EXHIBIT 99.1
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
BOSTON PROPERTIES, INC., BOSTON PROPERTIES LIMITED PARTNERSHIP
AND
THE HOLDERS NAMED HEREIN
MARCH 26, 1999
TABLE OF CONTENTS
PAGE
1. Certain Definitions .................................................... 1
2. Lock-up Agreement ......................................................3
3. Registration ...........................................................4
4. State Securities Laws ..................................................6
5. Expenses ...............................................................6
6. Indemnification by the Company .........................................6
7. Covenants of the Holder ................................................7
8. Suspension of Registration Requirement; Restriction on Sales ...........8
9. Black-Out Period ........................................................8
10. Additional Shares .......................................................9
11. Contribution ............................................................9
12. No Other Obligation to Register .........................................9
13. Amendments and Waivers .................................................10
14. Notices ................................................................10
15. Successors and Assigns .................................................10
16. Counterparts ...........................................................11
17. Governing Law ..........................................................11
18. Severability ...........................................................11
19. Entire Agreement .......................................................11
Schedule A - List of Holders
Schedule B - List of Permitted Distributees
(i)
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
This Lock-up and Registration Rights Agreement (this "Agreement") is
entered into as of March 26, 1999 by and among Boston Properties, Inc., a
Delaware corporation (the "Company"), Boston Properties Limited Partnership, a
Delaware limited partnership (the "Partnership") and the Persons named on
Schedule A hereto (each a "Holder" and, collectively, the "Holders").
WHEREAS, the Holders are parties to a Contribution Agreement, dated as of
March 26, 1999 (the "Contribution Agreement"), by and between the Partnership
and the Holders, relating to the contribution of partnership interests in 17M
Associates, a District of Columbia limited partnership, in exchange for common
units of limited partnership in the Partnership ("Units");
WHEREAS, the Units are being issued to the Holders in a private placement
transaction and accordingly constitute restricted securities;
WHEREAS, upon the presentation of Units to the Partnership for redemption
in accordance with the terms hereof and the terms of the Second Amended and
Restated Agreement of Limited Partnership of the Partnership (as amended, the
"Partnership Agreement"), the Units may be acquired by the Company in exchange
for shares of common stock of the Company, par value $.01 per share ("Common
Shares"), and the Company has agreed to provide certain registration rights to
the Holders in respect of such Common Shares, and the Holders have agreed to
certain restrictions on the transferability and redemption of the Units and such
Common Shares; and
WHEREAS, it is a condition precedent under the Contribution Agreement that
each of the Company, the Partnership and the Holders enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions. As used in this Agreement, in addition to the
other terms defined herein, the following capitalized defined terms shall have
the following meanings:
"Affiliate" shall mean, with respect to any specified Person, any other
Person who, directly or indirectly, controls, is controlled by, or is under
common control with such specified Person, provided that, for purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "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 agreement or otherwise.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Common Shares" shall have the meaning set forth in the recitals hereto.
"Company" shall have the meaning set forth in the preamble hereto.
"Contribution Agreement" shall have the meaning set forth in the recitals
hereto.
"Dispose of" shall have the meaning set forth in Section 2.
"Holder" shall have the meaning set forth in the preamble hereto.
"Issuance Registration Statement" shall have the meaning set forth in
Section 3(b).
"Lock-up Period" shall have the meaning set forth in Section 2.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Partnership" shall have the meaning set forth in the preamble hereto.
"Partnership Agreement" shall have the meaning set forth in the recitals
hereto.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust, or unincorporated organization, or a government or
agency or political subdivision thereof.
"Permitted Distributee" means a direct or indirect holder of equity
interests in a Holder that is listed on Schedule B hereto and that has delivered
to the Company an Investor Questionnaire (as defined in the Contribution
Agreement).
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Shares covered by such
Registration Statement, and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Registrable Shares" (a) when used with respect to a Holder, shall mean the
Shares of any Holder, excluding (i) Shares issued to such Holder pursuant to an
Issuance Registration Statement so long as such Holder is not an Affiliate of
the Company, (ii) Shares for which a Resale Registration Statement relating to
the sale thereof shall have become effective under the Securities Act and which
have been disposed of under such Resale Registration Statement, (iii) Shares
sold pursuant to Rule 144 or (iv) Shares eligible for sale pursuant to Rule
144(k) (or any successor provision) and (b) when used without reference a
Holder, shall mean Registrable Shares of all Holders.
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"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses-incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 3(d) hereof, and (v) the
fees and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by a
Holder, the fees and disbursements of counsel representing a Holder in
connection therewith as provided in Section 5, and transfer taxes, if any,
relating to the sale or disposition of Registrable Shares by a Holder, all of
which shall be borne by such Holder in all cases.
"Registration Statement" shall mean any registration statement of the
Company which covers the issuance or resale of any of the Registrable Shares on
an appropriate form, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all materials
incorporated by reference therein.
"Resale Registration Statement" shall have the meaning set forth in Section
3(a).
"Rule 144" means Rule 144 (or any successor provision) under the Securities
Act.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Shares" (a) when used with respect to Holder, shall mean any Common Shares
issued or to be issuable to such Holder upon redemption or in exchange for Units
held by such Holder, which Units were acquired by such Holder pursuant to the
Contribution Agreement and (b) when used without reference to a Holder, shall
mean the Shares of all Holders.
"Units" shall have the meaning set forth in the recitals hereto.
2. Lock-up Agreement. Each Holder hereby agrees that for a period of one
year after the date hereof (the "Lock-up Period"), without the consent of the
Company, it will not offer, pledge, sell, contract to sell, grant any options
for the sale of, seek redemption of, or
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otherwise dispose of, directly or indirectly (collectively "Dispose of"), any
Units; provided, however, that each Holder may (i) Dispose of Units to a
Permitted Distributee, (ii) Dispose of Units pursuant to a pledge, grant of
security interest or other encumbrance effected in a bona fide transaction with
an unrelated and unaffiliated pledgee if such pledgee agrees that it will under
no circumstances foreclose with respect to such Units until after the first
anniversary of the date hereof, (iii) Dispose of Units on his or her death to
such Holder's estate, executor, administrator or personal representative or to
such Holder's beneficiaries pursuant to a devise or bequest or by laws of
descent and distribution, and (iv) after the Lock-up Period, Dispose of Units in
accordance with the terms of the Partnership Agreement; and provided, further,
that the transferor shall, at the request of the Company, provide evidence
reasonably satisfactory to the Company that the transfer is exempt from the
registration requirements of the Securities Act. If a Holder Disposes of Units
as described in this Section 2, such Units shall remain subject to this
Agreement and, as a condition of the validity of such disposition, the
transferee shall be required to execute and deliver a counterpart of this
Agreement dated as of the date hereof (except that a pledgee shall not be
required to execute and deliver a counterpart of this Agreement until it
forecloses upon such Units). Thereafter, such transferee shall be deemed to be a
Holder for purposes of this Agreement.
3. Registration.
(a) Filing of Resale Shelf Registration Statement. Subject to the
conditions set forth in this Agreement, the Company shall cause to be filed a
Registration Statement under Rule 415 under the Securities Act relating to the
sale by any Holder of all of the Registrable Shares of such Holder or Holders in
accordance with the terms hereof (the "Resale Registration Statement"), and
shall commence, no later than the first anniversary of this Agreement, the
preparation of such Resale Registration Statement, and shall use reasonable good
faith efforts to cause such Resale Registration Statement to be declared
effective by the SEC within 90 days following the first anniversary of the date
of this Agreement. The Company agrees to use reasonable good faith efforts to
keep the Resale Registration Statement, after its date of effectiveness,
continuously effective with respect to the Registrable Shares of each Holder
until the earlier of (a) the date on which the Holder no longer holds any
Registrable Shares or (b) the date on which all of the Registrable Shares held
by such Holder have become eligible for sale pursuant to Rule 144(k) (or any
successor provision) (hereinafter referred to as the "Resale Shelf Registration
Expiration Date).
(b) Registration Statement Covering Issuance of Common Shares. In
lieu of the registration rights set forth in Section 3(a) above, the Company
may, in its sole discretion, prior to the first date upon which the Units held
by the Holders may be redeemed (or such other date as may be required under
applicable provisions of the Securities Act) file a Registration Statement (the
"Issuance Registration Statement") under Rule 415 under the Securities Act
relating to the issuance to the Holders of Common Shares upon the redemption of
Units or in exchange for Units. Thereupon, the Company shall use reasonable
good faith efforts to cause such Issuance Registration Statement to be declared
effective by the SEC for all Common Shares covered thereby. The Company agrees
to use reasonable good faith efforts to keep the Issuance
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Registration Statement continuously effective until the date on which all
Holders have redeemed or exchanged their Units for Common Shares or cash. In the
event that (i) the Company, despite its reasonable good faith efforts, is unable
to cause such Issuance Registration Statement to be declared effective by the
SEC within 90 days of the first anniversary of this Agreement or (except as
otherwise permitted by Sections 8(b) and 9) is unable to keep such Issuance
Registration Statement effective until the date on which each Holder has
redeemed or exchanged such Holder's Units for Common Shares, or (ii) a Holder is
or becomes an Affiliate of the Company, then the rights of each Holder set forth
in Section 3(a) above shall be restored.
(c) Notification and Distribution of Materials. The Company shall
notify each Holder of the effectiveness of any Resale Registration Statement
applicable to the Shares of such Holder and shall furnish to such Holder such
number of copies of the Resale Registration Statement (including any amendments,
supplements and exhibits), the Prospectus contained therein (including each
preliminary prospectus and all related amendments and supplements) and any
documents incorporated by reference in the Resale Registration Statement and
such other documents as such Holder may reasonably request in order to
facilitate its sale of the Registrable Shares in the manner described in the
Resale Registration Statement.
(d) Amendments and Supplements. The Company shall prepare and file
with the SEC from time to time such amendments and supplements to the
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all the
Registrable Shares until the earlier of (a) such time as all of the Registrable
Shares have been disposed of in accordance with the intended methods of
disposition by all Holders (in the case of a Resale Registration Statement filed
pursuant to Section 3(a) hereof) or issued in accordance with the intended
method of issuance by the Company (in the case of an Issuance Registration
Statement filed pursuant to Section 3(b) hereof) or (b) the date on which the
Registration Statement ceases to be effective in accordance with the terms of
this Section 3. Upon twenty (20) business days' notice, the Company shall file
any supplement or post-effective amendment to the Resale Registration Statement
with respect to the plan of distribution or a Holder's ownership interests in
its Registrable Shares that is reasonably necessary to permit the sale of such
Holder's Registrable Shares pursuant to the Resale Registration Statement. The
Company shall file any necessary listing applications or amendments to the
existing applications to cause the Shares registered under any Registration
Statement to be then listed or quoted on the primary exchange or quotation
system on which the Common Shares are then listed or quoted.
(e) Notice of Certain Events. The Company shall promptly notify each
Holder of, and confirm in writing, the filing of the Registration Statement or
any Prospectus, amendment or supplement related thereto or any post-effective
amendment to the Registration Statement and the effectiveness of any post-
effective amendment.
At any time when a Prospectus relating to the Resale Registration Statement
is required to be delivered under the Securities Act by a Holder to a
transferee, the Company shall immediately notify each Holder of the happening of
any event as a result of which the
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Prospectus included in such Resale Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. In
such event, the Company shall promptly prepare and furnish to each applicable
Holder a reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registrable Shares, sold under the Prospectus, such Prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Company will, if necessary, promptly amend the Resale
Registration Statement of which such Prospectus is a part to reflect such
amendment or supplement.
4. State Securities Laws. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Resale
Registration Statement hereunder, file such documents as may be necessary to
register or qualify the Registrable Shares under the securities or "Blue Sky"
laws of such states as any Holder may reasonably request, and the Company shall
use its best efforts to cause such filings to become effective in a timely
manner; provided, however, that the Company shall not be obligated to qualify as
a foreign corporation to do business under the laws of any such state in which
it is not then qualified or to file any general consent to service of process in
any such state. Once effective, the Company shall use its best efforts to keep
such filings effective until the earlier of (a) such time as all of the
Registrable Shares have been disposed of in accordance with the intended methods
of disposition by the Holders as set forth in the Resale Registration Statement,
(b) in the case of a particular state, a Holder has notified the Company that it
no longer requires an effective filing in such state in accordance with its
original request for filing or (c) the date on which the Resale Registration
Statement ceases to be effective.
5. Expenses. The Company shall bear all Registration Expenses incurred
in connection with the registration of the Registrable Shares pursuant to this
Agreement, except that each Holder shall be responsible for any brokerage or
underwriting commissions and taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer of Registrable
Shares sold by it and for any legal, accounting and other expenses incurred by
it.
6. Indemnification by the Company. The Company agrees to indemnify each
Holder and its officers, directors, employees, agents, representatives and
affiliates, and each person or entity, if any, that controls a Holder within the
meaning of the Securities Act, and each other person or entity, if any, subject
to liability because of his, her or its connection with a Holder (each, an
"Indemnitee"), against any and all losses, claims, damages, actions,
liabilities, costs and expenses (including without limitation reasonable fees,
expenses and disbursements of attorneys and other professionals), joint or
several, arising out of or based upon any violation by the Company of any rule
or regulation promulgated under the Securities Act applicable to the Company and
relating to action or inaction required of the Company in connection with any
Resale Registration Statement or Prospectus, or upon any untrue or alleged
untrue statement of
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material fact contained in the Resale Registration Statement or any Prospectus,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, that the
Company shall not be liable to such Indemnitee or any person who participates as
an underwriter in the offering or sale of Registrable Shares or any other
person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission made in such Resale Registration Statement or in
any such Prospectus in reliance upon and in conformity with information
regarding such Indemnitee or its plan of distribution or ownership interests
which was furnished in writing to the Company for use in connection with the
Resale Registration Statement or the Prospectus contained therein by such
Indemnitee or (ii) a Holder's failure to send or give a copy of the final,
amended or supplemented prospectus furnished to such Holder by the Company at or
prior to the time such action is required by the Securities Act to the selling
broker for delivery to the person claiming an untrue statement or alleged untrue
statement or omission or alleged omission if such statement or omission was
corrected in such final amended or supplemented prospectus.
7. Covenants of the Holder. Each of the Holders (severally and not
jointly) hereby agrees (a) to cooperate with the Company and to furnish to the
Company all such information concerning its plan of distribution and ownership
interests with respect to its Registrable Shares in connection with the
preparation of a Resale Registration Statement with respect to such Holder's
Registrable Shares and any filings with any state securities commissions as the
Company may reasonably request, (b) to deliver to the selling broker or to
otherwise cause delivery of the Prospectus contained in such Resale Registration
Statement to any purchaser of the shares covered by such Resale Registration
Statement from such Holder and (c) to indemnify the Company, its officers,
directors, employees, agents, representatives and affiliates, and each person,
if any, who controls the Company within the meaning of the Securities Act, and
each other person, if any, subject to liability because of his connection with
the Company, against any and all losses, claims, damages, actions, liabilities,
costs and expenses arising out of or based upon (i) any untrue statement or
alleged untrue statement of material fact contained in either such Resale
Registration Statement or the Prospectus contained therein, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, if and to the extent that such statement
or omission occurs from reliance upon and in conformity with written information
regarding such Holder, its plan of distribution or its ownership interests,
which was furnished to the Company by such Holder for use therein unless such
statement or omission was corrected in writing to the Company not less than
three (3) business days prior to the date of the final prospectus (as
supplemented or amended, as the case may be) or (ii) the failure by such Holder
to deliver to the selling broker or to otherwise cause to be delivered the
Prospectus contained in such Resale Registration Statement (as amended or
supplemented, if applicable) furnished by the Company to such Holder to any
purchaser of the shares covered by such Resale Registration Statement from such
Holder through no fault of the Company.
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8. Suspension of Registration Requirement; Restriction on Sales.
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement with respect to such Holder's Registrable Shares or
the initiation of any proceedings for that purpose. The Company shall use its
best efforts to obtain the withdrawal of any order suspending the effectiveness
of such a Registration Statement at the earliest possible moment.
(b) Notwithstanding anything else to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a Registration Statement shall be suspended
in the event and during such period as unforeseen circumstances exist (including
without limitation (i) an underwritten primary offering by the Company if the
Company is advised in writing by the underwriters that the sale of Registrable
Shares under the Registration Statement would impair the pricing or commercial
practicality of the primary offering or (ii) pending negotiations relating to,
or consummation of, a transaction or the occurrence of an event that would
require additional disclosure of material information by the Company in the
Registration Statement or such filing, as to which the Company has a bona fide
business purpose for preserving confidentiality or which renders the Company
unable to comply with SEC requirements) (such unforeseen circumstances being
hereinafter referred to as a "Suspension Event") that would make it impractical
or inadvisable to cause the Registration Statement or such filings to become
effective or to amend or supplement the Registration Statement, but such
suspension shall continue only for so long as such event or its effect is
continuing. The Company shall notify each Holder of the existence and, in the
case of circumstances referred to in clause (i) of this Section 8(b), nature of
any Suspension Event.
(c) Each Holder agrees if requested in writing by the Company in the
case of a Company-initiated non-underwritten offering or by the managing
underwriter or underwriters in a Company-initiated underwritten offering, not to
effect any public sale or distribution of any of the securities of the Company,
including a sale pursuant to Rule 144, during the 15-day period prior to, and
during the 60-day period beginning on, the date of effectiveness of the
registration statement relating to such Company-initiated offering.
9. Black-Out Period. Each Holder agrees that, following the
effectiveness of any Resale Registration Statement relating to Registrable
Shares of such Holder, such Holder will not effect any sales of the Registrable
Shares pursuant to the Resale Registration Statement or any filings with any
state securities commission at any time after such Holder has received notice
from the Company to temporarily suspend sales as a result of the occurrence or
existence of any Suspension Event so that the Company promptly may correct or
update the Resale Registration Statement or such filing. During such period,
the Company will not be obligated to effect redemptions of Units under an
Issuance Registration Statement. The Holder may recommence effecting sales of
the Shares pursuant to the Resale Registration Statement or such filings
following further notice to such effect from the Company, which notice shall be
given by
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the Company not later than five (5) business days after the conclusion
of any such Suspension Event.
10. Additional Shares. The Company, at its option, may register, under
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued Common Shares of the
Company or any Common Shares of the Company owned by any other shareholder or
shareholders of the Company.
11. Contribution. If the indemnification provided for in Sections 6 and 7
is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Indemnitee, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Indemnitee, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or in writing by the Indemnitee and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission; provided, however, that in no event shall the obligation of any
indemnifying party to contribute under this Section 11 exceed the amount that
such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under Sections 6 or 7 hereof
had been available under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 11 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 11, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of Shares exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
12. No Other Obligation to Register. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to any Holder
to register the Registrable Shares under the Securities Act.
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13. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified, or supplemented or waived without the prior written consent
of the Company and Holders holding in excess of two-thirds of the aggregate of
all Shares held by (or issuable to) all Holders.
14. Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, or registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided, that notices of a change of address shall be
effective only upon receipt thereof):
If to the Company: Boston Properties, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holders: As listed on the applicable Holder Signature Page,
including a copy to counsel as set forth therein.
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 8 and 9 hereof may be effected telephonically if promptly confirmed
in writing thereafter in the manner described above.
15. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
This Agreement may not be assigned by any Holder and any attempted assignment
hereof by a Holder will be void and of no effect and such Holder shall indemnify
the Company and the Partnership against any and all losses, claims, damages,
actions, liabilities, costs and expenses (including without limitation
reasonable fees, expenses and disbursements of attorneys and other
professionals), arising out of or based upon such attempted assignment;
provided, that, the Holder may assign its rights hereunder to any person to whom
such Holder may Dispose of Shares and/or Units pursuant to Section 2 hereof.
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16. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed wholly within said State.
18. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
19. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BOSTON PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
BOSTON PROPERTIES LIMITED PARTNERSHIP
By: Boston Properties, Inc., Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
13
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Date: March 26, 1999
Address for notice:
With a copy to:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Date: March 26, 1999
Address for notice:
With a copy to:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date: March 26, 1999
Address for notice:
With a copy to:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Date: March 30, 1999
Address for notice:
With a copy to:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
THE ESTATE OF
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive
Date: March 25, 1999
Address for notice:
With a copy to:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: March 26, 1999
Address for notice:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
THE JLH TRUST
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee
Date: March 10, 1999
Address for notice:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Date: March 26, 1999
Address for notice:
With a copy to:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Date: March 26, 1999
Address for notice:
With a copy to:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Date: March 26, 1999
Address for notice:
With a copy to:
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
Reference is made to that certain Lock-Up and Registration Rights Agreement
entered into on March 26, 1999 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the Holders named therein in connection with
the contribution and conveyance of partnership interests in 17M Associates. The
undersigned, by its execution hereof, agrees to be bound by all the terms of a
Holder thereunder.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date: March 26, 1999
Address for notice:
With a copy to:
SCHEDULE A
LIST OF HOLDERS
---------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Estate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The JLH Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
15
SCHEDULE B
PERMITTED DISTRIBUTEES
----------------------
None
16
