As filed with the Securities and Exchange Commission on January 29, 2001
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BOSTON PROPERTIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-2473675
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
800 Boylston Street, Suite 400
Boston, Massachusetts 02199
(617) 236-3300
(Address, including zip code, and telephone number, including area code
of Registrant's principal executive offices)
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Boston Properties, Inc.
1997 Stock Option and Incentive Plan
(Full Title of the Plan)
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Mortimer B. Zuckerman, Chairman
Edward H. Linde, President
and Chief Executive Officer
BOSTON PROPERTIES, INC.
800 Boylston Street, Suite 400
Boston, Massachusetts 02199
(617) 236-3300
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
GILBERT G. MENNA, P.C.
Goodwin Procter LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
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Common Stock, par 8,932,101 $41.875 $374,031,729 $93,507.93
value $.01 per share
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(1) This Registration Statement also relates to the rights to purchase shares
of Series E Junior Participating Cumulative Preferred Stock of the
Registrant which are attached to all shares of Common Stock issued,
pursuant to the terms of the Registrant's Shareholder Rights Agreement
adopted on June 16, 1997. Until the occurrence of certain prescribed
events, the rights are not exercisable, are evidenced by the certificates
for the Common Stock and will be transferred with and only with such Common
Stock. Because no separate consideration is paid for the rights, the
registration fee therefor is included in the fee for the Common Stock. This
Registration Statement also relates to such additional shares as may be
issuable as a result of certain adjustments including, without limitation,
stock dividends, stock splits and distributions of options, warrants,
convertible securities, evidences of indebtedness or assets.
(2) This estimate is based on the average of the high and low sales prices of
the common stock of Boston Properties, Inc., par value $.01 per share, as
reported on the New York Stock Exchange on January 26, 2001, pursuant to
Rule 457(c) and (h) under the Securities Act, solely for purposes of
determining the registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by Boston Properties, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference as of their respective dates:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1999;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000;
(c) the Company's Current Reports on Form 8-K filed on April 26,
2000, July 27, 2000, October 16, 2000 and January 24, 2001.
(d) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, filed on June 12, 1997, and
all amendments and reports updating such description; and
(e) the description of the rights to purchase shares of the Company's
Series E Junior Participating Cumulative Preferred Stock
contained in the Company's Registration Statement on Form 8-A,
filed on June 12, 1997, and the description contained in the
Company's Registration Statement on Form 8-A/A filed on June 16,
1997 amending such description, and all amendments and reports
updating such description.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Certain legal matters, including the legality of the securities, have
been passed upon for the Company by Goodwin Procter LLP. Gilbert G. Menna, the
sole shareholder of Gilbert G. Menna, P.C., a partner of Goodwin Procter LLP,
serves as an Assistant Secretary of the Company. Certain partners of Goodwin
Procter LLP or their affiliates, together with Mr. Menna, own approximately
20,000 shares of Common Stock of the Company. Goodwin Procter LLP occupies
approximately 26,000 square feet at 599 Lexington Avenue, New York under a lease
with the Company that expires in 2002.
Item 6. Indemnification of Directors and Officers.
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The Company's Charter and Bylaws provide certain limitations on the
liability of its directors and officers for monetary damages to the Company. The
Charter and Bylaws obligate the Company to indemnify its directors and officers,
and permit the Company to indemnify its employees and other agents, against
certain liabilities incurred in connection with their service in such
capacities. These provisions could reduce the legal remedies available to the
Company and its stockholders against these individuals.
The Charter limits the liability of directors and officers to the
Company to the fullest extent permitted from time to time by the Delaware
General Corporate Law ("DGCL"). The DGCL permits, but does not require, a
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corporation to indemnify its directors, officers, employees or agents and
expressly provides that the indemnification provided for under the DGCL shall
not be deemed exclusive of any indemnification right under any bylaw, vote of
stockholders or disinterested directors, or otherwise. The DGCL permits
indemnification against expenses and certain other liabilities arising out of
legal actions brought or threatened against such persons for their conduct on
behalf of the corporation, provided that each such person acted in good faith
and in a manner that he or she reasonably believed was in or not opposed to the
corporation's best interests and in the case of a criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The DGCL does not
allow indemnification of directors in the case of an action by or in the right
of the corporation (including stockholder derivative suits) unless the directors
successfully defend the action or indemnification is ordered by the court.
The Charter contains a provision permitted by Delaware law that
generally eliminates the personal liability of directors for monetary damages
for breaches of their fiduciary duty, including breaches involving negligence or
gross negligence in business combinations, unless the director has breached his
or her duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or a knowing violation of law, paid a dividend or approved a stock
repurchase in violation of the DGCL or obtained an improper personal benefit.
The provision does not alter a director's liability under the federal securities
laws. In addition, this provision does not affect the availability of equitable
remedies, such as an injunction or rescission, for breach of fiduciary duty.
The Company's Bylaws provide that its directors and officers will be,
and, in the discretion of the Board of Directors, non-officer employees may be,
indemnified by the Company to the fullest extent authorized by Delaware law, as
it now exists or may in the future be amended, against all expenses and
liabilities actually and reasonably incurred in connection with service for or
on behalf of the Company. The Bylaws also provide that the right of directors
and officers to indemnification shall be a contract right and shall not be
exclusive of any other right now possessed or hereafter acquired under any
bylaw, agreement, vote of stockholders, or otherwise.
The Company has entered into indemnification agreements with each of its
directors and executive officers. The indemnification agreements require, among
other matters, that the Company indemnify its directors and officers to the
fullest extent permitted by law and advance to the directors and officers all
related expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. Under these agreements, the Company must also
indemnify and advance all expenses incurred by directors and officers seeking to
enforce their rights under the indemnification agreements and may cover
directors and officers under its directors' and officers' liability insurance.
Although the form of indemnification agreement offers substantially the same
scope of coverage afforded by law, it provides additional assurance to directors
and officers that indemnification will be available because, as a contract, it
cannot be modified unilaterally in the future by the Board of Directors or
stockholders to eliminate the rights it provides. It is the position of the
Commission that indemnification of directors and officers for liabilities under
the Securities Act is against public policy and is unenforceable pursuant to
Section 14 of the Securities Act.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement:
5.1 Opinion of Goodwin Procter LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin Procter LLP (included in their opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
99.1 Boston Properties, Inc. 1997 Stock Option and Incentive Plan
(incorporated by reference to Exhibit A to the Company's Proxy
Statement for use with its 2000 Annual Meeting of Stockholders,
which was filed with the Commission on March 31, 2000).
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Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in
the information set forth in the registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities
offered (if the total dollar value of securities
offered would not exceed that which was registered)
and any deviation from the low or high end of the
estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than
20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the registration statement or any material
change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual reports pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
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registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
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The Registrant. Pursuant to the requirements of the Securities Act,
Boston Properties, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, the Commonwealth of Massachusetts, on
this 29th day of January, 2001.
BOSTON PROPERTIES, INC.
By: /s/ Edward H. Linde
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Name: Edward H. Linde
Title: President and Chief Executive
Officer
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of Mortimer B. Zuckerman, Edward H. Linde
and Douglas T. Linde as such person's true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for such person in such
person's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
(or any Registration Statement for the same offering that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Mortimer B. Zuckerman Chairman of the Board of Directors January 29, 2001
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Mortimer B. Zuckerman
/s/ Edward H. Linde President and Chief Executive Officer, Director January 29, 2001
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Edward H. Linde (Principal Executive Officer)
/s/Douglas T. Linde Senior Vice President, Chief Financial Officer and Treasurer January 29, 2001
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Douglas T. Linde (Principal Financial Officer and Principal Accounting Officer)
/s/ Alan J. Patricof Director January 29, 2001
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Alan J. Patricof
/s/ Ivan G. Seidenberg Director January 29, 2001
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Ivan G. Seidenberg
/s/ Martin Turchin Director January 29, 2001
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Martin Turchin
/s/ Alan B. Landis Director January 29, 2001
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Alan B. Landis
/s/ Richard E. Salomon Director January 29, 2001
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Richard E. Salomon
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EXHIBIT INDEX
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Exhibit No. Description
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5.1 Opinion of Goodwin Procter LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin Procter LLP (included in their opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Public
Accountants.
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
99.1 Boston Properties, Inc. 1997 Stock Option and Incentive Plan
(incorporated by reference to Exhibit A to the Company's Proxy
Statement for use with its 2000 Annual Meeting of Stockholders,
which was filed with the Commission on March 31, 2000).
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