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As filed with the Securities and Exchange Commission on May 15, 1998
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
BOSTON PROPERTIES, INC.
(Exact name of Registrant as Specified in Its Charter)
DELAWARE 04-2473675
(State of Incorporation) (I.R.S. Employer Identification #)
8 ARLINGTON STREET
BOSTON, MASSACHUSETTS 02116
(617) 859-2600
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
BOSTON PROPERTIES, INC. 1997 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
----------------------
MORTIMER B. ZUCKERMAN, CHAIRMAN
EDWARD H. LINDE, PRESIDENT AND CHIEF EXECUTIVE OFFICER
BOSTON PROPERTIES, INC.
8 ARLINGTON STREET
BOSTON, MASSACHUSETTS 02116
(617) 859-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
______________________
With copies to:
GILBERT G. MENNA, P.C.
EDWARD M. SCHULMAN, ESQ.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109
(617) 570-1000
______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Title of Securities Being Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 7,611,668 $33.28125 (2) $253,325,826 $74,731.12
per share
============================================================================================================================
</TABLE>
(1) Shares issued or available for issuance under the Boston Properties, Inc.
1997 Stock Option and Incentive Plan, as amended; plus such additional
number of shares as may be required pursuant to the Boston Properties, Inc.
1997 Stock Option and Incentive Plan, as amended, in the event of a stock
dividend, reverse stock split, split-up, recapitalization, forfeiture of
stock under the Plan or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended (the "Securities Act"), solely for the purposes of
determining the amount of the registration fee. The registration fee is
based upon the average of the high and low prices for the Registrant's
Common Stock, $0.01 par value per share, as reported on the New York Stock
Exchange on May 11, 1998.
================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Boston Properties, Inc. (the "Registrant") hereby incorporates by reference
the documents listed in (a) through (c) below, which have previously been filed
with the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(b) (1) The Registrant's Current Report on Form 8-K dated January 12, 1998;
(2) The Registrant's Current Report on Form 8-K dated January 26, 1998;
(3) The Registrant's Current Report on Form 8-K dated February 6, 1998;
and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated June 12, 1997,
including any amendment or report filed for the purpose of amending
such description.
In addition, all documents subsequently filed with the Securities and
Exchange Commission (the "Commission") by the Registrant 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.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Certain legal matters, including the validity of the shares of the
Registrant's Common Stock offered hereby, will be passed upon for the Registrant
by Goodwin, Procter & Hoar LLP. Gilbert G. Menna, the sole shareholder of
Gilbert G. Menna, P.C., a partner of Goodwin, Procter & Hoar LLP, serves as an
Assistant Secretary of the Registrant. Certain partners of Goodwin, Procter &
Hoar LLP or their affiliates, together with Mr. Menna, own approximately 20,000
shares of the Registrant's Common Stock. Goodwin, Procter & Hoar LLP occupies
approximately 26,000 square feet at 599 Lexington Avenue, New York, NY under a
lease with the Registrant that expires in 2002.
Item 6. Indemnification of Directors and Officer.
----------------------------------------
The Registrant's Amended and Restated Certificate of Incorporation (the
"Certificate") and the Registrant's Amended and Restated Bylaws (the "Bylaws")
provide certain limitations on the liability of the Registrant's directors and
officers for monetary damages to the Registrant. The Certificate and Bylaws
obligate the Registrant to indemnify its directors and officers, and permit the
Registrant to indemnify its employees and other agents, against certain
liabilities incurred in connection with their service in such capacities. These
1
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provisions could reduce the legal remedies available to the Registrant and the
stockholders against these individuals.
The Registrant's Certificate limits the liability of the Registrant's
directors and officers to the Registrant to the fullest extent permitted from
time to time by Delaware General Corporation Law (the "DGCL"). The DGCL permits,
but does not require, a 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 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 Certificate 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 Bylaws provide that directors and officers of the Registrant shall
be, and, in the discretion of the Registrant's Board of Directors, non-officer
employees may be, indemnified by the Registrant 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 Registrant. 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 Registrant has entered into indemnification agreements with each of
its directors and executive officers. The indemnification agreements require,
among other matters, that the Registrant 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 Registrant
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 the Registrant's 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
Registrant's Board of Directors or the Registrant's 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 of 1933, as amended (the "Securities Act") is against public policy and
unenforceable pursuant to Section 14 of the Securities Act.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
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Item 8. Exhibits.
--------
(a) The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
Exhibit
- -------
5.1 Opinion of Goodwin, Procter & Hoar LLP, as to the legality of the
securities being registered
10.1 Boston Properties, Inc. 1997 Stock Option and Incentive Plan*
23.1 Consent of Independent Accountants, Coopers & Lybrand L.L.P.
23.2 Consent of Counsel, Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1 hereto)
24.1 Powers of Attorney
Item 9. Undertakings.
------------
(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 by the undersigned
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated herein by reference in the registration statement.
____________________________
* Incorporated herein by reference to the Registrant's Registration Statement on
Form S-11 (No. 333-25279).
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(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; and
(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, 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
report 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 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 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 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.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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
11th day of May, 1998.
BOSTON PROPERTIES, INC.
By:/s/ Edward H. Linde
------------------------------------------
Edward H. Linde, President and Chief
Executive Officer
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
* Chairman of the Board of Directors May 11, 1998
- --------------------------
Mortimer B. Zuckerman
/s/ Edward H. Linde President and Chief Executive Officer, May 11, 1998
- --------------------------
Edward H. Linde Director (Principal Executive Officer)
/s/ David G. Gaw Chief Financial Officer (Principal
- --------------------------
David G. Gaw Financial Officer and Principal May 11, 1998
Accounting Officer)
* Director May 11, 1998
- --------------------------
Alan J. Patricof
* Director May 11, 1998
- -------------------------
Ivan G. Seidenberg
* Director May 11, 1998
- -------------------------
Martin Turchin
</TABLE>
*By:/s/ Edward H. Linde
-------------------
Edward H. Linde, as
attorney-in-fact
5
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EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of the securities being registered
10.1 Boston Properties, Inc. 1997 Stock Option and Incentive Plan*
23.1 Consent of Independent Accountants, Coopers & Lybrand L.L.P.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1 hereto)
24.1 Powers of Attorney
____________________________
* Incorporated herein by reference to the Registrant's Registration Statement on
Form S-11 (No. 333-25279).
<PAGE>
EXHIBIT 5.1
May 11, 1998
Boston Properties, Inc.
8 Arlington Street
Boston, Massachusetts 02116
Re: Boston Properties, Inc. Registration on Form S-8
------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant to
the Securities Act of 1933, as amended (the "Act"), of 7,611,668 shares (the
"Shares") of common stock, par value $.01 per share (the "Common Stock"), of
Boston Properties, Inc. (the "Company") which may be issued pursuant to the
Boston Properties, Inc. 1997 Stock Option and Incentive Plan (the "Plan").
We have acted as counsel to the Company in connection with the registration
of the Shares under the Act. We have examined the Plan; the Amended and Restated
Certificate of Incorporation and the Amended and Restated By-laws of the
Company, each as amended to date; such records of the corporate proceedings of
the Company as we deemed material; and such other certificates, receipts,
records and documents as we considered necessary for the purposes of this
opinion.
We are attorneys admitted to practice in the Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdictions other than the
laws of the United States of America and the Commonwealth of Massachusetts and
the general corporation laws of the State of Delaware.
Based upon the foregoing, we are of the opinion that upon the issuance and
delivery of the Shares in accordance with the terms of the Registration
Statement and the Plan, the Shares will be legally issued, fully paid and non-
assessable shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Act and applicable requirements of state laws regulating
the offer and sale of securities.
We hereby consent to the filing of this opinion as part of the above-
referenced Registration Statement and to the use of our name therein.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Boston Properties, Inc. on Form S-8 (File No. _____) of our report dated January
23, 1998, except for Note 16 for which the date is February 2, 1998, on our
audits of the consolidated and combined financial statements and financial
statement schedule of Boston Properties, Inc. as of December 31, 1997 and for
the period from June 23, 1997 through December 31, 1997 and of The Boston
Properties Predecessor Group as of December 31, 1996 and for the period from
January 1, 1997 through June 22, 1997 and for the years ended December 31, 1996
and 1995, which report is included in the Annual Report on Form 10-K for the
fiscal period ended December 31, 1997.
/s/ Coopers & Lybrand L.L.P.
Boston, Massachusetts
May 11, 1998
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints each of Edward H. Linde and David G. Gaw,
acting together or singularly, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him in his name, place
and stead, in any and all capacities, (i) to sign a Registration Statement on
Form S-8 under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the shares issuable pursuant to the Boston Properties, Inc. 1997
Stock Option and Incentive Plan and (ii) to sign any and all amendments
(including post-effective amendments pursuant to Rule 462(b) under the
Securities Act) to such Registration Statement, and (iii) to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission under the Securities Act. The undersigned
hereby ratifies and confirms to all that such attorney-in-fact or his substitute
may lawfully do or cause to be done by virtue hereof.
Signature Capacity Date
--------- -------- ----
/s/ Mortimer B. Zuckerman Chairman of the Board of Directors May 11, 1998
- -------------------------
Mortimer B. Zuckerman
/s/ Edward H. Linde President and Chief Executive Officer, May 11, 1998
- -------------------
Edward H. Linde Director (Principal Executive Officer)
/s/ David G. Gaw Chief Financial Officer (Principal May 11, 1998
- ----------------
David G. Gaw Financial Officer and Principal
Accounting Officer)
/s/ Alan J. Patricof Director May 11, 1998
- --------------------
Alan J. Patricof
/s/ Ivan G. Seidenberg Director May 11, 1998
- ----------------------
Ivan G. Seidenberg
/s/ Martin Turchin Director May 11, 1998
- ------------------
Martin Turchin
