date of such registration statement;
provided that no Holder shall be required to enter into more than
one such agreement. After December 31, 1998, each Holder will
consider entering into such agreements if so requested.
f. RESTRICTIONS ON TRANSFER. During the Standstill Period, any
Holder and its Affiliates owning 25% or more of the issued and
outstanding shares of Common Stock, shall not assign, transfer or
sell any Shares to any Person or such Person's Affiliates (other
than a Permitted Transferee that agrees in writing to be bound by
the provisions of this Agreement) in any single transaction or
series of related transactions if, after such transaction or
transactions, such Person and such Person's Affiliates would own
more than 10% of the then issued and outstanding shares of Common
Stock (other than transfers of Shares from DIHC to PGGM on or
prior to ____________, 1998 (the date three months after the
Closing Date)).
g. OWNERSHIP LIMIT. The Company has taken all action necessary to
ensure that issuance of the Shares to DIHC, DIHC Market Square,
Inc. and PGGM pursuant to the Purchase Agreement and the Loan
Agreement shall not be deemed a violation of Article 8 of the
Company's articles of incorporation. Whenever PGGM or DIHC (or
DIHC Market Square, Inc.) proposes to transfer any Shares to any
Person, in accordance with the provisions of Section 8.03 of the
articles of incorporation of the Company, the Board shall
determine whether the proposed transfer would jeopardize the
Company's status as a real estate investment trust
(a "REIT") under Section 856 of the Internal Revenue Code of
1986, as amended. If the Board determines that it would not so
jeopardize the Company's REIT status, or if it receives an
opinion of counsel, which counsel and opinion are reasonably
satisfactory to the Board, to the effect that such proposed
transfer will not jeopardize the Company's status as a REIT, the
Board shall determine that such transferee will not be treated as
a "Person" within the meaning of Section 8.03(b) of the Company's
articles of incorporation and therefore the ownership of Shares
by such transferee will be exempt from the restrictions imposed
by Article 8 of the Company's articles of incorporation. If the
Board determines that the proposed transfer would jeopardize the
Company's REIT status, the Company shall provide a written
explanation to DIHC and PGGM of the basis for its determination
and shall provide reasonable access to information regarding the
Company's shareholders to DIHC and PGGM.
h. TRANSFERS TO PGGM. The Company shall take all action necessary
to ensure that any transfer of Shares from DIHC or DIHC Market
Square, Inc. to PGGM shall not be deemed a violation of Article 8
or Section 9.01 of the Company's articles of incorporation.
i. SHARE REPURCHASES. So long as DIHC and PGGM and their respective
Affiliates own in the aggregate 25% or more of the issued and
outstanding shares of Common Stock, in the event the Company
proposes to repurchase any shares of Common Stock from any holder
thereof owning together with its Affiliates 5% or more of the
issued and outstanding shares of Common Stock, DIHC and PGGM
shall have the right to require the Company to repurchase a
number of shares of Common Stock held by DIHC and PGGM equal to
the product of (i) the total number of shares proposed to be
repurchased and (ii) a fraction, the numerator of which is
(A) the number of Shares owned by DIHC and PGGM and their
respective Affiliates and the denominator of which is (B) the sum
of the number of shares of Common Stock owned by such holder plus
the number of Shares owned by DIHC and PGGM and their respective
Affiliates.
8. STANDSTILL. During the Standstill Period, any Holder that together
with its Affiliates owns 25% or more of the issued and outstanding
shares of Common Stock shall not:
i. directly or indirectly, purchase or otherwise acquire, or
propose or offer to purchase or otherwise acquire, any
Equity Securities whether by tender offer, market purchase,
privately negotiated purchase, Business Combination or
otherwise, if, immediately after such purchase or
acquisition, the Holder Interest of such Holder would equal
or exceed the Initial Percentage;
ii. directly or indirectly propose to the Company or any Person
a Business Combination;
iii. make, or in any way participate, directly or indirectly, in
any "solicitation" of "proxies" to vote (as such terms are
used in the rules promulgated by the Commission under
Section 14(a) of the Exchange Act) or seek to advise,
encourage or influence any person or entity with respect to
the voting of any shares of capital stock of the Company,
initiate, propose or otherwise solicit stockholders of the
Company for the approval of one or more stockholder
proposals or induce or attempt to induce any other Person to
initiate any stockholder proposal; or
iv. deposit any Equity Securities into a voting trust or subject
any Equity Securities to any arrangement or agreement with
respect to the voting of such securities or form, join or in
any way participate in a "group" (within the meaning of
Section 13(d)(3) of the Exchange Act) with respect to any
Equity Securities, other than as expressly set forth in
Section 7 hereof.
Nothing in this Section 8 shall limit the ability of PGGM Directors to function
in their capacities as members of the Board. The provisions of this Section 8
may be waived by the Company only upon the approval of a majority of the Board,
excluding all PGGM Directors and shall not be applicable to actions approved by
the majority of the Board, excluding all PGGM Directors in circumstances in
which the PGGM Directors are "interested directors" under Section 78.140 of the
Nevada General Corporation Law.
9. ASSIGNMENT. This Agreement shall not be assignable by the parties
hereto, except (i) by PGGM, DIHC or any Holder pursuant to a transfer
of Shares permitted hereunder to a Permitted Transferee that agrees in
writing to be bound by the terms hereof (including, without
limitation, Section 7.6 and 8, if applicable) and (ii) the rights to
cause the Company to register Shares pursuant to Section 3 may be
assigned by
PGGM, DIHC or any Holder, but only together with all obligations of
Holders under Section 3 and Section 7.5, to a transferee of Shares
representing at least 1% of the issued and outstanding shares of
Common Stock, provided that, within a reasonable time after such
transfer, the Company is furnished with written notice of the name and
address of such transferee or assignee and the securities with respect
to which such registration rights are being assigned. Notwithstanding
any transfer of Shares in connection with an assignment permitted by
this Section 9, the transferor shall comply with the obligations set
forth in Section 2 hereof.
10. MISCELLANEOUS. This Agreement constitutes the sole understanding of
the parties hereto with respect to the subject matter hereof;
provided, however, that this provision is not intended to abrogate any
other written agreement between or among the parties executed with or
after this Agreement or any written agreement pertaining to another
subject matter. No amendment of this Agreement shall be binding
unless made in writing and duly executed by the parties hereto. This
Agreement shall be construed in accordance with and governed by the
laws of the State of New York without regard to conflict of laws
principles thereof. No provision of this Agreement shall be construed
against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority or by any board of
arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision. Unless otherwise
expressly provided herein, all references in this Agreement to
Section(s) shall refer to the Section(s) of this Agreement. The
headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning of this Agreement.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute
one instrument.
11. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by courier service, by cable, by
telecopy, by telegram, by telex or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties
at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this
Section 11):
i. if to PGGM:Pensioenfonds PGGM
Xxxxxxxxx-Xxxxx 000
0000 XX Xxxxx
Xxx Xxxxxxxxxxx
P. O. Xxx 000
0000 XX Xxxxx
Xxx Xxxxxxxxxxx
Telecopy: 011 (31.30) 696-3388
Attention: Mr. Jan van der Vlist
Xx. Xxxxxx X. van de Puttelaar
with a copy to:Xxxxxxxx & O'Neil, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention:Xxxxxx X. Xxxxxx, Esq.
ii. if to DIHC:200 Xxxxxxxx Xxxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Xx. Xxxxxxx X. Xxxxxxx
with a copy to:Xxxxxxxx & O'Neil, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention:Xxxxxx X. Xxxxxx, Esq.
iii. if to the Company:126 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention:Xx. Xxxx X. Xxxxx
with a copy to:King & Spalding
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention:Xxxxxxx X. Xxxxx, Esq.
iv. If to any other Holder to the address set forth in the
notice referred to in Section 9 hereof.
12. REMEDY. In the event that the Company materially breaches its
obligations to PGGM under Sections 7.1 and 7.2 hereof and such breach
continues for a period of 30 days after PGGM gives the Company written
notice of such breach, the obligations of PGGM under Sections 7.5, 7.6
and 8 shall thereafter be suspended for such period of time as such
breach continues; provided, however, that upon any such breach being
cured by the Company or waived by PGGM, PGGM shall again be obligated
to comply with the provisions of Sections 7.5, 7.6 and 8.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the date first above written.
CORNERSTONE PROPERTIES INC.
By:____________________________
Name:__________________________
Title:_________________________
DUTCH INSTITUTIONAL HOLDING
COMPANY, INC.
By:____________________________
Name:__________________________
Title:_________________________
STICHTING PENSIOENFONDS VOOR DE GEZONDHEID,
GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN
By:____________________________
Name:__________________________
Title:_________________________
By:____________________________
Name:__________________________
Title:_________________________
[Signature Page to Registration Rights and Voting Agreement]
EXHIBIT A
TO REGISTRATION RIGHTS AND VOTING AGREEMENT
-------------------------------------------
Stockholders' Agreement dated November 22, 1996, between the Company and New
York State Teachers' Retirement System.
Stockholders' Agreement dated November 7, 1996, between the Company and Hexalon
Real Estate, Inc.
Convertible Promissory Note dated January 1, 1996 issued by the Company to Xxxxx
Colorado Limited.
Letter Agreement dated July 10, 1995 between the Company and Deutsche Bank AG.
