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STOCKHOLDERS' AGREEMENT, dated as of November 22, 1996, by and
among CORNERSTONE PROPERTIES INC., a Nevada corporation (the "Company"), the
NEW YORK STATE TEACHERS' RETIREMENT SYSTEM (the "Lead Purchaser") and the
purchasers of 8% Preferred Stock (as defined below) which may become party
hereto from time to time (each individually a "Stockholder", and collectively,
together with the Lead Purchaser, the "Stockholders").
R E C I T A L S
WHEREAS the Lead Purchaser is purchasing 689,655 shares of the
1,034,483 authorized shares of the 8% Cumulative Convertible Preferred Stock,
without par value, of the Company (the "8% Preferred Stock"), pursuant to that
certain Preferred Stock Purchase Agreement, dated November 22, 1996 (the
"Purchase Agreement"), between the Company and the Lead Purchaser; and
WHEREAS the Company and the Lead Purchaser wish to set forth
certain agreements regarding their relationship to which they and other
purchasers of 8% Preferred Stock shall be bound.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties and conditions set forth in this Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions and References. For purposes of
this Agreement, in addition to the definitions set forth above and elsewhere
herein, the following terms shall have the following respective meanings:
"Affiliate", with respect to any Person, means any other
Person directly or indirectly controlling, controlled by or under
common control with, such Person. For purposes of this definition,
"control" (including with correlative meanings, the terms
"controlling", "controlled by" or "under common control with"), as used
with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership
of voting securities or by contract or otherwise.
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"Approved Purchaser" shall have the meaning specified in the
Certificate of Designations.
"Certificate of Designations" means the Certificate of
Designations of the voting powers, designation, preferences and
relative, optional or other special rights and qualifications,
limitations and restrictions of the 8% Cumulative Convertible
Preferred Stock.
"Closing Date" means November 22, 1996.
"Commission" means the Securities and Exchange Commission, and
any successor commission or agency having similar powers.
"Common Stock" shall mean the common stock of the Company,
without par value.
"Conversion Stock" shall mean the Common Stock or other
securities issued on conversion of the 8% Preferred Stock.
"Encumbrance" means any lien, security interest, pledge,
claim, or option, right of first refusal, marital right or other
encumbrance with respect to any Preferred Share or share of Conversion
Stock.
"1933 Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and, unless the context indicates
otherwise, the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and, unless the context
indicates otherwise, the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Person" means an individual, a partnership, a joint venture,
a corporation, an association, a trust, an individual retirement
account or any other entity or organization, including a government or
any department or agency thereof.
"Public Offering" means an underwritten public offering of
equity securities of the Company pursuant an effective registration
statement under the 1933 Act.
"Qualified Public Offering" means a Public Offering of Common
Stock to be listed on the New York Stock Exchange in which (i) the
aggregate net proceeds to the Company (after payment of all fees and
expenses of the offering and pay-down of any
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then existing debt under the Term Loan Agreement, dated as of August
8, 1995, between the Company and Deutsche Bank AG (London))
together with the net proceeds of any on shares of Common Stock of
the Company for the 12 months following the Qualified Public Offering
(as certified by the treasurer or chief financial officer of the
Company) divided by the public offering price is less than or equal to
7.75% and (iii) (A) if the Qualified Public Offering is completed in
the calendar year 1997, the initial public offering price is at least
$16.00 per share, (B) if the Qualified Public Offering is completed in
the calendar year 1998, the initial public offering price is at least
$16.50 per share and (C) if the Qualified Public Offering is completed
in the calendar year 1999, or thereafter, the public offering price is
at least $17.00 per share; provided, however, that a Qualified Public
Offering shall be deemed to occur on the first business day following
any day the condition set forth in (i) above and each of the following
conditions is true: (x) the day is after a Public Offering and prior
to January 1, 2000, (y) the average of the closing prices for shares
of Common Stock as reported on the New York Stock Exchange composite
tape for the 20 consecutive trading days immediately preceding such
day (the "Composite Average") equals or exceeds the applicable minimum
price for a Public Offering to be considered a Qualified Public
Offering at such time and (z) the expected distributions on shares of
Common Stock for the 12 months following such day (as certified by the
treasurer or chief financial officer of the Company) divided by the
Composite Average is less than or equal to 7.75%.
"Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement
or similar document in compliance with the 1933 Act and the
declaration or ordering of effectiveness of such registration
statement or document.
"Registrable Stock" shall mean (i) the Conversion Stock, (ii)
any stock issued as (or issuable upon the conversion or exercise of
any warrant, right, option or other convertible security which is
issued as) a dividend or other distribution with respect to, or in
exchange for, or in replacement of, the Conversion Stock, and (iii)
any stock issued by way of a stock split of the Conversion Stock
referred to in clauses (i) or (ii) above. For purposes of this
Agreement, any Registrable Stock shall cease to be Registrable Stock
when (x) a registration statement covering such Registrable Stock has
been declared effective and such Registrable Stock has been disposed
of pursuant to such effective registration statement, (y) such
Registrable Stock is sold by a person in a transaction in which the
rights under the provisions of this Agreement are not assigned or (z)
such Registrable Stock may be sold pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the 1933 Act
without registration under the 1933 Act.
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"Required Amount" shall have the meaning specified in the
Certificate of Designations.
"Restricted Stock" means all shares of 8% Preferred Stock and
Conversion Stock other than (a) shares that have been registered under
a registration statement pursuant to the 1933 Act, (b) shares with
respect to which a Sale has been made in reliance on and in accordance
with Rule 144 or (c) shares with respect to which the holder thereof
shall have delivered to the Company either (i) an opinion, in form and
substance satisfactory to the Company, of counsel, who shall be
satisfactory to the Company, or (ii) a "no action" letter from the
Commission, to the effect that subsequent transfers of such shares may
be effected without registration under the 1933 Act.
"Rule 144" means Rule 144 (or any successor provision) under
the 1933 Act.
"Rule 144A" means Rule 144A (or any successor provision) under
the 1933 Act.
"Sale" means any sale, assignment, transfer, distribution
(whether by a partnership to any of its partners or otherwise) or
other disposition of 8% Preferred Stock or Conversion Stock or of a
participation therein.
"Stockholder" means each Person (other than the Company) that
shall be a party to this Agreement, whether in connection with the
execution and delivery hereof as of the date hereof, pursuant to
Section 4.11 or otherwise, so long as such Person shall beneficially
own any shares.
ARTICLE II
CERTAIN AGREEMENTS
SECTION 2.01. Additional Purchasers; Approved Purchasers.
(a) the Company may appoint one or more additional purchasers ("Additional
Purchasers") of 8% Preferred Stock, provided that (i) each such Additional
Purchaser shall execute this Stockholders' Agreement and become a party hereto
(and thereafter the term "Stockholder" as used herein shall mean the
Stockholders and such Additional Purchaser) and (ii) the Stockholders are given
written notice of each appointment of an Additional Purchaser as promptly as
practicable after such appointment.
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SECTION 2.02. Board of Directors. (a) For so long as the
Lead Purchaser holds shares of 8% Preferred Stock with aggregate stated value
equal to or in excess of $50,000,000, the Lead Purchaser shall be entitled to
designate the one director whom the holders of the 8% Preferred Stock are
entitled to elect to the Board of Directors of the Company while any shares of
8% Preferred Stock remain outstanding. Upon any failure of the Lead Purchaser
to hold shares of 8% Preferred Stock with aggregate stated value equal to or in
excess of $50,000,000, the right of the Lead Purchaser to designate a director
pursuant to this Section 2.02(a) shall terminate, without the possibility of
revesting.
(b) At any time when an Approved Purchaser holds
shares of 8% Preferred Stock with an aggregate stated value equal to or in
excess of the Required Amount, such holder shall be entitled to designate the
second of the two directors whom the holders of 8% Preferred Stock are entitled
to elect at such time. Upon any failure of the Approved Purchaser to hold
shares of 8% Preferred Stock with an aggregate stated value equal to or in
excess of the Required Amount, the right of the Approved Purchaser to designate
a director for election pursuant to this Section 2.02(b) shall terminate
without the possibility of revesting.
(c) At any time or times when holders of 8% Preferred
Stock are entitled to elect one or more additional directors (the "Additional
Directors") of the Company due to (i) the failure of the Company to complete a
Qualified Public Offering on or prior to December 31, 1999, (ii) the
non-payment of dividends on the 8% Preferred Stock for any two consecutive
quarters or (iii) the breach of the debt to total assets test set forth in
Paragraph 5(c)(iii) of the Certificate of Designations, the Lead Purchaser
shall be entitled to designate one Additional Director for election if at such
time it holds shares of 8% Preferred Stock with aggregate stated value equal to
or in excess of $50,000,000 and the Approved Purchaser shall be entitled to
designate one of the two Additional Directors for election if at such time it
holds shares of 8% Preferred Stock with aggregate stated value in excess of the
Required Amount.
(d) Each Stockholder then entitled to vote for the
election of directors of the Company shall vote all shares of 8% Preferred
Stock owned or held of record by such holder at any meeting of stockholders, or
execute a written consent with respect to all shares of 8% Preferred Stock
owned or held of record by such Stockholder, in favor of the election of any
director named pursuant to Section 2.02(a), Section 2.02(b) or Section 2.02(c).
(e) Each Stockholder hereby agrees that, if it is then
entitled to vote for the election or removal of directors, it will not vote any
of its shares of 8% Preferred Stock in favor of the removal of any director
that shall have been nominated pursuant to Section 2.02(a), Section 2.02(b) or
Section 2.02(c) unless such removal shall be for Cause or the party which
nominated such director shall have consented to such removal in writing. For
the purposes of this Section 2.02(e), "Cause" shall mean the commission by a
director of a felony which, in the opinion of a majority of the Company's Board
of Directors, is injurious to the
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business reputation of the Company or any subsidiary thereof or the wilful
commission by a director of a dishonest act affecting the Company or any
subsidiary thereof.
SECTION 2.03. Listing. (a) Each Stockholder agrees to
cooperate in amending or eliminating paragraphs 5(a) and 5(b) of the
Certificate of Designations if, and to the extent, necessary in order for the
Company's Common Stock to become listed on the New York Stock Exchange.
(b) The Company agrees to recommend to the holders of Common
Stock the election of directors designated by the holders of 8% Preferred Stock
in such manner as to preserve as closely as may be possible the rights of such
holders under said paragraphs 5(a) and 5(b) if such provisions must be amended
or eliminated pursuant to subsection 2.03(a) above.
ARTICLE III
RESTRICTIONS ON TRANSFER
SECTION 3.01. General Restrictions. No Stockholder shall,
directly or indirectly, make or solicit any Sale of, or create, incur, solicit
or assume any Encumbrance with respect to, any share of 8% Preferred Stock or
Conversion Stock, except in compliance with the 1933 Act and this Agreement.
SECTION 3.02. Legends. (a) Each certificate representing
shares of 8% Preferred Stock or Conversion Stock shall, except as otherwise
provided in this Section 3.02 or in Section 3.03, be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO
REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE ON
THE BOOKS OF THE ISSUER UNLESS SUCH TRANSFER IS MADE IN
CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH ACT DOES NOT APPLY,
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN A
STOCKHOLDERS' AGREEMENT, DATED AS OF NOVEMBER 22, 1996, A COPY
OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
ISSUER. NO REGISTRATION OF TRANSFER OF
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SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS
AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH."
(b) In the event that any shares of 8% Preferred Stock or
Conversion Stock shall cease to be Restricted Stock, the Company shall, upon
the written request of the holder thereof, issue to such holder a new
certificate evidencing such shares without the first paragraph of the legend
required by Section 3.02(a) endorsed thereon. In the event that any shares of
8% Preferred Stock or Conversion Stock shall cease to be subject to the
restrictions on transfer set forth in this Agreement, the Company shall, upon
the written request of the holder thereof, issue to such holder a new
certificate evidencing such shares of 8% Preferred Stock or Conversion Stock
without the second paragraph of the legend required by Section 3.02(a).
SECTION 3.03. Notice of Proposed Transfer. Each
Stockholder agrees that it will not, directly or indirectly, make or solicit
any Sale of, or create, incur or assume any Encumbrance with respect to, any
share of 8% Preferred Stock or Conversion Stock held by such Stockholder
unless, prior to any such action, the holder thereof shall give written notice
to the Company of its intention. Each such notice shall describe the manner of
the proposed transfer and, if requested by the Company, shall be accompanied by
an opinion of counsel satisfactory to the Company to the effect that the
proposed transfer may be effected without registration under the 1933 Act,
whereupon the holder of such stock shall be entitled to transfer such stock in
accordance with the terms of its notice; provided, however, that no such
opinion of counsel shall be required for a transfer to one or more partners of
the transferor (in the case of a transferor that is a partnership) or to an
Affiliated corporation (in the case of a transferor that is a corporation).
Each certificate for 8% Preferred Stock or Conversion Stock transferred as
above provided shall bear the legend set forth in Section 3.02, except that
such certificate shall not bear the first paragraph of such legend if (i) such
transfer is in accordance with the provisions of Rule 144 or Rule 144A (or any
other rule permitting public sale without registration under the 0000 Xxx) or
(ii) the opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee (other than an Affiliate of the
Company) would be entitled to transfer such securities in a public sale without
registration under the 1933 Act. The restrictions provided for in this Section
3.03 shall not apply to securities which are not required to bear the first
paragraph of the legend prescribed by Section 3.02(a) in accordance with the
provisions of that Section.
SECTION 3.04. Certain Persons to Execute Agreement. (a)
Each Stockholder agrees that it will not directly or indirectly make any Sale
of, or create, incur or assume any Encumbrance with respect to, any shares of
8% Preferred Stock or Conversion Stock held by such Stockholder, unless, prior
to the consummation of any such Sale or the creation, incurrence or assumption
of any such Encumbrance, the Person to whom such Sale is
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proposed to be made or the Person in whose favor such Encumbrance is proposed
to be created, incurred or assumed (for purposes of this Section 3.04, a
"Prospective Transferee") (i) executes and delivers to the Company an
agreement, in form and substance satisfactory to the Company, whereby such
Prospective Transferee confirms that, with respect to the shares of 8%
Preferred Stock or Conversion Stock that are subject of such Sale or
Encumbrance, it shall be deemed to be a "Stockholder" for the purposes of this
Agreement and agrees to be bound by all the terms of this Agreement and (ii)
unless such Prospective Transferee is a recognized institutional investor,
delivers to the Company an opinion of counsel, satisfactory in form and
substance to the Company, to the effect that the agreement referred to above
that is delivered by such Prospective Transferee is a legal, valid and binding
obligation of such Prospective Transferee enforceable against such Prospective
Transferee in accordance with its terms. Upon the execution and delivery by
such Prospective Transferee of the agreement referred to in clause (i) of the
next preceding sentence and, if required, the delivery of the opinion of
counsel referred to in clause (ii) of the next preceding sentence, such
Prospective Transferee shall be deemed a "Stockholder" for the purposes of this
Agreement, and shall have the rights and be subject to the obligations of a
Stockholder hereunder with respect to the shares held by such Prospective
Transferee or in respect of which such Encumbrance shall have been created,
incurred or assumed.
(b) Anything in this Section 3.04 or in Section 3.03 to
the contrary notwithstanding, the provisions of this Section 3.04 will not be
applicable to any Sale of shares pursuant to a Public Offering.
SECTION 3.05. Certain Information. The Company shall file
all reports and other information required to be filed by Section 13 or 15(d)
under the 1934 Act, as the case may be, as shall be necessary in order that the
conditions to the availability of Rule 144 in connection with any Sale of
shares of Common Stock by a Stockholder shall be met.
SECTION 3.06. Improper Sale or Encumbrance. Any attempt to
make any Sale of, or create, incur or assume any Encumbrance with respect to,
any share of 8% Preferred Stock or Conversion Stock not in compliance with this
Agreement shall be null and void and the Company shall not give any effect in
the Company's stock records to such attempted Sale or Encumbrance.
SECTION 3.07. Notice of Qualified Public Offering. So long
as any 8% Preferred Stock is outstanding, the Company shall endeavor to notify
the Stockholders no less than 30 days prior to the completion of any
contemplated Qualified Public Offering. If requested, the Company will consult
in advance with any holder of shares of 8% Preferred Stock with an aggregate
stated value of at least $100 million with respect to the managing underwriters
and possible range of public offering prices of the Common Stock.
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ARTICLE IV
REGISTRATION RIGHTS
SECTION 4.01. Request for Registration.
(a) On and after the earlier of (i) the date which is six
months after the date the registration statement filed by the Company
covering a Qualified Public Offering shall have become effective, and
(ii) December 31, 1999 if a Qualified Public Offering shall not have
been completed on or prior to such date, the Stockholders of at least
25% of the Registrable Stock issued or issuable upon conversion of the
8% Preferred Stock (the " Initiating Holders") may request in a
written notice that the Company file a registration statement under
the 1933 Act (or a similar document pursuant to any other statute then
in effect corresponding to the 0000 Xxx) covering the registration of
any or all Registrable Stock held by such Initiating Holders in the
manner specified in such notice, provided that there must be included
in such registration at least 25% of the Registrable Stock issued or
issuable upon conversion of the 8% Preferred Stock (or any lesser
percentage if the anticipated aggregate offering proceeds would exceed
$100 million). Following receipt of any notice under this Section
4.01(a) the Company shall (x) within 20 days notify all other
Stockholders of such request in writing and (y) use its best efforts
to cause to be registered under the 1933 Act all Registrable Stock
that the Initiating Holders and such other Stockholders have, within
ten days after the Company has given such notice, requested be
registered in accordance with the manner of disposition specified in
such notice by the Initiating Holders.
(b) If the Initiating Holders intend to have the
Registrable Stock distributed by means of an underwritten offering,
the Company shall include such information in the written notice
referred to in clause (x) of Section 4.01(a) above. In such event,
the right of any Stockholder to include its Registrable Stock in such
registration shall be conditioned upon such Stockholder's
participation in such underwritten offering and the inclusion of such
Stockholder's Registrable Stock in the underwritten offering (unless
otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Stockholder) to the extent provided below. All
Stockholders proposing to distribute Registrable Stock through such
underwritten offering shall enter into an underwriting agreement in
customary form with the underwriter or underwriters. Such underwriter
or underwriters shall be selected by a majority in interest of the
Initiating Holders and shall be approved by the Company, which
approval shall not be unreasonably withheld. If any Stockholder of
Registrable Stock disapproves of the terms of the underwriting, such
Stockholder may elect to withdraw all its Registrable Stock by written
notice to the Company, the managing underwriter and the Initiating
Holders. The securities so withdrawn shall also be withdrawn from
registration.
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(c) Notwithstanding any provision of this Agreement to
the contrary,
(i) the Company shall not be required to effect a
registration pursuant to this Section 4.01
during the period starting with the date of
filing by the Company of, and ending on a
date 120 days following the effective date
of, a registration statement pertaining to a
public offering of securities for the account
of the Company or on behalf of the selling
stockholders under any other registration
rights agreement which the Stockholder have
been entitled to join pursuant to Section
4.02; provided, that the Company shall
actively employ in good faith all reasonable
efforts to cause such registration statement
to become effective as soon as possible; and
(ii) if the Company shall furnish to such
Stockholders a certificate signed by the
President of the Company stating that in the
good faith opinion of the board of directors
of the Company such registration would
interfere with any material transaction then
being pursued by the Company, then the
Company's obligation to use its best efforts
to file a registration statement shall be
deferred for a period not to exceed 120 days.
(d) The Company shall not be obligated to effect and pay
for more than one registration pursuant to this Section 4.01 prior to
the completion of a Qualified Public Offering and three registrations
pursuant to this Section 4.01 after the completion of a Qualified
Public Offering; provided that a registration requested pursuant to
this Section 4.01 shall not be deemed to have been effected for
purposes of this Section 4.01(d) unless (i) it has been declared
effective by the Commission, (ii) it has remained effective for the
period set forth in Section 4.03(a), (iii) Stockholders of Registrable
Stock included in such registration have not withdrawn sufficient
shares from such registration such that the remaining holders
requesting registration would not have been able to request
registration under the provisions of Section 4 and (iv) the offering
of Registrable Stock pursuant to such registration is not subject to
any stop order, injunction or other order or requirement of the
Commission (other than any such stop order, injunction, or other
requirement of the Commission prompted by any act or omission of
Stockholders of Registrable Stock).
SECTION 4.02. Incidental Registration. Subject to Section
4.06, if at any time the Company determines that it shall file a registration
statement under the 1933 Act (other than a registration statement on Form S-4
or S-8 or filed in connection with an exchange offer or an offering of
securities solely to the Company's existing stockholders) on any form that
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would also permit the registration of the Registrable Stock and such filing is
to be on its behalf and/or on behalf of selling holders of its securities for
the general registration of its Common Stock to be sold for cash, the Company
shall each such time promptly give each Stockholder written notice of such
determination setting forth the date on which the Company proposes to file such
registration statement, which date shall be no earlier than 60 days from the
date of such notice, and advising each Stockholder of its right to have
Registrable Stock included in such registration. Upon the written request of
any Stockholder received by the Company no later than 30 days after the date of
the Company's notice, the Company shall use its best efforts to cause to be
registered under the 1933 Act all of the Registrable Stock that each such
Stockholder has so requested to be registered. If, in the written opinion of
the managing underwriter (or, in the case of a non-underwritten offering, in
the written opinion of the Company), the total amount of such securities to be
so registered, including such Registrable Stock, will exceed the maximum amount
of the Company's securities which can be marketed (i) at a price reasonably
related to the then current market value of such securities, or (ii) without
otherwise materially and adversely affecting the entire offering, then the
Company shall be entitled to reduce the number of shares of Registrable Stock
to not less than one-third of the total number of shares in such offering
except in the case of the initial firm commitment underwritten public offering
of the Company, in which case the managing underwriter may reduce the number of
shares of Registrable Stock to be included in such offering to zero. Any such
reduction of Registrable Stock shall be allocated among all such Stockholders
in proportion (as nearly as practicable) to the amount of Registrable Stock
owned by each Stockholder at the time of filing the registration statement.
SECTION 4.03. Obligations of the Company. Whenever required
under Section 4.01 to use its best efforts to effect the registration of any
Registrable Stock, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Stock and use its best
efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby
determined as provided hereafter;
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to comply with the
provisions of the 1933 Act with respect to the disposition of all
Registrable Stock covered by such registration statement;
(c) furnish to the Stockholders such numbers of copies of
the registration statement and the prospectus included therein
(including each preliminary prospectus and any amendments or
supplements thereto in conformity with the requirements of the 1933
Act and such other documents and information as they may reasonably
request;
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(d) use its best efforts to register or qualify the
Registrable Stock covered by such registration statement under such
other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as shall be reasonably appropriate for
the distribution of the Registrable Stock covered by the registration
statement; provided, however, that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do
business in or to file a general consent to service of process in any
jurisdiction wherein it would not but for the requirements of this
paragraph (d) be obligated to do so; and provided further that the
Company shall not be required to qualify such Registrable Stock in any
jurisdiction in which the securities regulatory authority requires
that any Stockholder submit any shares of its Registrable Stock to the
terms, provisions and restrictions of any escrow, lockup or similar
agreement(s) for consent to sell Registrable Stock in such
jurisdiction unless such Stockholder agrees to do so;
(e) promptly notify each Stockholder with Registrable
Stock covered by such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the 1933
Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they
were made, and at the request of any such Stockholder promptly prepare
and furnish to such Stockholder a reasonable number of copies of such
supplement to or amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances under which they were made;
(f) furnish, at the request of any Stockholder requesting
registration of Registrable Stock pursuant to Section 4.01, if the
method of distribution is by means of an underwriting, on the date
that the shares of Registrable Stock are delivered to the underwriters
for sale pursuant to such registration, or if such Registrable Stock
is not being sold through underwriters, on the date that the
registration statement with respect to such shares of Registrable
Stock becomes effective, (1) a signed opinion, dated such date, of the
independent legal counsel representing the Company for the purpose of
such registration, addressed to the underwriters, if any, and if such
Registrable Stock is not being sold through underwriters, then to the
Stockholders making such request, as to such matters as such
underwriters or the Stockholders holding a majority of the Registrable
Stock included in such registration, as the case may be, may
reasonably request and as would be customary in such a transaction;
and (2) letters dated such date and the date the offering is priced
from the independent certified public accountants of
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the Company, addressed to the underwriters, if any, and if such
Registrable Stock is not being sold through underwriters, then to the
Stockholders making such request and, if such accountants refuse to
deliver such letters to such Stockholders, then to the Company (i)
stating that they are independent certified public accountants within
the meaning of the 1933 Act and that, in the opinion of such
accountants, the financial statements and other financial data of the
Company included in the registration statement or the prospectus, or
any amendment or supplement thereto, comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and (ii) covering such other financial matters (including information
as to the period ending not more than five business days prior to the
date of such letters) with respect to the registration in respect of
which such letter is being given as such underwriters or the
Stockholders holding a majority of the Registrable Stock included in
such registration, as the case may be, may reasonably request and as
would be customary in such a transaction;
(g) enter into customary agreements (including if the
method of distribution is by means of an underwriting, an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of the Registrable Stock to be so included in the registration
statement;
(h) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, but not
later than 18 months after the effective date of the registration
statement, an earnings statement covering the period of at least 12
months beginning with the first full month after the effective date of
such registration statement, which earnings statements shall satisfy
the provisions of Section 11(a) of the 1933 Act; and
(i) use its best efforts to list the Registrable Stock
covered by such registration statement with the New York Stock
Exchange.
For purposes of Sections 4.03(a) and 4.03(b), the period of distribution of
Registrable Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable Stock
in any other registration shall be deemed to extend until the earlier of the
sale of all Registrable Stock covered thereby and six months after the
effective date thereof.
SECTION 4.04. Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement that the Stockholders shall furnish to the Company such information
regarding themselves, the
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Registrable Stock held by them, and the intended method of disposition of such
securities as the Company shall reasonably request and as shall be required in
connection with the action to be taken by the Company.
SECTION 4.05. Expenses of Registration. All expenses
incurred in connection with each registration pursuant to Section 4.01 and
Section 4.02 of this Agreement, excluding underwriters' discounts and
commissions, but including without limitation all registration, filing and
qualification fees, word processing, duplicating, printers' and accounting fees
(including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance), fees of the
National Association of Securities Dealers, Inc. or listing fees, messenger and
delivery expenses, all fees and expenses of complying with state securities or
blue sky laws, fees and disbursements of counsel for the Company, and the fees
and disbursements of one counsel for the selling Stockholders (which counsel
shall be selected by the Stockholders holding a majority in interest of the
Registrable Stock being registered), shall be paid by the Company; provided,
however, that if a registration request pursuant to Section 4.01 of this
Agreement is subsequently withdrawn at the request of the Stockholders of a
number of shares of Registrable Stock such that the remaining Stockholders
requesting registration would not have been able to request registration under
the provisions of Section 4.01 of this Agreement, such withdrawing Stockholders
shall bear such expenses unless such withdrawing Stockholders shall forfeit
their right to one requested registration pursuant to Section 4.01 of this
Agreement. The Stockholders shall bear and pay the underwriting commissions
and discounts applicable to securities offered for their account in connection
with any registrations, filings and qualifications made pursuant to this
Agreement.
SECTION 4.06. Underwriting Requirements. In connection with
any underwritten offering, the Company shall not be required under Section 4.02
to include shares of Registrable Stock in such underwritten offering unless the
Stockholders holding such shares of Registrable Stock accept the terms of the
underwriting of such offering that have been reasonably agreed upon between the
Company and the underwriters selected by the Company.
SECTION 4.07. Rule 144 Information. With a view to making
available the benefits of certain rules and regulations of the Commission which
may at any time permit the sale of the Registrable Stock to the public without
registration the Company agrees to:
(i) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the 1934 Act; and
(ii) furnish to each Stockholder holding Registrable Stock
forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of the 1934 Act, a copy of
the most recent annual or quarterly report of
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the Company, and such other reports and documents so filed by the
Company as such Stockholder may reasonably request in availing itself
of any rule or regulation of the Commission allowing such Stockholder
to sell any Registrable Stock without registration.
SECTION 4.08. Indemnification. In the event any
Registrable Stock is included in a registration statement under this
Agreement:
(a) The Company shall indemnify and hold
harmless each Stockholder, such Stockholder's directors and officers,
each person who participates in the offering of such Registrable
Stock, including underwriters (as defined in the 1933 Act), and each
person, if any, who controls such Stockholder or participating person
within the meaning of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which they may become
subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or proceedings in respect thereof)
arise out of or are based on any untrue or alleged untrue statement of
any material fact contained in such registration statement on the
effective date thereof (including any prospectus filed under Rule 424
under the 1933 Act or any amendments or supplements thereto) or arise
out of or are based upon the 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 shall reimburse each
such Stockholder, such Stockholder's directors and officers, such
participating person or controlling person for any legal or other
expenses reasonably incurred by them (but not in excess of expenses
incurred in respect of one counsel for all of them unless there is an
actual conflict of interest between any indemnified parties, which
indemnified parties may be represented by separate counsel) in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 4.08(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the
Company; provided, further, that the Company shall not be liable to
any Stockholder, such Stockholder's directors and officers,
participating person or controlling person in any such case for any
such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in connection with such
registration statement, preliminary prospectus, final prospectus or
amendments or supplements thereto, in reliance upon and in conformity
with written information furnished expressly for use in connection
with such registration by any such Stockholder, such Stockholder's
directors and officers,
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participating person or controlling person. Such indemnity shall
remain in full force and effect regardless of any investigation made
by or on behalf of any such Stockholder, such Stockholder's directors
and officers, participating person or controlling person, and shall
survive the transfer of such securities by such Stockholder.
(b) Each Stockholder requesting or joining in a
registration severally and not jointly shall indemnify and hold
harmless the Company, each of its directors and officers, each person,
if any, who controls the Company within the meaning of the 1933 Act,
and each agent and any underwriter for the Company (within the meaning
of the 0000 Xxx) against any losses, claims, damages or liabilities,
joint or several, to which the Company or any such director, officer,
controlling person, agent or underwriter may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in such registration statement on the
effective date thereof (including any prospectus filed under Rule 424
under the 1933 Act or any amendments or supplements thereto) or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in such
registration statement, preliminary or final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with
written information furnished by or on behalf of such Stockholder
expressly for use in connection with such registration; and each such
Stockholder shall reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling
person, agent or underwriter (but not in excess of expenses incurred
in respect of one counsel for all of them unless there is an actual
conflict of interest between any indemnified parties, which
indemnified parties may be represented by separate counsel) in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however , that the indemnity
agreement contained in this Section 4.08(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of such
Stockholder (which consent shall not be unreasonably withheld), and
provided further that the liability of each Stockholder hereunder
shall be limited to the proportion of any such loss, claim, damage,
liability or expense which is equal to the proportion that the net
proceeds from the sale of the shares sold by such Stockholder under
such registration statement bears to the total net proceeds from the
sale of all securities sold thereunder, but not in any event to exceed
the net proceeds received by such Stockholder from the sale of
Registrable Stock covered by such registration statement.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section, notify
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the indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and assume
the defense thereof with counsel selected by the indemnifying party
and reasonably satisfactory to the indemnified party; provided,
however, that an indemnified party shall have the right to retain its
own counsel, with all fees and expenses thereof to be paid by such
indemnified party, and to be apprised of all progress in any
proceeding the defense of which has been assumed by the indemnifying
party. The failure to notify an indemnifying party promptly of the
commencement of any such action, if and to the extent prejudicial to
its ability to defend such action, shall relieve such indemnifying
party of any liability to the indemnified party under this Section,
but the omission so to notify the indemnifying party will not relieve
it of any liability that it may have to any indemnified party
otherwise than under this Section.
(d) To the extent any indemnification by an indemnifying
party is prohibited or limited by law, the indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified
party in connection with the actions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among
other things, whether any action in question, including any untrue or
alleged untrue statement of material fact or omission or alleged
omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 4.08(d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
SECTION 4.09. Lock-up. Each Stockholder shall, in connection
with any registration of the Company's securities, upon the request of the
Company or the underwriters managing any underwritten offering of the Company's
securities, agree in writing not to effect
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any sale, disposition or distribution of any Registrable Stock (other than that
included in the registration) without the prior written consent of the Company
or such underwriters, as the case may be, for such period of time from the
effective date of such registration as the Company or the underwriters may
specify; provided, however, that all executive officers and directors of the
Company shall also have agreed not to effect any sale, disposition or
distribution of any Registrable Stock under the circumstances and pursuant to
the terms set forth in this Section 4.09.
SECTION 4.10. Transfer of Registration Rights. The
registration rights of any Stockholder under this Agreement with respect to any
Registrable Stock may be transferred to (a) any transferee of such Registrable
Stock who acquires at least 20% of such Stockholder's shares of Registrable
Stock (adjusted for stock splits and stock consolidations after the effective
date of this Agreement) or (b) an Affiliate of such Stockholder; provided,
however, that (i) the transferring Stockholder shall give the Company written
notice at or prior to the time of such transfer stating the name and address of
the transferee and identifying the securities with respect to which the rights
under this Agreement are being transferred; (ii) such transferee shall agree in
writing, in form and substance reasonably satisfactory to the Company, to be
bound as a Stockholder by the provisions of this Agreement; and (iii)
immediately following such transfer the further disposition of such securities
by such transferee is restricted under the 1933 Act. Except as set forth in
this Section 4.10, no transfer of Registrable Stock shall cause such
Registrable Stock to lose such status.
ARTICLE V. COVENANTS OF THE COMPANY
The Company covenants and agrees with the Stockholders that so
long as any of the 8% Preferred Stock is outstanding:
Section 5.01. Financial Statements, Reports, Etc. So long as
the Lead Purchaser owns shares of 8% Preferred Stock, the Company shall furnish
to the Lead Purchaser, within 30 days after the Company files with the
Commission, copies of its annual reports and other information, documents and
reports (or copies of such portions of any of the foregoing as the Commission
may by rules and regulations prescribe) that it is required to file with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
Section 5.02. Reserve for Conversion Shares. The Company
shall at all times reserve and keep available out of its authorized but
unissued shares of Common Stock, for the purpose of effecting the conversion of
the shares of 8% Preferred Stock, such number of its duly authorized shares of
Common Stock as shall be sufficient to effect the conversion of the shares of
8% Preferred Stock from time to time outstanding. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the
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conversion of the shares of 8% Preferred Stock, the Company shall forthwith
take such corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose. The Company shall obtain any authorization, consent,
approval or other action by or make any filing with any court or administrative
body that may be required under applicable state securities laws in connection
with the issuance of shares of Common Stock upon conversion of the shares of 8%
Preferred Stock.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Termination. The portions of this Agreement
that shall be deemed to constitute a voting agreement or a voting trust
pursuant to Section 78.365 of the Revised Statutes of the State of Nevada (or
pursuant to any similar provision) shall terminate on the fifteenth anniversary
of the execution and delivery hereof.
SECTION 6.02. Representations. Each of the parties hereto
represents that this Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms.
SECTION 6.03. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
SECTION 6.04. Amendments and Waivers. Any term of this
Agreement may be amended and the observance of any such term may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of (a) the Company and (b)
Stockholders holding shares of 8% Preferred Stock representing 80% of the then
outstanding shares of 8% Preferred Stock held by all the Stockholders. Each
Stockholder shall be bound by any amendment or waiver authorized by this
Section 6.04, whether or not such Stockholder shall have consented thereto.
SECTION 6.05. Benefit; Successors and Assigns. Except as
otherwise provided herein, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, however, that this Agreement shall not inure to
the benefit of any Prospective Transferee unless such Prospective Transferee
shall have complied with the terms of Section 3.03. No Stockholder may assign
any of its rights hereunder to any Person other than a transferee that has
complied with the requirements of Section 3.03 in all respects. Nothing in
this Agreement either
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express or implied is intended to confer on any person other than the parties
hereto and their respective successors and permitted assigns, any rights,
remedies or obligations under or by reason of this Agreement.
SECTION 6.06. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 6.07. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
SECTION 6.08. Titles. The titles of the Sections of this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
SECTION 6.09. Notices. Any notice required or permitted
under this Agreement shall be in writing and shall be delivered in person or
mailed by certified or registered mail, return receipt requested, or
transmitted by telecopier, directed to (a) the Company at the address set forth
below its signature hereof or (b) to a Stockholder at the address therefor as
set forth in the Company's records or at the address set forth below its
signature hereof or, in any such case, at such other address or addresses as
shall have been furnished in writing by such party to the others. The giving
of any notice required hereunder may be waived in writing by the parties
hereto. Every notice or other communication hereunder shall be deemed to have
been duly given or served on the date on which personally delivered, or on the
date actually received, if sent by mail or telecopier, with receipt
acknowledged.
SECTION 6.10. Severability. If one or more provisions of
this Agreement are held to be unenforceable under applicable law, such
provisions shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provisions were so excluded and shall
be enforceable in accordance with its terms.
SECTION 6.11. Entire Agreement. All prior agreements of the
parties concerning the subject matter of this Agreement are expressly
superseded by this Agreement. This Agreement contains the entire Agreement of
the parties concerning the subject matter hereof. Any oral representations or
modifications of this Agreement shall be of no effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
CORNERSTONE PROPERTIES INC.
By:
----------------------------
Name:
Title:
Address For Notices:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
----------------------
Telecopier: (000) 000-0000
NEW YORK STATE TEACHERS'
RETIREMENT SYSTEM
By:
----------------------------
Name:
Title:
Address For Notices:
00 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
