Exhibit 99.2(c)
AMENDED AND RESTATED
REGISTRATION RIGHTS AND VOTING AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AND VOTING
AGREEMENT (this "Agreement"), is made and entered into as of this 16th day of
December, 1998, by and between CORNERSTONE PROPERTIES INC., a Nevada corporation
(the "Company"), DUTCH INSTITUTIONAL HOLDING COMPANY, INC., a Delaware
corporation ("DIHC"), and STICHTING PENSIOENFONDS VOOR DE GEZONDHEID,
GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN, a stichting formed according to the
laws of The Netherlands ("PGGM").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Stock Purchase
Agreement (the "Purchase Agreement"), dated as of August 18, 1997, between the
Company and DIHC, and that certain Loan Purchase Agreement (the "Loan
Agreement") dated as of August 18, 1997, between the Company and PGGM, the
Company acquired certain shares of capital stock, partnership interests and
loans from DIHC and PGGM and issued shares of its Common Stock (as defined
below) to DIHC and PGGM; and
WHEREAS, in connection with the Purchase Agreement, the
Company, DIHC and PGGM entered into a Registration Rights and Voting Agreement,
dated as of October 27, 1997 (the "Registration Rights Agreement"), which
provided (i) for the registration under the Securities Act of 1933, as amended,
of certain shares of Common Stock (ii) for the nomination and election of
certain persons to serve on the Board of Directors of the Company, (iii) for
certain restrictions regarding the transfer of shares of Common Stock and (iv)
for certain covenants regarding the operation of the Company's business; and
WHEREAS, pursuant to the terms of that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated as of June 22, 1998, as
amended, between the Company and PGGM, the Company is issuing additional shares
of its Common Stock to PGGM; and
WHEREAS, in connection with the Stock Purchase Agreement, the
parties desire to amend and restate the Registration Rights Agreement on the
terms set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. CERTAIN OTHER DEFINITIONS. Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Purchase
Agreement. The capitalized terms set forth below (in their singular and plural
forms as applicable) shall have the following meanings:
1.1 "AFFILIATE" means, with respect to any specified
Person, any other Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified Person.
1.2 "BUSINESS COMBINATION" means any one of the following
transactions:
(i) Any merger or consolidation of the Company or any
subsidiary thereof with any other Person (other than the Company);
(ii) Any sale, lease, exchange, mortgage, pledge, transfer
or other disposition by the Company (in one transaction or a series of
transactions) to or with any Person of all or a substantial portion of
the assets of the Company and its subsidiaries taken as a whole;
(iii) The adoption of any plan or proposal for the
liquidation or dissolution of the Company proposed by or on behalf of
any Holder or its Affiliates that together own 25% or more of the
issued and outstanding Common Stock; or
(iv) Any reclassification of securities (including any
reverse stock split), recapitalization of the Company, or any merger
or consolidation of the Company with any subsidiary thereof or any
other transaction to which the Company is a party which has the
effect, directly or indirectly, of increasing the Holder Interest of
such Holder or its Affiliates that together own 25% or more of the
issued and outstanding Common Stock (whether or not with or into or
otherwise involving such Holder or any of its Affiliates).
1.3 "CLOSING DATE" has the meaning specified in Section
2.04 of the Purchase Agreement.
1.4 "COMMISSION" shall mean the United States Securities
and Exchange Commission and any successor federal agency having similar powers.
1.5 "COMMON STOCK" shall mean the common stock without
par value of the Company.
1.6 "CONTROL" (including the terms "CONTROLLED BY" and
"UNDER COMMON CONTROL WITH"), with respect to the relationship between or among
two or more Persons, means the possession, directly or indirectly or as trustee,
personal representative or executor, of the power to direct or cause the
direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee, personal
representative or executor, by contract or otherwise, including, without
limitation, the ownership, directly or indirectly, of securities having the
power to elect a majority of the board of directors or similar body governing
the affairs of such Person.
1.7 "CURRENT MARKET PRICE" of each share of Common Stock
shall mean (i) the average of the closing prices of the Common Stock for the
five New York Stock Exchange trading days immediately preceding the day in
question as reported by THE WALL STREET JOURNAL under the New York Stock
Exchange Composite Transactions quotation system (or under any successor
quotation system) or, if the Common Stock is no longer traded on the New York
Stock Exchange under the quotation system under which such closing prices are
reported or, if THE WALL STREET JOURNAL no longer reports such closing prices,
such closing prices as reported by a newspaper or trade journal selected by the
Company or (ii) if no such closing prices are available on such dates, the fair
market value as determined in good faith by the Board of Directors of the
Company.
1.8 "DEMAND OFFERING" shall mean a offering required to
be effected pursuant to Section 3.3 hereof.
1.9 "DEMAND PROSPECTUS" shall mean the prospectus
included in the Shelf Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, including any supplement
relating to the terms of the offering of any portion of the Demand Offering
Securities covered by the Demand Prospectus, and in each case including all
material incorporated by reference therein.
1.10 "DEMAND OFFERING SECURITIES" shall mean the Shares
held by DIHC and PGGM or any subsequent Holder to whom this Agreement has, or
rights to cause the Company to register Shares in accordance with Section 3
have, been assigned pursuant to Section 9, excluding (i) Shares that have been
disposed of under the Shelf Registration Statement or any other effective
registration statement, (ii) Shares sold or otherwise transferred pursuant to
Rule 144 under the Securities Act, and (iii) those Shares held by any single
Holder if such Holder holds less than 1% of the issued and outstanding shares of
Common Stock and all of such Shares are eligible for sale pursuant to Rule 144
under the Securities Act and all of such Holder's Shares could be sold by such
Holder in a single transaction under Rule 144 under the Securities Act.
1.11 "DEMAND OFFERING EXPENSES" shall mean any and all
expenses incurred by the Company in connection with Demand Offerings, including,
without limitation: (i) all Commission, stock exchange and National Association
of Securities Dealers, Inc. ("NASD") registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with qualification of any of the Demand Offering Securities under any
state securities or blue sky laws and the preparation of a blue sky memorandum)
and compliance with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing,
printing and distributing any Demand Prospectus, certificates and other
documents relating to the performance of and compliance with this Agreement,
(iv) all fees and expenses incurred in connection with the listing, if any, of
any of the Demand Offering Securities on any U.S. securities exchange or
exchanges, and (v) the fees and disbursements of counsel for the Company and of
the independent public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance. Demand Offering Expenses shall specifically exclude
Selling Expenses and the fees and expenses of counsel representing the Holders,
all of which shall be borne by the Holders in all cases.
1.12 "DEMAND OFFERING REQUEST" shall have the meaning set
forth in Section 3.3(a) hereof.
1.13 "DIHC" shall have the meaning set forth in the
Preamble.
1.14 "ENCUMBRANCE" means any security interest, pledge,
mortgage, lien (including, without limitation, environmental and tax liens),
charge, encumbrance, adverse claim, preferential arrangement, or restriction of
any kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership.
1.15 "EQUITY SECURITY" means any (i) Common Stock, (ii)
securities of the Company convertible into or exchangeable for Common Stock, and
(iii) options, rights, warrants and similar securities issued by the Company to
acquire Common Stock.
1.16 "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
1.17 "HOLDER" shall mean DIHC and PGGM (and their
respective transferees of Shares as permitted by this Agreement to whom this
Agreement has, or rights to cause the Company to register Shares in accordance
with Section 3 have, been assigned pursuant to Section 9).
1.18 "HOLDER INTEREST" means, with respect to any Holder,
the percentage of issued and outstanding Common Stock represented by the shares
of Common Stock owned by such Holder and its Affiliates; PROVIDED, HOWEVER, that
shares of Common Stock indirectly owned through an intermediary (i) of which
such Holder owns less than 1% of the issued and outstanding common shares or
(ii) in connection with which Holder has no right to direct the vote of shares
of the Company shall not be included in the Holder Interest of such Holder.
1.19 "INDEBTEDNESS" means, with respect to any Person, (a)
all indebtedness of such Person, whether or not contingent, for borrowed money,
(b) all obligations of such Person for the deferred purchase price of property
or services, (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other
title retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations of such Person as lessee under leases that have been or should
be, in accordance with U.S. GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities, (g) all obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for value any capital stock of such
Person or any warrants, rights or options to acquire such capital stock, valued,
in the case of redeemable preferred stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (h) the
greater of (i) the principal amount and (ii) the redemption value of any
perpetual preferred stock issued by such Person, (i) all Indebtedness of others
referred to in clauses (a) through (f) above guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (i) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness, (ii)
to purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness against loss,
(iii) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (iv) otherwise to assure
a creditor against loss, and (j) all Indebtedness referred to in clauses (a)
through (f) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Encumbrance on
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness.
1.20 "INCUMBENT DIRECTORS" shall mean (i) all of the
individuals constituting the board of directors of the Company on the date
hereof, (ii) all individuals hereafter designated as nominees to the board of
directors by the New York State Teachers' Retirement System pursuant to a letter
agreement dated November 22, 1996, (iii) all individuals hereafter designated as
nominees to the board of directors by Hexalon Real Estate, Inc. pursuant to a
letter agreement dated November 7, 1996, (iv) one individual at any time
hereafter designated by Deutsche Bank AG as a nominee to the board of directors,
and (v) Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. Hack as
nominees to the board of directors pursuant to an agreement dated as of June 22,
1998, as amended.
1.21 "INITIAL PERCENTAGE" means the percentage of issued
and outstanding Common Stock represented immediately after the Closing by the
shares issued pursuant to the Purchase Agreement and the Loan Agreement.
1.22 "LEVERAGE RATIO" shall mean the ratio of the
Company's Indebtedness to the Company's Total Market Capitalization.
1.23 "MAXIMUM NUMBER" shall having the meaning set forth
in Section 3.3(e) hereof.
1.24 "PERMITTED TRANSFEREE" means any (i) mutual fund
company, pension fund, insurance company, investment company, any state, city,
or county, or any agency or instrumentality of a state, city, or county, or any
state university or state college, and any retirement system for the benefit of
employees of any of the foregoing, any religious or educational organization or
other passive institutional investor or (ii) any non-U.S. Person (as defined in
Section 9.02 of the Charter Amendment) that is not controlled by U.S. Persons
(as defined in the Charter Amendment).
1.25 "PERSON" means any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other entity, as
well as any syndicate or group that would be deemed to be a person under Section
13(d)(3) of the Exchange Act.
1.26 "PGGM" shall have the meaning set forth in the
Preamble.
1.27 "PIGGYBACK REGISTRATION" shall have the meaning set
forth in Section 3.6(a) hereof.
1.28 "PIGGYBACK REGISTRATION REQUEST" shall have the
meaning set forth in Section 3.6(a) hereof.
1.29 "PUBLIC OFFERING" means a public offering of Common
Stock pursuant an effective registration statement under the Securities Act.
1.30 The terms "REGISTER", "REGISTERED" and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and the declaration or ordering
of the effectiveness of such registration statement by the Commission.
1.31 "SECURITIES ACT" means the Securities Act of 1933, as
amended.
1.32 "SELLING EXPENSES" shall mean all underwriting
discounts and selling commissions and transfer taxes applicable to the sale of
Shelf Registrable Securities or Demand Offering Securities and disbursements of
underwriters.
1.33 "SHARES" shall mean (a) the shares of Common Stock
issued pursuant to the Purchase Agreement, the Loan Agreement and the Stock
Purchase Agreement and (b) shares of Common Stock or any other securities which
are hereafter issued with respect to the shares referred to in Section 1.33(a)
by way of conversion, exchange, reclassification, dividend or distribution,
whether or not such securities have been offered and sold to the public.
1.34 "SHELF PROSPECTUS" shall mean the prospectus included
in the Shelf Registration Statement, including any preliminary prospectus, and
any amendment or supplement thereto, including any supplement relating to the
terms of the offering of any portion of the Shelf Registrable Securities covered
by the Shelf Registration Statement, and in each case including all material
incorporated by reference therein.
1.35 "SHELF REGISTRATION" shall mean the registration
required to be effected pursuant to Section 3.1 hereof.
1.36 "SHELF REGISTRABLE SECURITIES" shall mean the Shares
held by DIHC and PGGM or any subsequent Holder to whom this Agreement has, or
rights to cause the Company to register Shares in accordance with Section 3
have, been assigned pursuant to Section 9, excluding (i) Shares that have been
disposed of under the Shelf Registration Statement or any other effective
registration statement, (ii) Shares sold or otherwise transferred pursuant to
Rule 144 under the Securities Act, and (iii) those Shares held by any single
Holder if such Holder holds less than 1% of the issued and outstanding shares of
Common Stock and all of such Shares are eligible for sale pursuant to Rule 144
under the Securities Act and all of such Holder's Shares could be sold by such
Holder in a single transaction under Rule 144 under the Securities Act.
1.37 "SHELF REGISTRATION EXPENSES" shall mean any and all
expenses incident to performance of or compliance with this Agreement,
including, without limitation: (i) all Commission, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in connection
with compliance with state securities or "blue sky" laws (including reasonable
fees and disbursements of counsel in connection with qualification of any of the
Shelf Registrable Securities under any state securities or blue sky laws and the
preparation of a blue sky memorandum) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing the Shelf Registration Statement, any
Shelf Prospectus, certificates and other documents relating to the performance
of and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Shelf Registrable Securities
on any securities exchange or exchanges, and (v) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance. Shelf Registration
Expenses shall specifically exclude Selling Expenses and the fees and
disbursements of counsel representing the Holders, all of which shall be borne
by the Holders in all cases.
1.38 "SHELF REGISTRATION NOTICE" shall have the meaning
set forth in Section 3.2(b) hereof.
1.39 "SHELF REGISTRATION STATEMENT" shall mean each
registration statement of the Company (and any other entity required to be a
registrant with respect to such registration statement pursuant to the
requirements of the Securities Act) that covers all of the Shelf Registrable
Securities to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act, or any similar rule that
may be adopted by the Commission, and all amendments (including post-effective
amendments) to such registration statement, and all exhibits thereto and
materials incorporated by reference therein.
1.40 "STANDSTILL PERIOD" means, with respect to any
Holder, a period of time commencing on the Closing Date and terminating on
October 27, 2000 (the date three years after the Closing Date).
1.41 "TOTAL MARKET CAPITALIZATION" shall mean the sum of
(i) the Company's total Indebtedness, plus (ii) the product of (x) the number of
issued and outstanding shares of Common Stock, PLUS the number of shares of
Common Stock issuable upon conversion of issued and outstanding preferred stock
(other than convertible preferred stock subject to redemption at the option of
the holder) and issued and outstanding Units TIMES (y) the Current Market Price.
1.42 "U.S. GAAP" means United States generally accepted
accounting principles and practices in effect from time to time applied
consistently throughout the periods involved.
1.43 "UNITS" means units of limited partnership in
Cornerstone Properties Limited Partnership, a Delaware limited partnership.
2. RESTRICTIONS ON TRANSFER.
2.1 REPRESENTATIONS AND WARRANTIES OF PGGM. (a) PGGM and
DIHC hereby represent, acknowledge, covenant and agree as follows: (i) the
Shares are being acquired for PGGM's and DIHC's own account for investment and
not with a view to any distribution or public offering within the meaning of the
Securities Act or any state securities law; (ii) the Shares have not been
registered under the Securities Act or any state securities law; (iii) PGGM and
DIHC is each an "accredited investor" within the meaning of Rule 501 promulgated
by the Commission pursuant to the Securities Act; (iv) PGGM and DIHC have been
furnished with all information that PGGM or DIHC has requested for purposes of
evaluating the Company and each has had an opportunity to ask questions of and
receive answers from the Company regarding its business, assets, results of
operations, and financial condition; and (v) PGGM and DIHC will not sell or
otherwise transfer any of the Shares except upon the terms and conditions
specified herein.
2.2 LEGENDS. Except as provided in Section 2.4, each
certificate representing the Shares issued to PGGM and DIHC or transferred to a
subsequent Holder pursuant to Section 2.3 shall include, in addition to the
legends relating to provisions of the Company's articles of incorporation,
legends in substantially the following form, PROVIDED that the first such legend
shall not be required if such transfer is being made in connection with a sale
that is (i) pursuant to a Public Offering or (ii) exempt from registration
pursuant to Rule 144 under the Securities Act or if the
opinion of counsel referred to in Section 2.3 is to the further effect that such
legend is not required in order to ensure compliance with the Securities Act;
PROVIDED FURTHER, that the second such legend shall not be required if Sections
7.6 and 8 hereof do not apply to such subsequent Holder:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES ACT AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED IN THE AMENDED AND RESTATED REGISTRATION
RIGHTS AND VOTING AGREEMENT DATED AS OF DECEMBER 16, 1998,
AMONG THE ISSUER AND THE OTHER PARTY(IES) NAMED THEREIN, A
COMPLETE AND CORRECT COPY OF WHICH IS AVAILABLE FOR INSPECTION
AT THE PRINCIPAL OFFICE OF THE ISSUER AND WILL BE FURNISHED TO
THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
2.3 NOTICE OF TRANSFER. Prior to any proposed assignment,
transfer or sale of any Shares, the Holder of such Shares shall give written
notice to the Company of Holder's intention to effect such assignment, transfer
or sale, which notice shall set forth the date of such proposed assignment,
transfer or sale. Holder shall also furnish to the Company a written agreement
by the transferee that it is taking and holding the same subject to the terms
and conditions specified in this Agreement and, except in transfers pursuant to
a Public Offering or under Rule 144 or Regulation S under the Securities Act, a
written opinion of Holder's counsel, in form reasonably satisfactory to the
Company, to the effect that the proposed transfer may be effected without
registration under the Securities Act.
2.4 TERMINATION OF RESTRICTIONS. The restrictions set
forth in this Section 2 shall terminate and cease to be effective with respect
to any of the Shares (i) upon the sale of any such Shares which has been
registered under the Securities Act or is made pursuant to Rule 144 under the
Securities Act or (ii) upon receipt by the Company of an opinion of counsel,
which counsel and which opinion are reasonably satisfactory to the Company, to
the effect that compliance with such restrictions is not necessary in order to
comply with the Securities Act with respect to the sale of the Shares. The
restrictions with respect to a Holder set forth in Sections 7.5 and 8 hereof
shall terminate upon the end of the Standstill Period. Whenever such
restrictions shall so terminate, the Holder of such Shares shall be entitled to
receive from the Company,
without expense (other than transfer taxes, if any), certificates for such
Shares not bearing the respective legends set forth in Section 2.2.
3. REGISTRATION UNDER SECURITIES ACT.
3.1 SHELF REGISTRATION.
(a) Within 20 days after the date hereof and upon the
request of PGGM, the Company will use its commercially reasonable efforts to
cause to be filed a Shelf Registration Statement, which, in accordance with Rule
429 under the Securities Act, shall include a form of Shelf Prospectus for use
with respect to the Shelf Registrable Securities included in the Registration
Statement on Form S-3 (Registration No. 333-47149) filed by the Company with the
Commission on March 2, 1997, providing for the sale by the Holders of all of the
Shelf Registrable Securities in accordance with the terms hereof and will use
its commercially reasonable efforts to cause such Shelf Registration Statement
to be declared effective by the Commission as soon as practicable thereafter.
The Company agrees to use its commercially reasonable efforts to keep the Shelf
Registration Statement with respect to the Shelf Registrable Securities
continuously effective so long as Holder holds Shelf Registrable Securities.
Subject to Section 3.2(b) and Section 3.2(i), the Company further agrees to
amend the Shelf Registration Statement if and as required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or any
rules and regulations thereunder; PROVIDED, HOWEVER, that the Company shall not
be deemed to have used its commercially reasonable efforts to keep the Shelf
Registration Statement effective during the applicable period if it voluntarily
takes any action that would result in the Holders not being able to sell Shelf
Registrable Securities covered thereby during that period, unless such action is
required under applicable law or the Company has filed a post-effective
amendment to the Shelf Registration Statement and the Commission has not
declared it effective or except as otherwise permitted by the last six sentences
of Section 3.2(b). The Holders will provide information reasonably requested by
the Company in connection with the Shelf Registration Statement as promptly as
practicable after receipt of such request. The "Plan of Distribution" section of
the Shelf Registration Statement shall permit negotiated purchases, secondary
distributions, block trades, ordinary brokerage transactions or a combination of
such methods of sale, PROVIDED, HOWEVER, that the Company's obligations under
Sections 3.1 and 3.2 hereof shall not include participation in underwritten
offerings or other organized distributions of securities, which obligations are
limited to registrations under Section 3.3 and 3.6 hereof.
(b) EXPENSES. The Company shall pay all Shelf
Registration Expenses in connection with the registration pursuant to Section
3.1(a). The Holders shall pay all Selling Expenses and the fees and
disbursements of counsel representing the Holders, relating to the sale or
disposition of such Shelf Registrable Securities pursuant to the Shelf
Registration Statement.
3.2 SHELF REGISTRATION PROCEDURES. In connection with the
obligations of the Company with respect to the Shelf Registration Statement
contemplated by Section 3.1 hereof, the Company shall:
(a) prepare and file with the Commission, within the time
period set forth in Section 3.1(a) hereof, the Shelf Registration Statement,
which Shelf Registration Statement shall comply as to form in all material
respects with the requirements of the applicable form and include all financial
statements required by the Commission to be filed therewith;
(b) subject to the last six sentences of this Section
3.2(b) and Section 3.2(i) hereof, (i) prepare and file with the Commission such
amendments to such Shelf Registration Statement as may be necessary to keep such
Shelf Registration Statement effective throughout the applicable period; (ii)
cause the Shelf Prospectus to be amended or supplemented as required and to be
filed as required by Rule 424 or any similar rule that may be adopted under the
Securities Act; and (iii) respond as promptly as practicable to any comments
received from the Commission with respect to the Shelf Registration Statement or
any amendment thereto. Notwithstanding anything to the contrary contained
herein, the Company shall not be required to take any of the actions described
in clauses (i), (ii) or (iii) in this Section 3.2(b), Section 3.2(d) or Section
3.2(i) with respect to the Shelf Registrable Securities (x) to the extent that
(I) in the reasonable opinion of the Company (A) securities laws applicable to
such sale would require the Company to disclose material non-public information
("Non-Public Information") and (B) the disclosure of such Non-Public Information
would materially adversely affect the Company; (ii) such sale would occur during
the measurement period for determining the amount of Common Stock, or the amount
of any other consideration the amount of which will be based on the price of the
Common Stock, in connection with the acquisition of a business or assets by the
Company (a "Measurement Period"); OR (iii) the Company is contemplating an
underwritten Public Offering of its securities and in the reasonable opinion of
the underwriters such sale would interfere materially with such Public Offering
by the Company (a "Financing Period"); and the Company delivers written notice
to the Holders to the effect that the Holders may not make offers or sales under
the Shelf Registration Statement for a period not to exceed 45 days from the
date of such notice; PROVIDED, HOWEVER, that the Company may deliver only four
such notices under this Section 3.2(b) and Section 3.4(a) within any
twelve-month period, PROVIDED, FURTHER, that the Company may deliver only two
such notices under this Section 3.2(b) and Section 3.4(a) within the
twelve-month period immediately following the expiration of the six-month period
referred to in Section 3.3(f)(i) hereof and (y) unless and until the Company has
received a written notice (a "Shelf Registration Notice") from any Holder that
such Holder intends to make offers or sales under the Shelf Registration
Statement as specified in such Shelf Registration Notice; PROVIDED, HOWEVER,
that the Company shall have ten business days to prepare and file any such
amendment or supplement after receipt of the Shelf Registration Notice. The
Measurement Period and Financing Period are collectively referred to herein as
the "Restricted Period." In the event the sale by the Holders of Shelf
Registrable Securities is deferred because of the existence of Non-Public
Information, the Company will notify the Holders promptly upon such Non-Public
Information being included by the Company in a filing with the Commission, being
otherwise disclosed to the public (other than through the actions of any
Holder), or ceasing to be material to the Company, and upon such notice being
given by the Company, the Holders shall again be entitled to sell Shelf
Registrable Securities as provided herein. In the event the sale by the Holders
of Shelf Registrable Securities is deferred because it is proposed to be made
during a Restricted Period, the Company shall specify, in notifying the Holders
of the deferral of its sale, when the Restricted Period will end, at which time
the Holders shall again be entitled to sell Shelf Registrable Securities as
provided herein. If the Restricted Period is thereafter changed, the Company
will promptly notify the Holders of such change and upon the end of the
Restricted Period as so changed, the Holders will again be entitled to sell
Shelf Registrable Securities as provided herein. If an agreement to which such
Restricted Period relates is terminated prior to the end of the Restricted
Period, the deferral period hereunder shall end immediately and the Company
shall promptly notify the Holders of the end of the deferral period;
(c) promptly furnish the Holders after a Holder has
delivered a Shelf Registration Notice to the Company, without charge, as many
copies of each Shelf Prospectus and any amendment or supplement thereto in order
to facilitate the public sale or other disposition of the Shelf Registrable
Securities; the Company consents to the use of the Shelf Prospectus and any
amendment or supplement thereto by the Holders of Shelf Registrable Securities
in connection with the offering and sale of the Shelf Registrable Securities
covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to register
or qualify the Shelf Registrable Securities by the time the Shelf Registration
Statement is declared effective by the Commission under all applicable state
securities or blue sky laws of such jurisdictions in the United States and its
territories and possessions as the Holders shall reasonably request in writing,
keep each such registration or qualification effective during the period such
Shelf Registration Statement is required to be kept effective or during the
period offers or sales are being made by the Holders after a Holder has
delivered a Shelf Registration Notice to the Company, whichever is shorter;
PROVIDED, HOWEVER, that in connection therewith, the Company shall not be
required to (i) qualify as a foreign corporation to do business or to register
as a broker or dealer in any such jurisdiction where it would not otherwise be
required to qualify or register but for this Section 3.2(d), (ii) subject itself
to taxation in any such jurisdiction, or (iii) file a general consent to service
of process in any such jurisdiction;
(e) notify the Holders promptly and, if requested by a
Holder, confirm in writing, (i) when the Shelf Registration Statement and any
post-effective amendments thereto have become effective, (ii) when any amendment
or supplement to the Shelf Prospectus has been filed with the Commission, (iii)
of the issuance by the Commission or any state securities authority of any stop
order suspending the effectiveness of the Shelf Registration Statement or any
part thereof or the initiation of any proceedings for
that purpose, (iv) if the Company receives any notification with respect to the
suspension of the qualification of the Shelf Registrable Securities for offer or
sale in any jurisdiction or the initiation of any proceeding for such purpose,
and (v) of the happening of any event during the period the Shelf Registration
Statement is effective as a result of which (A) such Shelf Registration
Statement contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (B) the Shelf Prospectus as then amended or
supplemented contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(f) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the Shelf Registration
Statement or any part thereof as promptly as possible;
(g) promptly furnish to the Holders after a Holder has
delivered a Shelf Registration Notice to the Company, without charge, at least
one conformed copy of the Shelf Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Shelf Registrable
Securities to be sold and not bearing any Securities Act legend; and enable
certificates for such Shelf Registrable Securities to be issued for such numbers
of shares as the Holders may reasonably request at least two business days prior
to any sale of Shelf Registrable Securities;
(i) subject to the last six sentences of Section 3.2(b)
hereof, upon the occurrence of any event contemplated by clause (v) of Section
3.2(e) hereof, use its reasonable best efforts promptly to prepare and file an
amendment or a supplement to the Shelf Prospectus or any document incorporated
therein by reference or prepare, file and obtain effectiveness of a
post-effective amendment to the Shelf Registration Statement, or file any other
required document, in any such case to the extent necessary so that, as
thereafter delivered to the purchasers of the Shelf Registrable Securities, such
Shelf Prospectus as then amended or supplemented will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading;
(j) make available for inspection by the Holders after a
Holder has provided a Shelf Registration Notice to the Company and any counsel,
accountants or other representatives retained by the Holders all financial and
other records, material corporate documents and properties of the Company and
cause the officers, directors and employees of the Company to supply all such
material records, documents or information reasonably requested by the Holders,
counsel, accountants or representatives in connection with the Shelf
Registration Statement; PROVIDED, HOWEVER, that such records, documents or
information which the Company determines in good
faith to be confidential and notifies the Holders, counsel, accountants or
representatives in writing that such records, documents or information are
confidential shall not be disclosed by the Holders, counsel, accountants or
representatives unless (i) such disclosure is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, or (ii) such records,
documents or information become generally available to the public other than
through a breach of this Agreement;
(k) a reasonable time prior to the filing of the Shelf
Registration Statement or any amendment thereto, or any Shelf Prospectus or any
amendment or supplement thereto, provide copies of such document (not including
any documents incorporated by reference therein unless requested) to the
Holders; and
(l) use its reasonable best efforts to cause all Shelf
Registrable Securities to be listed on the New York Stock Exchange from and
after the time the Shelf Registration Statement is declared effective.
The Company may require the Holders to furnish to the Company
in writing such information regarding the proposed distribution by the Holders
as the Company may from time to time reasonably request in writing.
In connection with and as a condition to the Company's
obligations with respect to the Shelf Registration Statement pursuant to Section
3.1 hereof and this Section 3.2, the Holders covenant and agree that (i) they
will not offer or sell any Shelf Registrable Securities under the Shelf
Registration Statement until a Holder has provided a Shelf Registration Notice
pursuant to Section 3.2(b) and have received copies of the Shelf Prospectus as
then amended or supplemented as contemplated by Section 3.2(c) and notice from
the Company that the Shelf Registration Statement and any post-effective
amendments thereto have become effective as contemplated by Section 3.2(e); (ii)
upon receipt of any notice from the Company contemplated by Section 3.2(b) or
Section 3.2(e) (in respect of the occurrence of an event contemplated therein),
the Holders shall not offer or sell any Shelf Registrable Securities pursuant to
the Shelf Registration Statement until the Holders receive copies of the
supplemented or amended Shelf Prospectus contemplated by Section 3.2(i) hereof
and receive notice that any post-effective amendment has become effective, and,
if so directed by the Company, the Holders will deliver to the Company (at the
expense of the Company) all copies in its possession, other than permanent file
copies then in the Holders' possession, of the Shelf Prospectus as amended or
supplemented at the time of receipt of such notice; (iii) upon the expiration of
60 days after the first date on which offers or sales can be made pursuant to
clause (i) above, the Holders will not offer or sell any Shelf Registrable
Securities under the Shelf Registration Statement until they have again complied
with the provisions of clause (i) above; (iv) each Holder and any of such
Holder's partners, officers, directors or Affiliates, if any, will comply with
the provisions of Regulation M under the Exchange Act as applicable to them in
connection with sales of Shelf Registrable Securities pursuant to the Shelf
Registration Statement; (v) each Holder and any of such Holder's partners,
officers, directors or Affiliates, if any, will comply with the prospectus
delivery requirements of the Securities Act as applicable to
them in connection with sales of Shelf Registrable Securities pursuant to the
Shelf Registration Statement; and (vi) each Holder and any of such Holder's
partners, officers, directors or Affiliates, if any, will enter into such
written agreements as the Company shall reasonably request to ensure compliance
with clauses (iv) and (v) above.
3.3 DEMAND OFFERINGS.
(a) REQUESTS FOR DEMAND OFFERING. PGGM, DIHC or a Holder
or Holders owning a majority of the Demand Offering Securities (the "Demand
Initiating Holder") may request the offering under the Securities Act of all or
any portion of the Demand Offering Securities held by such Holders for sale in
the manner specified in such request, including an underwritten offering. Upon
receipt of such request, the Company will promptly, but in any event within 20
days, give written notice of such requested registration to all Holders of
Demand Offering Securities, and thereupon, in accordance with Section 3.4
hereof, the Company will use its reasonable best efforts to effect the
registration and sale of:
(i) the Demand Offering Securities which the Company has
been so requested to register by such Demand Initiating Holder;
(ii) all other Demand Offering Securities which the
Company has been requested to register by the other Holders thereof by
written request delivered to the Company within 15 days after the
giving of such written notice by the Company, and
(iii) all shares of Common Stock which the Company may
elect to register for its own account or for the account of others in
connection with the offering of Demand Offering Securities pursuant to
this Section 3.3.
Each initial request for a offering pursuant to this Section
3.3 shall specify the number of Demand Offering Securities requested to be sold
by the Demand Initiating Holder, the method of disposition to be employed and
the Current Market Price of the Common Stock as of the date of such request. Any
request for an offering pursuant to this Section 3.3(a) shall be referred to
herein as a "Demand Offering Request" and all registrations requested pursuant
to this Section 3.3 are referred to herein as "Demand Offerings."
(b) NUMBER OF DEMAND OFFERINGS. The Company shall not be
required under this Section 3.3 to effect more than eight Demand Offerings in
the aggregate. Notwithstanding anything to the contrary contained herein, if
such method of disposition is a firm commitment underwritten public offering, a
registration shall count as a Demand Offering only when all such Demand Offering
Securities shall have been sold pursuant thereto; PROVIDED, HOWEVER, that if a
Demand Prospectus filed by the Company pursuant to a Demand Offering Request
shall be abandoned or withdrawn at the behest of the Demand Initiating Holder,
then, unless the Holders shall, promptly upon receipt of
a request by the Company therefor supported by an invoice setting forth the
expenses in reasonable detail, reimburse the Company for the Demand Offering
Expenses in respect of such prospectus attributable to the Holders, the Company
shall be deemed to have effected a Demand Offering.
(c) MINIMUM OFFERING AMOUNT. The Company shall not be
required to comply with this Section 3.3 unless the aggregate Current Market
Price of all Demand Offering Securities covered by the Demand Offering Request
and the Demand Offering Securities described in Section 3.3(a)(ii) shall be $75
million or more (unless and to the extent the Demand Initiating Holder shall
hold less than $75 million of Demand Offering Securities, in which case such
minimum offering amount shall be equal to the amount of Demand Offering
Securities so held).
(d) SELECTION OF UNDERWRITERS. If the method of
disposition specified by the Demand Initiating Holder shall be an underwritten
public offering, the Company may designate the managing underwriter of such
offering, subject to the approval of the Demand Initiating Holder which approval
shall not be unreasonably withheld.
(e) PRIORITY ON DEMAND OFFERINGS. The Company shall be
entitled to include in any offering referred to in this Section 3.3, for sale in
accordance with the method of disposition specified by the Demand Initiating
Holder shares of Common Stock to be sold by the Company for its own account or
by other shareholders of the Company for their account. Nonetheless, whether or
not the Company desires to include any such additional shares in a Demand
Offering, if the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such offering
exceeds the maximum number which can be included in such offering without
adversely affecting the marketability of the offering (the "Maximum Number"),
then the Company will limit the number of shares included in such offering to
the Maximum Number, and the shares offered shall be selected in the following
order of priority: (i) first, Demand Offering Securities covered by the Demand
Offering Request and the Demand Offering Securities described in Section
3.3(a)(ii), subject to the proviso set forth in clause (iii) below, (ii) second,
securities the Company proposes to sell and (iii) third, securities requested to
be included in such registration pursuant to (A) the Stockholders' Agreement,
dated as of November 22, 1996, by and among the Company and the New York State
Teachers' Retirement System, (B) the Stockholders' Agreement, dated as of
November 7, 1996, by and between the Company and Hexalon Real Estate, Inc., and
(C) the Registration Rights and Lockup Agreement, dated as of ______, 1998, by
and among the Company and the parties named therein (the "▇▇▇▇▇▇ Registration
Rights Agreement") pro rata among the holders thereof on the basis of the number
of shares requested to be included in such registration; PROVIDED that the
securities requested to be included pursuant to clauses (A) and (B) shall not be
reduced to less than one-third of the total number of shares in such offering,
and (iv) fourth, other securities requested to be included in such registration.
(f) EXCEPTION. Anything in this Section 3.3 to the
contrary notwithstanding, the Company shall not be required to file a Demand
Prospectus in
connection with a Demand Offering (i) within twelve months after the closing
date of a Demand Offering or within six months after the effective date of any
registration statement (other than pursuant to Section 3.1 or a registration
statement on Form S-8 with respect to an employee benefit plan or a registration
statement on Form S-4 relating to securities to be issued in a merger or in
exchange for securities or assets of another Person) of the Company or (ii) if
counsel for the Company, reasonably acceptable to the Demand Initiating Holder
shall deliver an opinion to the Holders to the effect that, pursuant to Rule 144
under the Securities Act or otherwise, the Holders can publicly offer and sell
the Demand Offering Securities as to which sale has been requested without
registration under the Securities Act.
3.4 DEMAND OFFERING PROCEDURES. If and whenever the
Company is required by the provisions of Section 3.3 hereof to use its
reasonable best efforts to effect the sale of any of the Demand Offering
Securities under the Securities Act, the Company shall use its reasonable best
efforts to effect the registration and sale of the Demand Offering Securities in
accordance with the intended method of disposition thereof and will, as
expeditiously as possible:
(a) within 45 days after receiving a request for a Demand
Offering, prepare and file with the Commission a Demand Prospectus as a
supplement to the Shelf Registration Statement with respect to such Demand
Offering Securities. Notwithstanding anything to the contrary contained herein,
the filing of such Demand Prospectus may be delayed for a period not to exceed
45 days if (i) any of the events specified in clause (x)(iii) of Section 3.2(b)
hereof shall have occurred, or (ii) the Company is engaged in any program for
the repurchase of Common Stock or other securities of the Company and the
Company provides written notice to the Demand Initiating Holder; PROVIDED,
HOWEVER, that the Company may deliver only four notices under this Section
3.4(a) and 3.2(b) hereof within any twelve-month period; PROVIDED, FURTHER, that
the Company may deliver only two such notices under this Section 3.4(a) and
Section 3.2(b) within the twelve-month period immediately following the
expiration of the six-month period referred to in Section 3.3(f)(i) hereof.
(b) prior to the filing described in paragraph (a) above,
furnish to the Holders copies of the Demand Prospectus and any amendments or
supplements thereto, which documents shall be subject to the approval of the
Holders only with respect to any statement in the Demand Prospectus which
relates to the Holders;
(c) notify the Holders promptly and, if requested by the
Holders, confirm in writing, (i) when the Demand Prospectus has been filed with
the Commission, (ii) when any amendment or supplement to the Demand Prospectus
has been filed with the Commission, (iii) of the issuance by the Commission or
any state securities authority of any stop order suspending the effectiveness of
the Shelf Registration Statement or any part thereof or the initiation of any
proceedings for that purpose, (iv) if the Company receives any notification with
respect to the suspension of the qualification of the Demand Offering Securities
for offer or sale in any jurisdiction or the initiation of any proceeding for
such purpose, and (v) of the happening of any event during the
period of the offering pursuant to the Demand Prospectus as a result of which
(A) such Shelf Registration Statement contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or (B) the Demand
Prospectus as then amended or supplemented contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(d) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Shelf Registration Statement or
any part thereof as promptly as possible;
(e) furnish to the Holders after delivery of a Demand
Offering Request to the Company, without charge, at least one conformed copy of
the Shelf Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested);
(f) prepare and file with the Commission such amendments
and supplements to such Shelf Registration Statement and the Demand Prospectus
used in connection therewith as may be necessary and comply with the provisions
of the Securities Act with respect to the disposition of all Demand Offering
Securities covered by such Demand Prospectus in accordance with the Holders'
intended method of disposition set forth in such Demand Prospectus for such
period;
(g) furnish to the Holders and to each underwriter such
number of copies of the Shelf Registration Statement and the Demand Prospectus
included therein (including each preliminary prospectus) and such other
documents, as such persons may reasonably request in order to facilitate the
public sale or other disposition of the Demand Offering Securities covered by
such Demand Prospectus;
(h) use its reasonable best efforts to register or
qualify the Demand Offering Securities covered by such Demand Prospectus under
the securities or blue sky laws of such jurisdictions as the Holders or, in the
case of an underwritten public offering, the managing underwriter, shall
reasonably request;
(i) provide a transfer agent and registrar, which may be
a single entity, for all Demand Offering Securities;
(j) use its reasonable best efforts to cause all Demand
Offering Securities to be listed on the New York Stock Exchange;
(k) furnish on the date that Demand Offering Securities
are delivered to the underwriters for sale pursuant to such registration: (i) an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters, stating that the Shelf
Registration Statement has become effective under the Securities Act and that
(A) to the best knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
Securities Act, (B) the Shelf Registration Statement, the related Demand
Prospectus, and each amendment or supplement thereto, comply as to form in all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and that such counsel does
not believe that any such Shelf Registration Statement, Demand Prospectus,
amendment or supplement contains a misstatement of a material fact or an
omission to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
were made, not misleading (except that such counsel need express no opinion as
to financial statements or financial or statistical data contained therein) and
(C) to such other effects as may reasonably be requested by counsel for the
underwriters or by the Holders or their counsel, and (ii) a "cold comfort"
letter dated such date from the independent public accountants retained by the
Company, addressed to the underwriters, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the Shelf
Registration Statement or the Demand Prospectus, or any amendment or supplement
thereto, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to the registration in respect of which such letter is being given
as such underwriters may reasonably request; and
(l) make available for inspection by the Holders after
the Demand Initiating Holder has provided a Demand Offering Request to the
Company and any counsel, accountants or other representatives retained by the
Holders all financial and other material records, pertinent corporate documents
and properties of the Company and cause the officers, directors and employees of
the Company to supply all such material records, documents or information
reasonably requested by the Holders, counsel, accountants or representatives in
connection with the Demand Prospectus; PROVIDED, HOWEVER, that such records,
documents or information which the Company determines in good faith to be
confidential and notifies the Holders, counsel, accountants or representatives
in writing that such records, documents or information are confidential shall
not be disclosed by Holders, counsel, accountants or representatives unless (i)
such disclosure is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (ii) such records, documents or information become
generally available to the public other than through a breach of this Agreement.
For purposes of paragraphs (a) and (f) of this Section 3.4, the period of
distribution of Demand Offering Securities in a firm commitment underwritten
public offering shall be deemed to be that period during which the underwriters
in such offering require in an underwriting agreement in the form customarily
used by such underwriters for comparable transactions that the Company keep a
registration statement effective to permit each underwriter to complete the
distribution of all securities purchased by it, and
the period of distribution of Demand Offering Securities in any other
registration shall be deemed to extend until the earlier of the sale of all
Demand Offering Securities covered thereby or nine months after the effective
date thereof.
In connection with each registration hereunder, each Holder
will furnish to the Company in writing such information with respect to
itself and the proposed distribution by itself as shall be reasonably
necessary in order to assure compliance with federal and applicable state
securities laws. Reasonable compliance with the obligation to furnish such
information shall be a condition to the rights afforded such Holder
hereunder. In addition, each Holder and any of its partners, officers,
directors or Affiliates, if any, (i) will comply with the provisions of
Regulation M as applicable to them in connection with sales of Demand
Offering Securities pursuant to the Demand Prospectus; (ii)will comply with
the prospectus delivery requirements of the Securities Act as applicable to
them in connection with sales of Demand Offering Securities pursuant to the
Demand Prospectus; and (iii) will enter into such written agreements as the
Company shall reasonably request to ensure compliance therewith.
In connection with each registration pursuant to Section 3.3
hereof covering an underwritten public offering, the Company agrees to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature; PROVIDED that such
agreement shall not contain any such provision applicable to the Company which
is inconsistent with the provisions hereof; PROVIDED, FURTHER that the time and
place of the closing under said agreement shall be as mutually agreed upon
between the Company and such managing underwriter.
3.5 DEMAND OFFERING EXPENSES. In connection with any
Demand Offering, the Company shall pay all Demand Offering Expenses and the
Holders shall pay all Selling Expenses applicable to the shares sold by the
Holders.
3.6 PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. In the event that a Holder is not
permitted to effect sales under the Shelf Registration Statement under Section
3.2(b)(x)(iii) hereof or the Holders are not permitted to effect Demand Offering
due to Section 3.4(a)(i), Holders shall become entitled to the rights of this
Section 3.6. The Company will promptly (but in any event within 30 days) give
written notice to the Holders of its intention to effect such registration and a
description of any underwriting agreement to be entered into with respect
thereto and will include in such registration all Shelf Registrable Securities
or Demand Offering Securities with respect to which the Company has received
written requests for inclusion within 15 days after the receipt of the Company's
notice (a "Piggyback Registration Request"); PROVIDED, HOWEVER, that the Company
shall not be required to include Shelf Registrable Securities or Demand Offering
Securities in the securities to be registered pursuant to a registration
statement on any form which limits the amount of securities which may be
registered by the issuer
and/or selling security holders if, and to the extent that, such inclusion would
make the use of such form unavailable. In the event that any Piggyback
Registration shall be, in whole or in part, an underwritten public offering of
Common Stock, the Holders shall agree that such Demand Offering Securities or
Shelf Registrable Securities are to be included in the underwriting on the same
terms and conditions as the shares of Common Stock otherwise being sold through
underwriters under such registration.
(b) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of shares requested to be included in such registration
exceeds the Maximum Number, the Company will limit the number of shares included
in such registration to the Maximum Number, and the shares registered shall be
selected in the following order of priority: (i) first, securities the Company
proposes to sell, subject to the proviso set forth in clause (ii) below, (ii)
second, (A) Shelf Registrable Securities or Demand Offering Securities covered
by Piggyback Registration Requests, (B) securities requested to be included in
such registration pursuant to the ▇▇▇▇▇▇ Registration Rights Agreement, and (C)
securities requested to be included in such registration pursuant to (x) the
Stockholders' Agreement, dated as of November 22, 1996, by and among the Company
and the New York State Teachers' Retirement System and (y) the Stockholders'
Agreement, dated as of November 7, 1996, by and between the Company and Hexalon
Real Estate, Inc., pro rata among the holders thereof on the basis of the number
of shares requested to be included in such registration; PROVIDED that the
securities requested to be included pursuant to clauses (x) and (y) shall not be
reduced to less than one-third of the total number of shares in such offering
and (iii) third, other securities requested to be included in such registration.
(c) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the Maximum Number, the Company will include in
such registration the shares requested to be included therein by the holders
requesting such registration and the Shelf Registrable Securities and Demand
Offering Securities covered by Piggyback Registration Requests and any other
securities requested to be included in such registration, pro rata among the
holders thereof on the basis of the number of shares requested to be included in
such registration; PROVIDED, HOWEVER, that if the holders requesting
registration are doing so pursuant to demand registration rights of such
holders, such holders' shares shall take priority over any Shelf Registrable
Securities and Demand Offering Securities and any other securities requested to
be included, which shall be included on a pro rata basis, subject to the proviso
set forth in Section 3.6(b)(ii)(C).
3.7 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. To the extent
permitted by law, the Company shall indemnify and hold harmless the seller of
any Shares covered by any registration statement filed pursuant to Section 3,
its directors, trustees and officers, each other person who participates as an
underwriter in the offering or sale of such securities and each other person,
if any, who controls such seller or any such underwriter within the meaning of
the Securities Act against any losses, claims, damages, liabilities or
expenses, joint or several, to which such seller or any such director, trustee
or officer or participating or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or related actions or proceedings) arise out of or are
based upon (x) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in such registration statement, or
any amendment or supplement to such registration statement, or any document
incorporated by reference in such registration statement, or (y) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the Company will
reimburse such seller, and each such director, trustee, officer, participating
person and controlling person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding, PROVIDED that the Company shall not be
liable in any such case (1) to the extent that any such loss, claim, damage,
liability or expense (or action or proceeding in respect thereof) arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller or any such
director, trustee, officer, participating person or controlling person
specifically stating that it is for use in the preparation of such registration
statement or (2) to the extent any amount paid in settlement of any such loss,
claim, damage, liability or action of such settlement is effected without the
written consent of the Company (which consent shall not be unreasonably
withheld). Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such seller or any such director,
trustee, officer, participating person or controlling person and shall survive
the transfer of such securities by such seller. The Company shall agree to make
provision for contribution relating to such indemnity as shall be reasonably
requested by any seller of Shares or the underwriters.
(b) INDEMNIFICATION BY THE SELLERS. The Company may
require, as a condition to including any Shares in any registration statement
filed pursuant to Section 3, that the Company shall have received an undertaking
satisfactory to it from each prospective seller of such securities, severally
and not jointly, to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 3.6(a)) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement
and each other person, if any, who controls the Company within the meaning of
the Securities Act, with respect to any
untrue statement in or omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus included in such
registration statement, or any amendment or supplement to such registration
statement, of a material fact if such statement or omission was made in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by such seller specifically stating that it is for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company or any such director, officer or controlling person
and shall survive the transfer of such securities by such seller.
(c) INDEMNIFICATION PROCEDURE. Promptly after receipt by
any party entitled to indemnification pursuant to Section 3.7(a) or 3.7(b) of
this Agreement (an "Indemnified Party") of notice by a third party of any
complaint or the commencement of any action or proceeding with respect to which
indemnification is being sought hereunder, such Indemnified Party shall notify
the party obligated to provide such indemnification (the "Indemnifying Party")
of such complaint or of the commencement of such action or proceeding;
PROVIDED, HOWEVER, that the failure to so notify the Indemnifying Party shall
not relieve the Indemnifying Party from liability for such claim arising
otherwise than under this Agreement, and such failure to so notify the
Indemnifying Party shall relieve the Indemnifying Party from liability which the
Indemnifying Party may have hereunder with respect to such claim if, but only
if, and only to the extent that, such failure to notify the Indemnifying Party
results in the forfeiture by the Indemnifying Party of material rights and
defenses otherwise available to the Indemnifying Party with respect to such
claim. The Indemnifying Party shall have the right, upon written notice to the
Indemnified Party, to assume the defense of such action or proceeding, including
the employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of the fees and disbursements of such counsel. In the event,
however, that the Indemnifying Party declines or fails to assume the defense of
the action or proceeding or to employ counsel reasonably satisfactory to the
Indemnified Party, in either case in a timely manner, then such Indemnified
Party may employ counsel to represent or defend it in any such action or
proceeding and the Indemnifying Party shall pay the reasonable fees and
disbursements of such counsel as incurred; PROVIDED, HOWEVER, that the
Indemnifying Party shall not be required to pay the fees and disbursements of
more than one counsel for all Indemnified Parties in any jurisdiction in any
single action or proceeding. In any action or proceeding with respect to which
indemnification is being sought hereunder, the Indemnified Party or the
Indemnifying Party, whichever is not assuming the defense of such action, shall
have the right to participate in such litigation and to retain its own counsel
at such party's own expense. The Indemnifying Party or the Indemnified Party, as
the case may be, shall at all times use reasonable best efforts to keep the
Indemnifying Party or the Indemnified Party, as the case may be, reasonably
apprised of the status of the defense of any action, the defense of which it is
maintaining and to cooperate in good faith with the Indemnifying Party or the
Indemnified Party, as the case may be, with respect to the defense of any such
action.
No Indemnified Party may settle or compromise any claim or
consent to the entry of any judgment with respect to which indemnification is
being sought hereunder without the prior written consent of the Indemnifying
Party, unless such settlement, compromise or consent includes an unconditional
release of the Indemnifying Party from all liability arising out of such claim.
An Indemnifying Party may not, without the prior written consent of the
Indemnified Party, settle or compromise any claim or consent to the entry of any
judgment with respect to which indemnification is being sought hereunder unless
such settlement, compromise or consent includes an unconditional release of the
Indemnified Party from all liability arising out of such claim and does not
contain any equitable order, judgment or term which in any manner affects,
restrains or interferes with the business of the Indemnified Party or any of
the Indemnified Party's affiliates.
In the event an Indemnified Party shall claim a right to
payment pursuant to this Agreement, such Indemnified Party shall send written
notice of such claim to the appropriate Indemnifying Party. Such notice shall
specify the basis for such claim. As promptly as possible after the Indemnified
Party has given such notice, such Indemnified Party and the appropriate
Indemnifying Party shall establish the merits and amount of such claim (by
mutual agreement or otherwise) and, within five business days of the final
determination of the merits and amount of such claim, the Indemnifying Party
shall deliver to the Indemnified Party immediately available funds in an amount
equal to such claim as determined hereunder.
If for any reason the indemnification provided for in this
Section 3.7 is unavailable to an Indemnified Party or is insufficient to hold it
harmless as contemplated by this Section 3.7, then the Indemnifying Party shall
contribute to the amount paid or payable by the Indemnified Party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the Indemnified Party and the Indemnifying Party,
as well as any other relevant equitable considerations; PROVIDED that in no
event shall the liability of any Holder for such contribution and
indemnification exceed, in the aggregate, the dollar amount of the proceeds
received by such Holder upon the sale of Shares giving rise to such
indemnification and contribution obligations.
The obligations of the parties under this Section 3.7 shall be
in addition to any liability which any party may otherwise have to any other
party.
3.8 LIMITATIONS ON REGISTRATION RIGHTS OF OTHERS. The
Company represents and warrants that, except pursuant to this Agreement and
pursuant to rights granted pursuant to the agreements set forth on Exhibit A
hereto, it has not granted to any Person the right to request or require the
Company to register any securities issued by the Company.
4. RULE 144. The Company shall comply with the requirements of
Rule 144 under the Securities Act, as such Rule may be amended from time to
time (or any similar rule or regulation hereafter adopted by the Commission),
regarding the availability of current public information to the extent required
to enable any Holder of
Shares to sell Shares without registration under the Securities Act pursuant to
Rule 144 (or any similar rule or regulation). Upon the request of any Holder of
Shares, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
5. AMENDMENTS AND WAIVERS. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holder or
Holders of a majority of the Shares (and, in the case of any amendment, action
or omission to act which adversely affects any specific Holder of Shares or a
specific group of Holders of Shares, the written consent of each such Holder or
Holders of a majority of the Shares held by such group). Each Holder of any
Shares at the time shall be bound by any consent authorized by this Section 5.
6. NOMINEES FOR BENEFICIAL OWNERS. In the event that any Shares
are held by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its election, be treated as the Holder of such Shares for
purposes of any request or other action by any Holder or Holders of Shares
pursuant to this Agreement or any determination of any number or percentage of
shares of Shares held by any Holder or Holders of Shares contemplated by this
Agreement. If the beneficial owner of any Shares so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Shares.
7. COVENANTS OF THE PARTIES.
7.1 BOARD OF DIRECTORS.
(a) So long as PGGM and DIHC and their respective
Affiliates own in the aggregate 5% or more of the issued and outstanding shares
of Common Stock, the Company shall take all action necessary to nominate for
election to the board of directors of the Company (the "Board") at any annual or
special meeting of stockholders at which directors are being elected (or in
connection with a written consent in lieu of a meeting pursuant to which
directors are proposed to be elected) two individuals designated by PGGM ("PGGM
Directors").
(b) From the date hereof until the earlier to occur of
(i) the date as of which PGGM and DIHC and their respective Affiliates own in
the aggregate less than 25% of the issued and outstanding shares of Common Stock
or (ii) October 31, 2002:
(i) the Company shall take all action necessary to ensure
that one PGGM Director is appointed to the board affairs committee of
the Board (the "Committee").
(ii) All nominees for election as directors of the Company
by the Board (other than Incumbent Directors and PGGM Directors
nominated pursuant to
Section 7.1(a) who are employees, officers or directors of PGGM or
DIHC) shall be persons not affiliated with PGGM or DIHC or any of their
respective Affiliates and shall be made with the unanimous approval of
the Committee;
(iii) PGGM and DIHC shall vote (or provide written consent
with respect to) all shares of Common Stock over which it exercises
voting authority in favor of the persons nominated as PGGM Directors
pursuant to Section 7.1(a) and all nominees nominated in accordance
with Section 7.1(b)(ii) and all Incumbent Directors nominated for
election as directors of the Company by the Board;
(iv) In the event of any vacancy on the Board, whether
caused by a director's resignation, removal, death or otherwise, the
Company shall take all action necessary to ensure that the successor
to the director whose absence from the Board caused such vacancy shall
be a PGGM Director if the director who caused such vacancy was a PGGM
Director; and
(v) The Company shall not increase the number of
directors constituting the full Board without the unanimous approval
of the Committee.
(c) So long as PGGM and DIHC and their respective
Affiliates own in the aggregate 2.5% or more of the issued and outstanding
shares of Common Stock, the Company shall not without the prior written consent
of PGGM modify the policy of the Company with respect to its interest in ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, adopted at a meeting of the Board on August
13, 1997.
(d) From the date of adoption of the Amended and Restated
Bylaws of the Company in the form attached hereto as Annex A (the "Amended
Bylaws") until the third anniversary of such date:
(i) PGGM and DIHC shall vote (or provide written consent
with respect to) all shares of Common Stock over which it exercises
voting authority in favor of the persons nominated as ▇▇▇▇▇▇ Directors
(as defined in the Amended Bylaws) pursuant to Section 3.03(a) of the
Amended Bylaws and approved by the Committee as set forth in Section
3.02 of the Amended Bylaws; and
(ii) PGGM and DIHC shall use commercially reasonable
efforts to cause the PGGM Directors, in considering the nominees
proposed by ▇▇▇▇▇▇ III (or the ▇▇▇▇▇▇ III Designee) (as defined in the
Amended Bylaws) for inclusion in the Board's list of nominees for
election as director to approve in all cases ▇▇▇▇▇▇ III, and in
considering other persons nominated as ▇▇▇▇▇▇ Directors, not to
unreasonably withhold their approval.
7.2 LEVERAGE RATIO. So long as PGGM and DIHC and their
respective Affiliates own in the aggregate 2.5% or more of the issued and
outstanding shares of Common Stock, the Company shall at all times maintain a
Leverage Ratio not in excess of 0.45 to 1; PROVIDED, HOWEVER, that
notwithstanding the foregoing, (i) the Company
may at any time incur Indebtedness in an amount which does not exceed the
principal amount of outstanding Indebtedness of the Company extended,
refinanced, renewed or replaced with the proceeds thereof, plus any costs
associated with the extension refinancing, renewal or replacement, even if such
incurrence causes the Leverage Ratio to exceed 0.45 to 1, (ii) the Company may
incur Indebtedness if, as of the date on which the Company enters into a binding
commitment with respect to such Indebtedness, the Leverage Ratio including such
Indebtedness did not exceed 0.45 to 1 and (iii) with respect to lines of credit,
the Company may incur Indebtedness under such line, if, as of the date the
Company enters into the line of credit, the Leverage Ratio including the entire
amount of Indebtedness available under such line did not exceed 0.45 to 1.
7.3 DOMESTIC REIT STATUS. So long as PGGM and DIHC and
their respective Affiliates own in the aggregate 2.5% or more of the issued and
outstanding shares of Common Stock, the Company shall not issue any Equity
Securities in connection with any Public Offering or other sale to any Non-U.S.
Person (as defined in Section 9.02 of the Charter Amendment), other than in
connection with stock splits or stock dividends or under the Company's dividend
reinvestment plan or stock option or management incentive compensation plans;
PROVIDED, HOWEVER, that the Company, in connection with any Public Offering of
Equity Securities, may issue and sell up to 15% of the securities issued in such
offering to Non-U.S. Persons.
7.4 HOLDBACK AGREEMENTS. Each Holder agrees, if so
requested prior to December 31, 1998, by the managing underwriter in any Public
Offering by the Company, not to effect any sale or distribution of Common Stock
(other than as part of such Public Offering) within such periods prior to and
after the effective date of such registration statement as the managing
underwriter may request and as may be required of executive officers and
directors of the Company after the effective date of such registration
statement; PROVIDED that no Holder shall be required to enter into more than one
such agreement. After December 31, 1998, each Holder will consider entering into
such agreements if so requested.
7.5 RESTRICTIONS ON TRANSFER. During the Standstill
Period, any Holder and its Affiliates owning 25% or more of the issued and
outstanding shares of Common Stock, shall not assign, transfer or sell any
Shares to any Person or such Person's Affiliates (other than a Permitted
Transferee that agrees in writing to be bound by the provisions of this
Agreement) in any single transaction or series of related transactions if, after
such transaction or transactions, such Person and such Person's Affiliates would
own more than 10% of the then issued and outstanding shares of Common Stock
other than transfers of shares from DIHC to PGGM.
7.6 OWNERSHIP LIMIT. The Company has taken and will
continue to take all action necessary to ensure that issuance of the Shares to
DIHC, DIHC Market Square, Inc. and PGGM pursuant to the Purchase Agreement and
the Loan Agreement shall not be deemed a violation of Article 8 of the Company's
articles of incorporation. Whenever PGGM or DIHC (or DIHC Market Square, Inc.)
proposes to transfer any Shares to any Person, in accordance with the provisions
of Section 8.03 of the articles
of incorporation of the Company, the Board shall determine whether the proposed
transfer would jeopardize the Company's status as a real estate investment trust
(a "REIT") under Section 856 of the Internal Revenue Code of 1986, as amended.
If the Board determines that it would not so jeopardize the Company's REIT
status, or if it receives an opinion of counsel, which counsel and opinion are
reasonably satisfactory to the Board, to the effect that such proposed transfer
will not jeopardize the Company's status as a REIT, the Board shall determine
that such transferee will not be treated as a "Person" within the meaning of
Section 8.03(b) of the Company's articles of incorporation and therefore the
ownership of Shares by such transferee will be exempt from the restrictions
imposed by Article 8 of the Company's articles of incorporation. If the Board
determines that the proposed transfer would jeopardize the Company's REIT
status, the Company shall provide a written explanation to DIHC and PGGM of the
basis for its determination and shall provide reasonable access to information
regarding the Company's shareholders to DIHC and PGGM.
7.7 TRANSFERS TO PGGM. The Company shall take all action
necessary to ensure that any transfer of Shares from DIHC or DIHC Market Square,
Inc. to PGGM shall not be deemed a violation of Article 8 or Section 9.01 of the
Company's articles of incorporation.
7.8 SHARE REPURCHASES. So long as DIHC and PGGM and their
respective Affiliates own in the aggregate 25% or more of the issued and
outstanding shares of Common Stock, in the event the Company proposes to
repurchase any shares of Common Stock from any holder thereof owning together
with its Affiliates 5% or more of the issued and outstanding shares of Common
Stock, DIHC and PGGM shall have the right to require the Company to repurchase a
number of shares of Common Stock held by DIHC and PGGM equal to the product of
(I) the total number of shares proposed to be repurchased and (II) a fraction,
the numerator of which is (A) the number of Shares owned by DIHC and PGGM and
their respective Affiliates and the denominator of which is (B) the sum of the
number of shares of Common Stock owned by such holder plus the number of Shares
owned by DIHC and PGGM and their respective Affiliates.
7.9 AMENDED AND RESTATED BYLAWS. From the date of
adoption of the Amended Bylaws until the third anniversary of such date, PGGM
and DIHC agree not to vote, and to use their commercially reasonable efforts to
cause the PGGM Directors not to vote, to repeal or amend the Amended Bylaws,
where such amendment is covered by Section 10.01(b) of such Amended Bylaws,
unless such amendment is approved by the ▇▇▇▇▇▇ Directors (as defined in the
Amended Bylaws).
8. STANDSTILL. During the Standstill Period, any Holder that
together with its Affiliates owns 25% or more of the issued and outstanding
shares of Common Stock shall not:
(a) directly or indirectly, purchase or otherwise
acquire, or propose or offer to purchase or otherwise acquire, any Equity
Securities whether by tender offer,
market purchase, privately negotiated purchase, Business Combination or
otherwise, if, immediately after such purchase or acquisition, the Holder
Interest of such Holder would equal or exceed the Initial Percentage;
(b) directly or indirectly propose to the Company or any
Person a Business Combination;
(c) make, or in any way participate, directly or
indirectly, in any "solicitation" of "proxies" to vote (as such terms are used
in the rules promulgated by the Commission under Section 14(a) of the Exchange
Act) or seek to advise, encourage or influence any person or entity with respect
to the voting of any shares of capital stock of the Company, initiate, propose
or otherwise solicit stockholders of the Company for the approval of one or more
stockholder proposals or induce or attempt to induce any other Person to
initiate any stockholder proposal; or
(d) deposit any Equity Securities into a voting trust or
subject any Equity Securities to any arrangement or agreement with respect to
the voting of such securities or form, join or in any way participate in a
"group" (within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to any Equity Securities, other than as expressly set forth in Section 7
hereof.
Nothing in this Section 8 shall limit the ability of PGGM Directors to
function in their capacities as members of the Board. The provisions of this
Section 8 may be waived by the Company only upon the approval of a majority of
the Board, excluding all PGGM Directors and shall not be applicable to actions
approved by the majority of the Board, excluding all PGGM Directors in
circumstances in which the PGGM Directors are "interested directors" under
Section 78.140 of the Nevada General Corporation Law.
9. ASSIGNMENT. This Agreement shall not be assignable by the
parties hereto, except (I) by PGGM, DIHC or any Holder pursuant to a transfer of
Shares permitted hereunder to a Permitted Transferee that agrees in writing to
be bound by the terms hereof (including, without limitation, Section 7.5 and 8,
if applicable) and (II) the rights to cause the Company to register Shares
pursuant to Section 3 may be assigned by PGGM, DIHC or any Holder, but only
together with all obligations of Holders under Section 3 and Section 7.4, to a
transferee of Shares representing at least 1% of the issued and outstanding
shares of Common Stock, PROVIDED that, within a reasonable time after such
transfer, the Company is furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to which such
registration rights are being assigned. Notwithstanding any transfer of Shares
in connection with an assignment permitted by this Section 9, the transferor
shall comply with the obligations set forth in Section 2 hereof.
10. MISCELLANEOUS. This Agreement constitutes the sole
understanding of the parties hereto with respect to the subject matter hereof;
provided, HOWEVER, that this provision is not intended to abrogate any other
written agreement between or among the parties executed with or after this
Agreement or any written agreement pertaining to
another subject matter. No amendment of this Agreement shall be binding unless
made in writing and duly executed by the parties hereto. This Agreement shall be
construed in accordance with and governed by the laws of the State of New York
without regard to conflict of laws principles thereof. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority or by any
board of arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision. Unless otherwise expressly
provided herein, all references in this Agreement to Section(s) shall refer to
the Section(s) of this Agreement. The headings in this Agree-ment are for
purposes of reference only and shall not limit or otherwise affect the meaning
of this Agreement. This Agreement may be ex-ecuted in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
11. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by cable, by telecopy, by telegram, by telex or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
11):
(a) IF TO PGGM: Pensioenfonds PGGM
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy: 011 (31.30) 696-3388
Attention: Mr. Jan van der Vlist
▇▇. ▇▇▇▇▇▇ ▇. van de Puttelaar
WITH A COPY TO: ▇▇▇▇▇▇▇▇ & ▇'▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(b) IF TO DIHC: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇▇▇ & ▇'▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(c) IF TO THE COMPANY: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
WITH A COPY TO: King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(d) If to any other Holder to the address set forth in
the notice referred to in Section 9 hereof.
12. REMEDY. In the event that the Company materially breaches its
obligations to PGGM under Sections 7.1 and 7.2 hereof and such breach continues
for a period of 30 days after PGGM gives the Company written notice of such
breach, the obligations of PGGM under Sections 7.4, 7.5 and 8 shall thereafter
be suspended for such period of time as such breach continues; PROVIDED,
HOWEVER, that upon any such breach being cured by the Company or waived by PGGM,
PGGM shall again be obligated to comply with the provisions of Sections 7.4, 7.5
and 8.
13. THIRD PARTY BENEFICIARY. The parties to this Agreement agree
and acknowledge that ▇▇▇▇▇▇ III or the ▇▇▇▇▇▇ Designee are intended
beneficiaries of the provisions of Sections 7.1(d) and 7.9 of this Agreement,
and ▇▇▇▇▇▇ III and the ▇▇▇▇▇▇ Designee shall have the rights of intended
beneficiaries to enforce such provisions.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the date first above written.
CORNERSTONE PROPERTIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
DUTCH INSTITUTIONAL HOLDING COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID, GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
By: /s/ R.M.S.M. Munsters
------------------------------------
Name: R.M.S.M. Munsters
Title: Managing Director Investments
By: /s/ ▇.▇. ▇▇ ▇▇▇▇
------------------------------------
Name: ▇.▇. ▇▇ ▇▇▇▇
Title: Chairman, Board of Managing Directors
[Signature Page to Amended and Restated Registration Rights and Voting
Agreement]
EXHIBIT A
TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AND VOTING AGREEMENT
Stockholders' Agreement dated November 22, 1996, between the Company and New
York State Teachers' Retirement System.
Stockholders' Agreement dated November 7, 1996, between the Company and Hexalon
Real Estate, Inc.
Letter Agreement dated July 10, 1995 between the Company and Deutsche Bank AG.
Registration Rights Agreement dated June 3, 1998, by and between the Company and
the parties named therein.
Registration Rights Agreement dated as of January 29, 1998, among the Company
and the Holders identified therein.
Registration Rights Agreement dated as of April 28, 1998, among the Company and
the Holders identified therein.
Registration Rights Agreement dated as of April 28, 1998, among the Company and
The Prudential Insurance Company of America.
Registration Rights and Lockup Agreement dated December 16, 1998, by and between
the Company and the parties named therein.