Exhibit 99.6
NON-COMPETITION AGREEMENT
AGREEMENT (this "Agreement") made as of the 30th day of June, 1998 by and
between Xxxx X. Xxxxxx residing at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Xx. Xxxxxx") and Boston Properties, Inc., a Delaware corporation, with a
principal place of business at 0 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(together with its subsidiaries, the "Company").
WHEREAS, Xx. Xxxxxx is a party to a certain Contribution and Conveyance
Agreement dated as of June 30, 1998 (as may be amended, supplemented or modified
from time to time, the "Contribution Agreement") providing for the contribution
and conveyance to the Company of certain partnership interests and assets; and
WHEREAS, it is a condition to the closing of the Contribution Agreement
that Xx. Xxxxxx be appointed to the Board of Directors of the Company (the
"Board"); and
WHEREAS, it is a condition to such appointment that Xx. Xxxxxx enter into
the non-competition, confidentiality and other agreements set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, Xx.
Xxxxxx and the Company agree as follows:
1. Noncompetition.
(a) Except as provided in subparagraph 1(c) below, Xx. Xxxxxx
covenants and agrees that for so long as he serves as a director of the Company,
Xx. Xxxxxx shall not, without the prior written consent of the Company (which
shall be authorized by approval of the Board, including the approval of a
majority of the independent Directors of the Company), directly or, to his
knowledge indirectly, take any of the following actions (any such action, a
"Restricted Action") except on behalf of the Company or its affiliates or
pursuant to a written agreement with the Company:
(i) engage, participate or assist in, either individually or as an
owner, partner, employee, consultant, director, officer, trustee, or agent of
any business that engages or attempts to engage in, directly or indirectly, the
acquisition, development, construction, operation, management, or leasing of any
commercial real estate property (other than any property acquired, developed,
constructed, operated, managed or leased by any company or person incidentally
as part of its business, primarily for its own occupancy; provided that the
reference to "business" in this clause (i) shall not include any person or
entity which is not meaningfully engaged in commercial real estate activities
for profit and for which commercial real estate activities are an insignificant
part of its overall business activities;
(ii) intentionally interfere with, disrupt or attempt to
disrupt the relationship, contractual or otherwise, between the Company or its
affiliates and any tenant, supplier, contractor, lender, employee, or
governmental agency or authority; or
(iii) compete for, solicit, divert, or take away, or attempt
to divert or take away, any of the tenants or employees of the Company or its
affiliates, either for himself or for any other business, operation,
corporation, partnership, association, agency, or other person or entity.
(b) Notwithstanding the foregoing, none of the following actions
shall constitute Restricted Actions:
(i) acquisitions of, sales of, exercise of voting rights,
exercise or conversion of options or convertible
securities, and other actions with respect to, Minority
Interest Passive Investments;
(ii) actions taken in the capacity as a director of, or advisor
to, any charitable or other tax exempt organization on
behalf of such organization;
(iii) any action taken in connection with the Contribution
Agreement, the Properties Under Development Agreement, or
the Development Agreement (but only with respect to the
Service Companies, the Properties Under Development, the
Development Properties and any Withdrawn Properties under
(and as defined in) such agreements);
(iv) any action involving the management, maintenance and
operation of the following property interests currently
owned, leased or managed by Xxxx Xxxxxx: Brunswick Hilton
Hotel & Tower in East Brunswick, New Jersey; and East
Brunswick Racquet Club in East Brunswick, New Jersey.
(v) any action taken in his capacity as a member of the Board;
or
(vi) any action taken in accordance with the Management
Agreement made as of April 18, 1995 between Essential
Facilities XIV, Inc. and Diversified Management Services,
L.P.
A "Minority Interest Passive Investment" means (x) an investment in any
securities (including partnership interests or membership interests in limited
liability companies) that represent a non-controlling, minority interest in an
entity or (y) an investment made in any debt securities or loans or the making
of loans (a "Debt Investment"), in the case of either (x) or (y) with the
purpose or intent of obtaining a return on such investment but without
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management by Xx. Xxxxxx of the property or business to which such investment
directly or indirectly relates and without any meaningful business or strategic
consultation by Xx. Xxxxxx with such entity.
(c) This Paragraph 1 shall not apply and shall be of no force or
effect following a Change of Control. For this purpose a "Change of Control"
shall be deemed to occur if persons who, as of the effective date of Xx. Xxxxxx'
appointment to the Board, constitute the Company's Board of Directors (the
"Incumbent Directors") cease for any reason, including, without limitation, as a
result of a tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board of Directors, provided that any
person becoming a director of the Company subsequent to such date whose election
was approved by a vote of at least two-thirds of the Incumbent Directors or
whose nomination for election was approved by a nominating committee comprised
of Incumbent Directors shall, for purposes of this Agreement, be considered an
Incumbent Director.
2. Records/Nondisclosure/Company Policies.
(a) General. All records, financial statements and similar documents
obtained, reviewed or compiled by Xx. Xxxxxx in the course of the performance by
him of his duties to the Company, whether or not confidential information or
trade secrets, shall be the exclusive property of the Company. Xx. Xxxxxx shall
have no rights in such documents under any circumstances.
(b) Confidential Information. For a period of three years following
the date upon which Xx. Xxxxxx ceases to serve as a director of the Company,
except as required by applicable law, the rules of the New York Stock Exchange
or as may be required in connection with any registration under the Registration
Rights Agreement (as defined in the Contribution Agreement) or otherwise in
connection with the performance of his duties to the Company, Xx. Xxxxxx will
not disclose to any person or entity (other than the Company, other members of
the Board or executive officers of the Company or any attorney engaged by Xx.
Xxxxxx (provided that Xx. Xxxxxx shall obtain appropriate assurances as to the
confidential treatment of such information by any such attorney)), or use for
his own benefit or gain, any confidential information of the Company obtained by
him incident to his role as a director of the Company or otherwise. Xx. Xxxxxx
shall take all reasonable steps to safeguard any confidential information and to
protect such confidential information against disclosure, misuse, loss, or
theft. The term "confidential information" includes, without limitation,
financial information, business plans, prospects, and opportunities which have
been discussed or considered by the management of the Company, but does not
include any information which has become part of the public domain or which has
been generally disseminated on a non-confidential basis to third parties, in
either case by means other than Xx. Xxxxxx' non-observance of his obligations
hereunder.
This Paragraph 2 shall survive the termination of this Agreement.
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3. Reasonable and Necessary Restrictions. Xx. Xxxxxx acknowledges and
agrees that the restrictions contained in Paragraphs 1 and 2 are reasonable,
fair and equitable in scope, term and duration, in view of the business in which
the Company is engaged, Xx. Xxxxxx' role as a director of the Company and Xx.
Xxxxxx' participation as a party to the Contribution Agreement and related
agreements. Xx. Xxxxxx further acknowledges that such restrictions are
necessary to protect the legitimate business interests of the Company and are
supported by the substantial benefits that will accrue to him as a result of the
closing of the Contribution Agreement and related agreements and his appointment
as a director of the Company.
4. Conflicting Agreements. Xx. Xxxxxx hereby represents and warrants
that the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which he
is a party or is bound, and that he is not now subject to any covenants against
competition or similar covenants which would affect the performance of his
obligations hereunder.
5. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee, on the date of such
receipt or (ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked. Addresses for
notice for the parties are as shown above, or as subsequently modified by
written notice.
6. Miscellaneous. This Agreement (i) constitutes the entire agreement
between the parties concerning the subjects hereof and supersedes any and all
prior agreements or understandings and (ii) in connection with a sale of
substantially all of the assets of Boston Properties, Inc., or a merger or
consolidation of Boston Properties, Inc. into another person, may be assigned by
the Company and shall be binding upon, and inure to the benefit of, the
Company's successors and assigns. Headings herein are for convenience of
reference only and shall not define, limit or interpret the contents hereof.
The term "person" as used herein includes any individual, corporation,
partnership, limited liability company, trust or other entity.
7. Amendment. No term or provision of this Agreement may be amended,
modified or supplemented except by the mutual consent of the parties in writing.
8. Arbitration; Other Disputes. Any dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively by arbitration
in New York, New York, in accordance with the rules of the American Arbitration
Association then in effect. The award of the arbitrators shall be final and
binding and non-appealable and may if necessary be enforced by any court of
competent jurisdiction. Notwithstanding the foregoing, either party may apply
to any court located in New York, New York or Boston, Massachusetts, with
competent jurisdiction, and seek interim provisional injunctive or equitable
relief until the arbitration award is rendered or the controversy is otherwise
resolved.
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9. Severability. If any provision of this Agreement shall to any extent
be held void or unenforceable (as to duration, scope, activity, subject or
otherwise) by an arbitration in accordance with paragraph 8 or by a court of
competent jurisdiction, such provision shall be deemed to be modified so as to
constitute a provision conforming as nearly as possible to the original
provision while still remaining valid and enforceable. In such event, the
remainder of this Agreement (or the application of such provision to persons or
circumstances other than those in respect of which it is deemed to be void or
unenforceable) shall not be affected thereby. Each other provision of this
Agreement, unless specifically conditioned upon the voided aspect of such
provision, shall remain valid and enforceable to the fullest extent permitted by
law; any other provisions of this Agreement that are specifically conditioned on
the voided aspect of such invalid provision shall also be deemed to be modified
so as to constitute a provision conforming as nearly as possible to the original
provision while still remaining valid and enforceable to the fullest extent
permitted by law.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard, to the
fullest extent permitted by law, to any conflicts of law rules which might apply
the laws of any other jurisdiction).
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IN WITNESS WHEREOF, this Agreement is entered into as of the date and year
first above written.
BOSTON PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx
Senior Vice President
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
[Signature Page to Non-Competition Agreement]
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