Exhibit 99.1
REGISTRATION RIGHTS AND LOCK-UP
AGREEMENT
BY AND AMONG
BOSTON PROPERTIES, INC.
A ND
THE HOLDERS NAMED
HEREIN
D ATED : S EPTEMBER 26, 2005
REGISTRATION RIGHTS AND LOCK-UP
AGREEMENT
This Registration Rights and Lock-Up
Agreement (this “Agreement”) is entered into as of
September 26, 2005 by and among Boston Properties, Inc., a
Delaware corporation (the “Company”), and the persons
named on Exhibit A hereto (collectively the
“Holders” and each individually as a
“Holder”).
WHEREAS, in connection with the
transactions contemplated by that certain Amended and Restated
Limited Liability Company Agreement, dated as of March 8,
2005, by and among Boston Properties Limited Partnership (the
“Partnership”) and 9 th and E Associates, LLC, a District of
Columbia limited liability company (the “Contribution
Agreement”), the Company desires to grant certain
registration rights to the Holders with respect to the shares of
common stock, par value $.01 per share (the “Common
Shares”), of the Company that may be received by Holders
pursuant to any conversion of the Units into Common Shares, whether
by exercise of a redemption right or otherwise;
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 a
Person that directly, or indirectly though one or more
intermediaries, controls, is controlled by, or is under common
control with a specified Person.
“Affiliate Holder” shall
mean a Holder that is an Affiliate of the Company (or that would be
an Affiliate of the Company if all Units held by such Holder were
exchanged for Common Shares).
“Common Shares” shall
mean the common stock, par value $.01 per share, of the
Company.
“Company” shall have the
meaning set forth in the preamble to this Agreement.
“Company Offering” shall
have the meaning set forth in Section 9(c)
hereof.
“Contribution Agreement”
shall have the meaning set forth in the preamble to this
Agreement.
“Dispose of” or
“Disposition” shall have the meaning set forth in
Section 2 hereof.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
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“Filing Date” shall have
the meaning set forth in Section 3(a)
hereof.
“Holder” or
“Holders” shall have the meaning set forth in the
preamble to this Agreement.
“Indemnitee” shall have
the meaning set forth in Section 6 hereof.
“Issuance Registration
Expiration Date” shall have the meaning set forth in
Section 3(a) hereof.
“Issuance Registration
Statement” shall have the meaning set forth in
Section 3(a) hereof.
“Lock-up Period” shall
have the meaning set forth in Section 2
hereof.
“NASD” shall mean the
National Association of Securities Dealers, Inc.
“NYSE” shall mean the
New York Stock Exchange.
“Offering Blackout
Period” shall have the meaning set forth in
Section 9(c) hereof.
“Partnership” shall have
the meaning set forth in the recitals to this Agreement.
“Partnership Agreement”
shall mean the Second Amended and Restated Agreement of Limited
Partnership of Boston Properties Limited Partnership by and among
Boston Properties, Inc. and the Limited Partners named therein,
dated as of June 29, 1998, as amended.
“Person” shall mean an
individual, partnership, limited liability company, corporation,
trust, or unincorporated organization, or a government or agency or
political subdivision thereof.
“Prospectus” shall mean
the prospectus included in a Registration Statement, including any
preliminary prospectus, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Shares covered by such Registration
Statement, and by all other amendments and supplements to such
prospectus, including post-effective amendments, and in each case
including all material incorporated by reference
therein.
“Registrable Shares”
(a) when used with respect to a non-Affiliate Holder, shall
mean all Shares of such Holder, excluding (i) Shares for which
a Registration Statement relating to the issuance or sale thereof
shall have become effective under the Securities Act and which have
been issued or disposed of, as applicable, under such Registration
Statement, (ii) Shares sold pursuant to Rule 144 or
(iii) Shares eligible for sale pursuant to Rule 144(k) (or any
successor provision); (b) when used with respect to an
Affiliate Holder, shall mean the Shares of such Affiliate Holder,
excluding (i) Shares for which a Registration Statement
relating to the sale thereof by such Holder shall have become
effective under the Securities Act and which have been disposed of
under such Registration Statement, (ii) Shares sold pursuant
to Rule 144 or (iii) Shares eligible for sale pursuant to Rule
144(k) (or any successor provision); and (c) when used without
reference to a Holder, shall mean the Registrable Shares of all
Holders. For clarification, it is understood that once Shares have
been issued to a non-Affiliate Holder under an effective
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Registration Statement, such Shares are no
longer Registrable Shares no matter who holds such Shares, and,
accordingly, neither the non-Affiliate Holder nor any subsequent
holder (whether or not such holder is an Affiliate of the Company)
of such Shares has any further registration rights with respect to
such Shares under this Agreement.
“Registration Expenses”
shall mean any and all expenses incident to the performance of or
compliance with this Agreement, including without limitation:
(i) all registration and filing fees; (ii) all fees and
expenses associated with a required listing of the Registrable
Shares on any securities exchange; (iii) fees and expenses
with respect to filings required to be made with the NYSE or the
NASD; (iv) fees and expenses of compliance with securities or
“blue sky” laws (including reasonable fees and
disbursements of counsel for the underwriters or holders of
securities in connection with blue sky qualifications of the
securities and determination of their eligibility for investment
under the laws of such jurisdictions); (v) printing expenses,
messenger, telephone and delivery expenses; and (vi) fees and
disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by
the Company (including the expenses of any comfort letters or costs
associated with the delivery by independent registered public
accountants of a comfort letter or comfort letters);
provided , however , that Registration Expenses shall
not include, and the Company shall not have any obligation to pay,
any underwriting fees, discounts, or commissions attributable to
the sale of such Registrable Shares, or any legal fees and expenses
of counsel to any Holder and any underwriter engaged by any
Holder.
“Registration Statement”
shall mean any registration statement of the Company which covers
the issuance or resale of any of the Registrable Shares under the
Securities Act 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 Shelf Registration
Expiration Date” shall have the meaning set forth in
Section 3(b) hereof.
“Resale Shelf Registration
Statement” shall have the meaning set forth in
Section 3(b) hereof.
“Rule 144” means Rule
144 under the Securities Act (or any successor
provision).
“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” shall mean all
Common Shares issued or issuable to all Holders upon redemption or
in exchange for Units held by such Holders pursuant to the
Partnership Agreement and any other Common Shares issued as a
dividend with respect to, or in exchange for or in replacement of
such Common Shares.
“Suspension Event” shall
have the meaning set forth in Section 9(b)
hereof.
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“Units” shall mean the
units of limited partner interests in the Partnership held by the
Holders (or any other interests issued on account of those units as
a result of a unit split, combination, distribution or other
similar recapitalization event applying to all such
units).
2. Lock-up Agreement . Each
Holder agrees that for one (1) year from the date of original
issuance of the Units to such Holder, without the prior written
consent of the Company, it will not pledge, sell, contract to sell,
grant any options for the sale of, seek the redemption of or
otherwise dispose of, directly or indirectly (collectively,
“Dispose of” and any related action a
“Disposition”), any Units acquired by such Holder
pursuant to the Contribution Agreement (the “Lock-up
Period”); provided , however , that the
foregoing shall not prevent any Holder from (i) negotiating
for the sale of Units where neither the obligation to sell nor the
obligation to buy becomes binding until the expiration of the
Lock-up Period or (ii) delivering a Redemption Notice (as
defined in the Partnership’s partnership agreement) in
respect of any Units during the last ten business days of the
Lock-up Period (i.e. such that the redemption will not take place
until the expiration of the Lock-up Period).
3. Registration .
(a) Filing of Issuance
Registration Statement . Subject to the provisions of
Section 3(b) below, the Company will file with the SEC a
Registration Statement on Form S-3 (the “Issuance
Registration Statement”) under Rule 415 under the Securities
Act, relating to (i) the issuance to the Holders of the Shares
in exchange for the Units acquired pursuant to the Contribution
Agreement and (ii) the sale by the Holders at the time of such
filing of all of their Registrable Shares in accordance with the
terms hereof (and, in the event that a Person not named in such
filing as a potential selling stockholder becomes a Holder of Units
or Registrable Shares and is also an Affiliate Holder, the Company
will make such changes to the previous filing hereunder as are
necessary to include such Affiliate Holder as a potential selling
stockholder with respect to its Registrable Shares under the
Issuance Registration Statement), such filing to be made on a date
(the “Filing Date”) which is no earlier than two weeks
before the expiration of the Lock-up Period and no later than the
first day after the date of the expiration of the Lock-up Period;
provided , however , that, notwithstanding the
foregoing, the Filing Date may be such other date as may be
required under applicable provisions of the Securities Act or as
may be required by the SEC pursuant to its interpretation of
applicable federal securities laws and the rules and regulations
promulgated thereunder. The Company shall use its reasonable
efforts to cause the Issuance Registration Statement to be declared
effective by the SEC for all of the Registrable Shares covered
thereby within ninety (90) days thereafter. In the event that
the Company is unable to cause such Issuance Registration Statement
to be declared effective by the SEC within ninety (90) days
following the Filing Date, then the provisions of Section 3(b)
shall apply. Notwithstanding the availability of rights under
Section 3(b), the Company shall continue to use its reasonable
efforts to cause the Issuance Registration Statement to be declared
effective by the SEC until such time as the Company shall file and
have declared effective a Resale Shelf Registration Statement (as
hereinafter defined) in accordance with Section 3(b). The
Company agrees to use its reasonable efforts to keep the Issuance
Registration Statement continuously effective until the date on
which (i) all Holders have tendered their Units for redemption
and the redemption price therefor (whether paid in cash or in
Common Shares) has been delivered to the Holders and (ii) the
Affiliate Holders (A) no longer hold any Registrable Shares or
(B) may sell all of the Registrable Shares held by such
Affiliate Holders pursuant to Rule 144(k) (or any successor
provision) (the “Issuance Registration Expiration
Date”).
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(b) Registration Statement
Covering Resale of Common Shares . In the event that, for any
reason, the Company determines that it is unable or undesirable to
cause an Issuance Registration Statement to be declared effective
by the SEC within ninety (90) days following the Filing Date
or (except as otherwise permitted by Section 9) is unable or
it is impracticable to keep such Issuance Registration Statement
continuously effective until the Issuance Registration Expiration
Date, the Company shall file with the SEC a Registration Statement
on Form S-3 (a “Resale Shelf Registration Statement”)
under Rule 415 under the Securities Act relating to the resale by
the Holders of their Registrable Shares. The Company shall use its
reasonable efforts to cause such Resale Shelf Registration
Statement to be declared effective by the SEC as soon as
practicable thereafter. The Company agrees to use its reasonable
efforts to keep the Resale Shelf Registration Statement, after its
date of effectiveness, continuously effective until the date (the
“Resale Shelf Registration Expiration Date”) which is
the earliest of (a) the date on which all Registrable Shares
have been disposed of by the Holders or (b) the date on which
all Registrable Shares are eligible for sale pursuant to Rule
144(k) (or any successor provision). After the Company has filed
the Resale Shelf Registration Statement, any obligation of the
Company to file an Issuance Registration Statement pursuant to
Section 3(a) above with respect to the Registrable Shares
registered by the Resale Shelf Registration Statement shall be
suspended for as long as the Resale Shelf Registration Statement
remains effective.
(c) Notification and Distribution
of Materials . The Company shall notify the Holder of the
effectiveness of any Registration Statement applicable to the
Shares and shall furnish to the Holders such number of copies of
the Registration Statement (including any amendments, supplements
and exhibits), the Prospectus contained therein (including each
preliminary prospectus and all related amendments and supplements)
and any documents incorporated by reference in the Registration
Statement or such other documents as the Holders may reasonably
request in order to facilitate the sale of the Registrable Shares
in the manner described in the 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 issued or disposed of in accordance with the intended methods
of disposition by the Holders or issuance by the Company as set
forth in the Registration Statement or (b) the date on which
the Registration Statement is no longer required to be effective
under the terms of this Agreement. Upon twenty (20) business
days’ notice, the Company shall file any supplement or
post-effective amendment to the Registration Statement with respect
to the plan of distribution or a Holder’s ownership interests
in his, her or its Registrable Shares that is reasonably necessary
to permit the sale of such Holder’s Registrable Shares
pursuant to the Registration Statement. The Company shall file any
necessary listing applications or amendments to the existing
applications to cause the Shares registered under any Registration
Statement to be then liste
