<PAGE>
As filed with the Securities and Exchange Commission on January 8, 1999
REGISTRATION STATEMENT NO. 333-_______
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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 or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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. 1999 NON-QUALIFIED EMPLOYEE STOCK PURCHASE 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)
Copy to:
GILBERT G. MENNA, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1000
_____________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1)(2) Offering Price Per Aggregate Offering Price Registration Fee
Share
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<S> <C> <C> <C> <C>
Common Stock, par value 250,000 $30.22 (3) $7,555,000.00 $2,101.00
$.01 per share
=================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) 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 11,
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.
(3) 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 4, 1999, pursuant to Rule
457(c) and (h) under the Securities Act, solely for purposes of determining
the registration fee.
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<PAGE>
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,
1997;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998 and the Company's Report on
Form 10-Q/A filed on December 1, 1998, amending the Report on Form 10-Q for
the quarter ending September 30, 1998;
(c) the Company's Current Reports on Form 8-K filed on September 26, 1997,
November 6, 1997, November 26, 1997, December 16, 1997, January 12, 1998,
January 26, 1998, February 6, 1998, June 9, 1998, July 15, 1998, July 17,
1998, July 27, 1998, October 27, 1998 and November 25, 1998 and the
Company's Current Reports on Form 8-K/A filed on November 14, 1997 and
November 25, 1997, amending its Current Report on Form 8-K filed on
September 26, 1997, the Company's Current Reports on Form 8-K/A filed on
November 14, 1997 and December 4, 1997, amending its Current Report on Form
8-K filed on November 6, 1997 and the Company's Current Report on Form 8-
K/A filed on August 25, 1998, amending its Current Reports on Form 8-K
filed on July 15, 1998, July 17, 1998 and July 27, 1998;
(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 5. Interests of Named Experts and Counsel
--------------------------------------
Certain legal matters, including the legality of the Securities, have been
passed upon for the Company 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 Company. Certain partners of
Goodwin, Procter & Hoar LLP or their affiliates, together with Mr. Menna, own
approximately 20,000 shares of Common Stock of the Company. Goodwin, Procter &
Hoar 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.
-----------------------------------------
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 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
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<PAGE>
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 8. Exhibits.
--------
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 & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar 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).
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
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<PAGE>
(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 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 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
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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<PAGE>
SIGNATURES
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 8th day of January, 1999.
BOSTON PROPERTIES, INC.
By: /s/ Edward H. Linde
---------------------------------
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 David G. Gaw 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
--------- ----- ----
/s/ Mortimer B. Zuckerman Chairman of the Board of Directors January 8, 1999
- --------------------------
Mortimer B. Zuckerman
/s/ Edward H. Linde President and Chief Executive January 8, 1999
- -------------------------- Officer, Director (Principal
Edward H. Linde Executive Officer)
/s/ David G. Gaw Chief Financial Officer January 8, 1999
- -------------------------- (Principal Financial Officer
David G. Gaw and Principal Accounting Officer)
/s/ Alan J. Patricof Director January 8, 1999
- --------------------------
Alan J. Patricof
/s/ Ivan G. Seidenberg Director January 8, 1999
- --------------------------
Ivan G. Seidenberg
/s/ Martin Turchin Director January 8, 1999
- --------------------------
Martin Turchin
/s/ Alan B. Landis Director January 8, 1999
- --------------------------
Alan B. Landis
/s/ Richard A. Salomon Director January 8, 1999
- --------------------------
Richard A. Salomon
II-4
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who will administer the plan) have 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 8th day of January, 1999.
BOSTON PROPERTIES, INC.,
as administrator of the Boston Properties, Inc. 1999
Non-Qualified Employee Stock Purchase Plan
By: /s/ Brian Badrigian
--------------------------------------
Name: Brian Badrigian
Title: Vice President, Accounting
II-5
<PAGE>
EXHIBIT INDEX
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Exhibit No. Description
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5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar 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).
<PAGE>
EXHIBIT 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
January 8, 1999
Boston Properties, Inc.
8 Arlington Street
Boston, MA 02116
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant to the
Securities Act of 1933, as amended (the "Act"), of 250,000 shares (the "Shares")
of Common Stock, par value $ 0.01 per share, (the "Common Stock"), of Boston
Properties, Inc. (the "Company") and interests in the Boston Properties, Inc.
1999 Non-Qualified Employee Stock Purchase Plan (the "Plan") sponsored by the
Company and its subsidiaries which may be issued pursuant to the Plan.
In connection with rendering this opinion, we have examined the Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws 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. In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as certified, photostatic or facsimile copies, the authenticity
of the originals of such copies and the authenticity of telephonic confirmations
of public officials and others. As to facts material to our opinion, we have
relied upon certificates or telephonic confirmations of public officials and
certificates, documents, statements and other information of the Company or
representatives or officers thereof.
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, the laws of The Commonwealth of
Massachusetts, and the Delaware General Corporation Law.
Based upon the foregoing, we are of the opinion that upon the issuance and
delivery of the Shares in accordance with the Registration Statement and the
Plan, the Shares will be duly authorized, validly issued, fully paid and non-
assessable.
The foregoing assumes that all requisite steps were taken to comply with the
requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us with respect to this opinion
under the heading "Legal Matters" in the Prospectus which is a part of such
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
--------------------------------
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in this
Form S-8 Registration Statement of Boston Properties, Inc. and to the
incorporation by reference therein of our reports indicated below with respect
to the financial statements indicated below of Boston Properties, Inc.
Date of
Independent
Financial Statements Accountants Report
-------------------- ------------------
Financial statements of Boston Properties, Inc. January 23, 1998,
as of December 31, 1997 and for the period from except for
June 23, 1997 to December 31, 1997, and of The Boston Note 16 as to which
Properties Predecessor Group as of December 31, 1996 the date is
and for the years ended December 31, 1996 and 1995, and February 2, 1998
for the period from January 1, 1997 to June 22, 1997.
Financial statement schedules of Boston Properties, Inc.
as of December 31, 1997. January 23, 1998
Statement of revenue over certain operating expenses
of Riverfront Plaza for the year ended December 31, 1997. August 17, 1998
Statement of revenue over certain operating expenses
of the Mulligan/Griffin Portfolio for the year ended
December 31, 1997. August 14, 1998
Statement of revenue over certain operating expenses
of the Carnegie Center Portfolio for the year ended
December 31, 1997. July 30, 1998
Statement of revenue over certain operating expenses
of Prudential Center for the year ended
December 31, 1997. July 24, 1998
Statement of revenue over certain operating expenses
of Metropolitan Square for the year ended
December 31, 1997. July 10, 1998
Statement of revenue over certain operating expenses
of Riverfront Plaza for the year ended December 31, 1996. November 25, 1997
Statement of revenue over certain operating expenses
of the Mulligan/Griffin Portfolio for the year ended
December 31, 1996. November 20, 1997
Statement of revenue over certain operating expenses
of 100 East Pratt Street for the year ended
December 31, 1996. November 3, 1997
Statement of revenue over certain operating expenses
of 875 Third Avenue for the year ended
December 31, 1996. October 17, 1997
Statement of revenue over certain operating expenses
of 280 Park Avenue for the year ended December 31, 1996. October 17, 1997
PricewaterhouseCoopers LLP
Boston, Massachusetts
January 7, 1999
