<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
TO
SCHEDULE 13D
Under the Securities Exchange Act of 1934
CORNERSTONE PROPERTIES, INC.
(Name of Issuer)
COMMON STOCK, NO PAR VALUE
(Title of Class of Securities)
218916104
(CUSIP Number)
ANN F. CHAMBERLAIN, ESQ.
RICHARDS & O'NEIL, LLP
885 THIRD AVENUE
NEW YORK, NEW YORK
10022-4873
(212) 207-1200
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 16, 1998 & December 31, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. / /
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SCHEDULE 13D
- --------------------------------------------------------------------------------
CUSIP NO. 218916104
- --------------------------------------------------------------------------------
(1) Name of reporting person STICHTING PENSIOENFONDS VOOR
DE GEZONDHEID GEESTELIJKE EN
- ------------------------------------ MAATSCHAPPELIJKE BELANGEN
S.S. or I.R.S. identification
Nos. of above persons
- ------------------------------------
- -------------------------------------- -----------------------------------------
(2) Check the appropriate box if a
member of a group (a) / /
(see instructions) (b) / /
- -------------------------------------- -----------------------------------------
(3) SEC use only
- -------------------------------------- -----------------------------------------
(4) Source of funds
(see instructions)
WC
- -------------------------------------- -----------------------------------------
(5) Check if disclosure of legal
proceedings is required pursuant / /
to items 2(d) or 2(e)
- -------------------------------------- -----------------------------------------
(6) Citizenship or place of
organization THE NETHERLANDS
- -------------------------------------- -----------------------------------------
Number of shares beneficially owned
by each reporting person with:
- -------------------------------------- -----------------------------------------
(7) Sole voting power 45,779,703
- -------------------------------------- -----------------------------------------
(8) Shared voting power 0
- -------------------------------------- -----------------------------------------
(9) Sole dispositive power 45,779,703
- -------------------------------------- -----------------------------------------
(10) Shared dispositive power 0
- -------------------------------------- -----------------------------------------
(11) Aggregate amount beneficially
owned by each reporting person 45,779,703
- -------------------------------------- -----------------------------------------
(12) Check box if the aggregate amount
in Row (11) excludes certain
shares (see instructions) / /
- -------------------------------------- -----------------------------------------
(13) Percent of class represented by
amount in Row (11) 35.7%
- -------------------------------------- -----------------------------------------
(14) Type of reporting person
(see instructions) HC/EP
- -------------------------------------- -----------------------------------------
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- --------------------------------------------------------------------------------
CUSIP NO. 218916104
- --------------------------------------------------------------------------------
(1) Names of reporting person
------------------------- DUTCH INSTITUTIONAL HOLDING COMPANY,
INC.
S.S. or I.R.S. identification
Nos. of above persons
-----------------------------
- -------------------------------------- -----------------------------------------
(2) Check the appropriate box (a) / /
if a member of a group
(see instructions) (b) / /
- -------------------------------------- -----------------------------------------
(3) SEC use only
- -------------------------------------- -----------------------------------------
(4) Source of funds (see
instructions)
- -------------------------------------- -----------------------------------------
(5) Check if disclosure of legal
procedures is required pursuant
to items 2(d) or 2(e) / /
- -------------------------------------- -----------------------------------------
(6) Citizenship or place of
organization DELAWARE
- -------------------------------------- -----------------------------------------
Number of shares beneficially owned
by each reporting person with:
- -------------------------------------- -----------------------------------------
(7) Sole voting power 0
- -------------------------------------- -----------------------------------------
(8) Shared voting power 0
- -------------------------------------- -----------------------------------------
(9) Sole dispositive power 0
- -------------------------------------- -----------------------------------------
(10) Shared dispositive power 0
- -------------------------------------- -----------------------------------------
(11) Aggregate amount beneficially
owned by each reporting person 0
- -------------------------------------- -----------------------------------------
(12) Check box if the aggregate
amount in Row (11) excludes / /
certain shares (see instructions)
- -------------------------------------- -----------------------------------------
(13) Percent of class represented by
amount in Row (11) 0%
- -------------------------------------- -----------------------------------------
(14) Type of reporting person
(see instructions) CO
- -------------------------------------- -----------------------------------------
<PAGE>
CORNERSTONE PROPERTIES, INC. SCHEDULE 13D
AMENDMENT NO. 3
This Amendment No. 3 ("AMENDMENT NO. 3") amends a Statement on Schedule 13D
(the "SCHEDULE 13D"), dated as of August 26, 1997 and filed by Stichting
Pensioenfonds Voor De Gezondheid Geestelijke en Maatschappelijke Belangen
("PGGM") and Dutch Institutional Holding Company, Inc. ("DIHC", and, together
with PGGM, the "REPORTING PERSONS"), as amended by an Amendment No. 1, dated as
of October 30, 1997 ("AMENDMENT NO. 1") and an Amendment No. 2, dated as of
June 30, 1998 ("AMENDMENT NO. 2"). This Amendment No. 3 amends Items 3, 5, 6
and 7 of the Schedule 13D. Items 1, 2 and 4 are not amended hereby.
Capitalized terms used in this Amendment No. 3 not otherwise defined herein
shall have the meanings ascribed to such terms in the Schedule 13D and
Amendments No. 1 and 2.
This Amendment No. 3 is being filed to reflect (i) the acquisition by PGGM
on December 16, 1998 of 11,596,203 shares of Common Stock of Cornerstone
Properties, Inc. (the "COMPANY") pursuant to a Stock Purchase Agreement, dated
as of June 22, 1998 (the "STOCK PURCHASE AGREEMENT"), as amended by the First
Amendment, dated November 30, 1998 (the "FIRST AMENDMENT"), attached hereto as
Exhibit P and incorporated herein by reference, and certain transactions
contemplated thereby which permit PGGM to continue to influence the control of
the Company; (ii) the acquisition by PGGM on December 31, 1998 of the 6,726,750
shares of Common Stock of the Company previously owned by DIHC (the "DIHC COMMON
STOCK"); and (iii) the fact that DIHC no longer owns more than 5% of the Common
Stock of the Company.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to the Stock Purchase Agreement PGGM purchased and the Company
sold, an aggregate of 11,594,203 shares of Common Stock of the Company at a per
share price equal to $17.25, for an aggregate purchase price of $200,000,000.
PGGM used internal funds to purchase the Common Stock. PGGM acquired the DIHC
Common Stock as part of the consideration it received on December 31, 1998 in
redemption of certain shares of capital stock of DIHC owned by it.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) As of the date hereof, PGGM owns in the aggregate, 45,779,703 shares
of Common Stock of the Company (representing approximately 35.7% of the
128,210,769 shares of Common Stock of the Company outstanding as of December 16,
1998).
(b) As of the date hereof, PGGM has the power to vote or to direct the
vote of or the power to dispose or direct the disposition of the shares of
Common Stock of the Company that are beneficially owned by it as follows:
Beneficial Right Right to No Right to
Ownership to Vote Dispose Vote or Dispose
PGGM 45,779,703 45,779,703 45,779,703 0
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(c) None.
(d) None.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
Except for the information set forth in Items 3, 4, 5 and 6 of Amendment
No. 2 and as described below in this Item 6, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between or
among the persons named in Item 2 or between such persons and any other person
with respect to the Common Stock of the Company.
1. FINAL AMENDED AND RESTATED REGISTRATION RIGHTS AND VOTING
AGREEMENT
At the closing of the Stock Purchase Agreement, PGGM, DIHC and the Company
entered into an Amended and Restated Registration Rights and Voting Agreement
(the "FINAL AMENDED AND RESTATED REGISTRATION RIGHTS AND VOTING AGREEMENT"),
which is attached hereto as Exhibit Q and is incorporated by reference herein.
Except as expressly noted below in this Item 6, paragraph 1, the provisions of
the Registration Rights Agreement described in Amendment No. 2 and filed as
Exhibit K thereto are those contained in the Final Amended and Restated
Registration Rights and Voting Agreement.
A. BOARD REPRESENTATION
The Final Amended and Restated Registration Rights and Voting
Agreement provides that as long as PGGM and DIHC and their affiliates own in the
aggregate 5% or more of the issued and outstanding shares of Common Stock of the
Company, the Company will take all action necessary to ensure that two members
of the Board of Directors of the Company (the "COMPANY BOARD") are individuals
designated by PGGM ("PGGM DIRECTORS"). In addition, until the earlier to occur
of (a) the date on which PGGM and DIHC and their affiliates own in the aggregate
less than 25% of the issued and outstanding shares of Common Stock of the
Company and (b) October 27, 2002, (i) the Company will take all action necessary
to ensure that one PGGM Director is appointed to the board affairs committee of
the Company Board (the "BOARD AFFAIRS COMMITTEE"), (ii) all nominees for
directors of the Company by the Company Board (other than "INCUMBENT DIRECTORS"
(as defined below) and PGGM Directors) shall be persons not affiliated with PGGM
or DIHC or any of their affiliates and will be made with the unanimous approval
of the Board Affairs Committee, (iii) each of PGGM and DIHC will vote (or
provide written consent with respect to) all shares of Common Stock of the
Company over which it will exercise voting authority in favor of the persons
nominated as PGGM Directors and all nominees of the Company Board nominated in
accordance with (ii), above and all Incumbent Directors, (iv) the Company will
take all action necessary to ensure that vacancies on the Company Board caused
by the resignation, removal or death of a PGGM Director are filled with a PGGM
Director, and (v) the number of directors constituting the full Company Board
will not be
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increased without the unanimous consent of the Board Affairs Committee.
"INCUMBENT DIRECTORS" means (i) all individuals constituting the
Company Board at the Closing, (ii) all individuals thereafter
designated as nominees to the Company Board by New York State
Teachers' Retirement System pursuant to a letter agreement dated
November 22, 1996, (iii) all individuals thereafter designated as
nominees to the Company Board by Hexalon Real Estate, Inc. pursuant to
a letter agreement dated November 7, 1996, and (iv) one individual at
any time thereafter designated by Deutsche Bank AG as a nominee to the
Company Board, (v) Messrs. William Wilson III, Donald G. Fisher and
Randall A. Hack as nominees to the Company Board pursuant to an
agreement dated as of June 22, 1998, as amended.
B. FINAL AMENDED AND RESTATED BYLAWS
The Final Amended and Restated Registration Rights and Voting
Agreement provides that from December 16, 1998, the date of adoption of the
Amended and Restated Bylaws of the Company, the form of which is attached hereto
as Exhibit R and incorporated by reference herein (the "FINAL BYLAWS"), until
the third anniversary of such date, each of the Reporting Persons shall (i) vote
all shares of Common Stock of the Company over which it exercises voting
authority in favor of the persons nominated as Wilson Directors (as defined in
the Final Bylaws) pursuant to Section 3.03(a) of the Final Bylaws and approved
by the Board Affairs Committee as set forth in Section 3.02 of the Final Bylaws;
and (ii) use commercially reasonable efforts to cause the PGGM Directors, in
considering the nominees proposed by William Wilson, III ("WILSON III") or such
other person as is designated by Wilson III for inclusion in the Company Board's
list of nominees for election as director to approve in all cases Wilson III and
in considering other persons nominated as Wilson Directors, not to unreasonably
withhold its approval. The Reporting Persons also agree not to vote to repeal
or amend the Final Bylaws, where such amendment is covered by Section 10.01(b)
of such Final Bylaws, unless such amendment is approved by the Wilson Directors.
2. REVISIONS TO THE COMPANY'S BYLAWS
The Final Bylaws which were adopted by the Company effective December 16,
1998, provide that (a) as long as PGGM and DIHC and their affiliates own in the
aggregate 5% or more of the issued and outstanding shares of Common Stock of the
Company, the Company Board will nominate two PGGM Directors for election to the
Company Board at any meeting of stockholders at which directors are being
elected; and (b) during the period that ends on the earlier of the date on which
the Reporting Persons and their affiliates own in the aggregate less than 25% of
the issued and outstanding shares of Common Stock of the Company or October 31,
2002 (the "PGGM PERIOD"), (i) the number of directors constituting the Company
Board may not be increased or decreased without approval of a majority of the
Company Board and the unanimous approval of the Board Affairs Committee; (ii) no
director of the Company will be a person affiliated with the Reporting Persons
or their affiliates other than the two PGGM Directors; (iii) all nominees for
directors of the Company by the Company Board (other than PGGM Directors, Wilson
III and Incumbent Directors) must be approved by the unanimous vote of the Board
<PAGE>
Affairs Committee; (iv) the members of each committee of the Company Board
except the audit and compensation committee shall include at least one PGGM
Director (if any are members of the Company Board); (v) the duties and
responsibilities of the Board Affairs Committee will not be amended without the
unanimous approval of the Board Affairs Committee; and (vi) no fewer than half
of the members of the investment committee shall be individuals that are not
employees of the Company.
The Final Bylaws provide that (i) during the PGGM Period, any amendment of
the Final Bylaws relating to the rights of the Reporting Persons or the PGGM
Directors, which rights are specific during the PGGM Period to DIHC, PGGM or the
PGGM Directors and not granted to directors generally, will require the
affirmative vote of a majority of the entire Company Board and the unanimous
approval of the Board Affairs Committee; and (ii) so long as the Reporting
Persons and their affiliates own in the aggregate 5% or more of the issued and
outstanding shares of Common Stock of the Company, amendment of the provisions
of the Amended Bylaws related to (i) above shall require the affirmative vote of
a majority of the entire Company Board and the unanimous approval of the Board
Affairs Committee
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT A, which was previously filed as Exhibit A to Amendment No. 2
contains the name, citizenship, office, business address and present principal
occupation of each executive officer and director of PGGM.
EXHIBIT B, which appears on page 22 of Amendment No. 2, contains the name,
citizenship, office, business address and present principal occupation of each
executive officer and director of DIHC.
EXHIBIT C, previously filed as Exhibit C to Schedule 13D, is the Loan
Purchase Agreement by PGGM and the Company dated as of August 18, 1997.
EXHIBIT D, previously filed as Exhibit D to Schedule 13D, is Schedule
3.07(a) of the Loan Purchase Agreement, which sets forth the Purchased Loans and
the Purchased Loan Documents of PGGM transferred to the Company.
EXHIBIT E, previously filed as Exhibit E to Schedule 13D, is the Stock
Purchase Agreement by DIHC and the Company dated as of August 18, 1997.
EXHIBIT F, previously filed as Exhibit F to Schedule 13D, are Schedules
3.02 and 3.03(a) of the 1997 Stock Purchase Agreement, which set forth the
Seller Subsidiary Shares of DIHC transferred to the Company.
EXHIBIT G, previously filed as Exhibit G to Schedule 13D, is Schedule
1.01(1) of the 1997 Stock Purchase Agreement, which sets forth the properties of
DIHC transferred to the Company.
EXHIBIT H, which appears on page 23 of Amendment No. 2, is the Stock
Purchase Agreement entered into by the Company and PGGM on June 22, 1998.
EXHIBIT I, previously filed as Exhibit A to Amendment No. 1, is a copy of
the Common Stock Purchase Agreement referred to in Item 5 hereof.
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EXHIBIT J, previously filed as Exhibit B to Amendment No. 1, is the
Registration Rights and Voting Agreement entered into by PGGM, DIHC, and the
Company on October 27, 1997, the provisions of which are described in the
Schedule 13D.
EXHIBIT K, which appears on page 38 of Amendment No. 2, is the form of the
Amended and Restated Registration Rights and Voting Agreement which is proposed
to be entered into by PGGM, DIHC, and the Company.
EXHIBIT L, previously filed as Exhibit I to Amendment No. 1, is the
amendment to the Company's Charter.
EXHIBIT M, which appears on page 72 of Amendment No. 2, is the proposed
Amended and Restated Bylaws of the Company.
EXHIBIT N, which appears on page 89 of Amendment No. 2, is the Voting
Agreement entered into by the Company, WW&A, PGGM and DIHC on June 22, 1998.
EXHIBIT O, previously filed as Exhibit C to Amendment No. 1, is the Joint
Filing Agreement between PGGM and DIHC.
EXHIBIT P, which appears on page 10 of this Amendment No. 3, is the
First Amendment, dated November 20, 1998, to the Stock Purchase Agreement.
EXHIBIT Q, which appears on page 12 of this Amendment No. 3, is the
Amended and Restated Registration Rights and Voting Agreement, dated
December 16, 1998.
EXHIBIT R, which appears on page 49 of this Amendment No. 3, is the
form of Amended and Restated Bylaws of the Company adopted effective
December 16, 1998.
EXHIBIT S, which appears on page 66 of this Amendment No. 3, is the Joint
Filing Agreement between PGGM and DIHC, dated December 31, 1998.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Dated: December 31, 1998
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
By: /s/ Dick J. de Beus
-------------------------------
Name: Dick J. de Beus
Title: Chairman, Board of
Managing Directors
By: /s/ Pieter S. van den Berg
-------------------------------
Name: Pieter S. van den Berg
Title: Staff Director
DUTCH INSTITUTIONAL HOLDING
COMPANY, INC.
By: /s/ Craig W. Johnston
-------------------------------
Name: Craig W. Johnston
Title: Vice President
<PAGE>
Exhibit P
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT, dated as of November 30, 1998
(the "FIRST AMENDMENT"), by and between CORNERSTONE PROPERTIES INC., a Nevada
corporation (the "COMPANY"), and STICHTING PENSIOENFONDS VOOR DE GEZONDHEID,
GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN, a stichting formed according to the
laws of the Netherlands (the "PURCHASER").
WHEREAS, pursuant to the terms of that certain Stock Purchase Agreement,
dated as of June 22, 1998, by and between the Company and the Purchaser (the
"STOCK PURCHASE AGREEMENT"), the Company agreed to issue and sell to the
Purchaser, and the Purchaser agreed to purchase, an aggregate of 11,594,203
shares (as adjusted pursuant to Section 2.01 of the Stock Purchase Agreement) of
Common Stock, without par value, of the Company; and
WHEREAS, the parties wish to amend the Stock Purchase Agreement to modify
certain provisions;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The definition of "Contribution Agreement" in Section 1.01 of the
Stock Purchase Agreement is hereby amended by deleting the words "dated as of
June 22, 1998" and substituting in lieu thereof the words "dated as of June 22,
1998, as amended from time to time prior to the Closing".
2. EXHIBIT A of the Stock Purchase Agreement is hereby amended by
deleting such EXHIBIT A in its entirety and substituting in lieu thereof EXHIBIT
A to this First Amendment.
3. EXHIBIT D of the Stock Purchase Agreement is hereby amended by
deleting such EXHIBIT D in its entirety and substituting in lieu thereof EXHIBIT
D to this First Amendment.
5. Except as amended hereby, the terms, conditions, covenants,
agreements, representations and warranties contained in the Stock Purchase
Agreement shall remain unaffected hereby and shall continue in full force and
effect.
6. This First Amendment may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
CORNERSTONE PROPERTIES INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID, GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
<PAGE>
Exhibit Q
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,
<PAGE>
the parties desire to amend and restate the Registration Rights Agreement on the
terms set forth herein;
NOW, THEREFORE, the parties agree as follows:
I. 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:
A. "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.
A. "BUSINESS COMBINATION" means any one of the following
transactions:
a) Any merger or consolidation of the Company or any subsidiary
thereof with any other Person (other than the Company);
a) 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;
a) 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
a) 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).
A. "CLOSING DATE" has the meaning specified in Section 2.04 of
the Purchase Agreement.
A. "COMMISSION" shall mean the United States Securities and
Exchange Commission and any successor federal agency having similar powers.
<PAGE>
A. "COMMON STOCK" shall mean the common stock without par value
of the Company.
A. "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.
A. "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.
A. "DEMAND OFFERING" shall mean a offering required to be
effected pursuant to Section 3.3 hereof.
A. "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.
A. "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
<PAGE>
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.
A. "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.
A. "DEMAND OFFERING REQUEST" shall have the meaning set forth
in Section 3.3(a) hereof.
A. "DIHC" shall have the meaning set forth in the Preamble.
A. "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.
A. "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.
A. "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended from time to time.
<PAGE>
A. "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).
A. "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.
A. "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
<PAGE>
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.
A. "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. William
Wilson III, Donald G. Fisher and Randall A. Hack as nominees to the board of
directors pursuant to an agreement dated as of June 22, 1998, as amended.
A. "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.
A. "LEVERAGE RATIO" shall mean the ratio of the Company's
Indebtedness to the Company's Total Market Capitalization.
A. "MAXIMUM NUMBER" shall having the meaning set forth in
Section 3.3(e) hereof.
A. "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).
A. "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.
A. "PGGM" shall have the meaning set forth in the Preamble.
<PAGE>
A. "PIGGYBACK REGISTRATION" shall have the meaning set forth in
Section 3.6(a) hereof.
A. "PIGGYBACK REGISTRATION REQUEST" shall have the meaning set
forth in Section 3.6(a) hereof.
A. "PUBLIC OFFERING" means a public offering of Common Stock
pursuant an effective registration statement under the Securities Act.
A. 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.
A. "SECURITIES ACT" means the Securities Act of 1933, as
amended.
A. "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.
A. "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.
A. "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.
A. "SHELF REGISTRATION" shall mean the registration required to
be effected pursuant to Section 3.1 hereof.
A. "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
<PAGE>
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.
A. "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.
A. "SHELF REGISTRATION NOTICE" shall have the meaning set forth
in Section 3.2(b) hereof.
A. "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.
A. "STANDSTILL PERIOD" means, with respect to any Holder, a
period of time commencing on the Closing Date and terminating on
<PAGE>
October 27, 2000 (the date three years after the Closing Date).
A. "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.
A. "U.S. GAAP" means United States generally accepted
accounting principles and practices in effect from time to time applied
consistently throughout the periods involved.
A. "UNITS" means units of limited partnership in Cornerstone
Properties Limited Partnership, a Delaware limited partnership.
I. RESTRICTIONS ON TRANSFER.
A. 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.
A. 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
<PAGE>
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.
A. 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.
A. 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,
<PAGE>
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.
I. REGISTRATION UNDER SECURITIES ACT.
A. SHELF REGISTRATION.
1. 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.
1. EXPENSES. The Company shall pay all Shelf Registration
Expenses in connection with the registration pursuant to
<PAGE>
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.
A. 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:
1. 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;
1. 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
<PAGE>
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;
1. 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;
1. 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
<PAGE>
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;
1. 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;
1. 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;
1. 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);
1. 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;
1. subject to the last six sentences of Section 3.2(b)
<PAGE>
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;
1. 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;
1. 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
1. 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
<PAGE>
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.
A. DEMAND OFFERINGS.
1. 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:
<PAGE>
a) the Demand Offering Securities which the Company has been so
requested to register by such Demand Initiating Holder;
a) 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
a) 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."
1. 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.
1. 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).
1. SELECTION OF UNDERWRITERS. If the method of
<PAGE>
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.
1. 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 December
16, 1998, by and among the Company and the parties named therein (the "Wilson
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.
1. 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
<PAGE>
can publicly offer and sell the Demand Offering Securities as to which sale has
been requested without registration under the Securities Act.
A. 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:
1. 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.
1. 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;
1. 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
<PAGE>
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;
1. 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;
1. 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);
1. 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;
1. 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;
1. 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;
1. provide a transfer agent and registrar, which may be a
single entity, for all Demand Offering Securities;
1. use its reasonable best efforts to cause all Demand Offering
Securities to be listed on the New York Stock Exchange;
1. furnish on the date that Demand Offering Securities
<PAGE>
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
1. 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
<PAGE>
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.
A. 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.
<PAGE>
A. PIGGYBACK REGISTRATIONS.
1. 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.
1. 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 Wilson 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
<PAGE>
requested to be included in such registration.
1. 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).
A. INDEMNIFICATION.
1. 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
<PAGE>
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.
1. 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.
1. 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
<PAGE>
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.
<PAGE>
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.
A. 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.
I. 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.
I. AMENDMENTS AND WAIVERS. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to
<PAGE>
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.
I. 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.
I. COVENANTS OF THE PARTIES.
A. BOARD OF DIRECTORS.
1. 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").
1. 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:
a) 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").
a) 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
<PAGE>
respective Affiliates and shall be made with the unanimous approval of the
Committee;
a) 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;
a) 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
a) The Company shall not increase the number of directors
constituting the full Board without the unanimous approval of the Committee.
1. 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 One Norwest Center,
Denver, Colorado, adopted at a meeting of the Board on August 13, 1997.
1. 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:
a) 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 Wilson 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
a) PGGM and DIHC shall use commercially reasonable efforts to cause
the PGGM Directors, in considering the nominees proposed by Wilson III (or the
Wilson 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 Wilson
III, and in considering other persons nominated as Wilson Directors, not to
unreasonably withhold their approval.
A. LEVERAGE RATIO. So long as PGGM and DIHC and
<PAGE>
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.
A. 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.
A. 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.
A. 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
<PAGE>
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.
A. 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.
A. 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.
A. 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.
<PAGE>
A. 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 Wilson Directors (as defined in the Amended
Bylaws).
I. 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:
1. 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;
1. directly or indirectly propose to the Company or any Person
a Business Combination;
1. 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
1. 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.
<PAGE>
I. 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.
I. 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 Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning of this Agreement. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
I. 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):
1. IF TO PGGM: Pensioenfonds PGGM
<PAGE>
Kroostweg-Noord 149
3704 DV Zeist
The Netherlands
P. O. Box 117
3700 AC Zeist
The Netherlands
Telecopy: 011 (31.30) 696-3388
Attention: Mr. Jan van der Vlist
Ms. Anneke C. van de Puttelaar
WITH A COPY TO: Richards & O'Neil, LLP
885 Third Avenue
New York, New York 10022-4873
Telecopy: (212) 750-9022
Attention: Robert M. Safron, Esq.
1. IF TO DIHC: 200 Galleria Parkway, NW
Suite 2000
Atlanta, Georgia 30339
Telecopy: (770) 951-9349
Attention: Mr. Craig Johnston
WITH A COPY TO: Richards & O'Neil, LLP
885 Third Avenue
New York, New York 10022-4873
Telecopy: (212) 750-9022
Attention: Robert M. Safron, Esq.
1. IF TO THE COMPANY: 126 East 56th Street
New York, New York 10022
Telecopy: (212) 605-7199
Attention: Mr. John S. Moody
WITH A COPY TO: King & Spalding
191 Peachtree Street, NE
Atlanta, Georgia 30303
Telecopy: (404) 572-5148
Attention: William B. Fryer, Esq.
1. If to any other Holder to the address set forth in the notice
referred to in Section 9 hereof.
I. REMEDY. In the event that the Company materially
<PAGE>
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.
I. THIRD PARTY BENEFICIARY. The parties to this Agreement agree and
acknowledge that Wilson III or the Wilson Designee are intended beneficiaries of
the provisions of Sections 7.1(d) and 7.9 of this Agreement, and Wilson III and
the Wilson Designee shall have the rights of intended beneficiaries to enforce
such provisions.
<PAGE>
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:
-------------------------------------
Name:
Title:
DUTCH INSTITUTIONAL HOLDING
COMPANY, INC.
By:
-------------------------------------
Name:
Title:
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID, GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
[Signature Page to Amended and Restated Registration Rights and Voting
Agreement]
<PAGE>
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.
<PAGE>
Exhibit R
AMENDED AND RESTATED BYLAWS
OF
CORNERSTONE PROPERTIES INC.
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
CORNERSTONE PROPERTIES INC.
ADOPTED: DECEMBER 16, 1998
ARTICLE I
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of
Cornerstone Properties Inc. (the "CORPORATION") in the State of Nevada shall be
at the principal office of The Corporation Trust Company of Nevada in the City
of Reno, County of Washoe, and the registered agent in charge thereof shall be
The Corporation Trust Company of Nevada.
SECTION 1.02. OTHER OFFICES. The Corporation may also have an office
or offices at any other place or places within or without the State of Nevada as
the Board of Directors of the Corporation (the "BOARD") may from time to time
determine or the business of the Corporation may from time to time require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. ANNUAL MEETINGS. The annual meeting of stockholders of
the Corporation for the election of directors of the Corporation ("DIRECTORS"),
and for the transaction of such other business as may properly come before such
meeting, shall be held at such place, date and time as shall be fixed by the
Board and designated in the notice or waiver of notice of such annual meeting;
PROVIDED, HOWEVER, that no annual meeting of stockholders need be held if all
actions, including the election of Directors, required by the General
Corporation Law of the State of Nevada (the "GENERAL CORPORATION LAW") to be
taken at such annual meeting are taken by written consent in lieu of meeting
pursuant to Section 2.09 hereof.
SECTION 2.02. SPECIAL MEETINGS. Special meetings of stockholders for
any purpose or purposes may be called by the Board or the Chairman of the Board,
the President or the Secretary of the Corporation or by the recordholders of at
least a majority of the shares of common stock of the Corporation issued and
outstanding ("SHARES") and entitled to vote thereat, to be held at such place,
date and time as shall be designated in the notice or waiver of notice thereof.
<PAGE>
SECTION 2.03. NOTICE OF MEETINGS. (a) Except as otherwise provided
by law, written notice of each annual or special meeting of stockholders stating
the purpose, place, date and time of such meeting shall be given personally or
by first-class mail to each recordholder of Shares (a "STOCKHOLDER") entitled to
vote thereat, not less than 10 nor more than 60 days before the date of such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the mail, postage prepaid, directed to the Stockholder at such Stockholder's
address as it appears on the records of the Corporation. If, prior to the time
of mailing, the Secretary of the Corporation (the "SECRETARY") shall have
received from any Stockholder a written request that notices intended for such
Stockholder are to be mailed to some address other than the address that appears
on the records of the Corporation, notices intended for such Stockholder shall
be mailed to the address designated in such request.
(b) Notice of a special meeting of Stockholders may be given by the
person or persons calling the meeting, or, upon the written request of such
person or persons, such notice shall be given by the Secretary on behalf of such
person or persons. If the person or persons calling a special meeting of
Stockholders give notice thereof, such person or persons shall deliver a copy of
such notice to the Secretary. Each request to the Secretary for the giving of
notice of a special meeting of Stockholders shall state the purpose or purposes
of such meeting.
SECTION 2.04. WAIVER OF NOTICE. Notice of any annual or special
meeting of Stockholders need not be given to any Stockholder who files a written
waiver of notice with the Secretary, signed by the person entitled to notice,
whether before or after such meeting. Neither the business to be transacted at,
nor the purpose of, any meeting of Stockholders need be specified in any written
waiver of notice thereof. Attendance of a Stockholder at a meeting, in person
or by proxy, shall constitute a waiver of notice of such meeting, except when
such Stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the grounds that
the notice of such meeting was inadequate or improperly given.
SECTION 2.05. ADJOURNMENTS. Whenever a meeting of Stockholders,
annual or special, is adjourned to another date, time or place, notice need not
be given of the adjourned meeting if the date, time and place thereof are
announced at the meeting at which the adjournment is taken. If the adjournment
is for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each Stockholder entitled to vote thereat. At the adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
SECTION 2.06. QUORUM. Except as otherwise provided by law or the
Articles of Incorporation of the Corporation (the "ARTICLES OF INCORPORATION"),
the recordholders of 20% of the Shares entitled to vote thereat, present in
person or by proxy, shall constitute a quorum for the transaction of business at
all meetings of Stockholders, whether annual or special. If, however, such
quorum shall not be present in person or by proxy at any meeting of
Stockholders, the Stockholders entitled to vote
<PAGE>
thereat may adjourn the meeting from time to time in accordance with
Section 2.05 hereof until a quorum shall be present in person or by proxy.
SECTION 2.07. VOTING. Each Stockholder shall be entitled to one vote
for each Share held of record by such Stockholder. Except as otherwise provided
by law, the Articles of Incorporation or these Bylaws, when a quorum is present
at any meeting of Stockholders, the vote of the recordholders of a majority of
the Shares constituting such quorum shall decide any question brought before
such meeting.
SECTION 2.08. PROXIES. Each Stockholder entitled to vote at a
meeting of Stockholders or to express, in writing, consent to or dissent from
any action of Stockholders without a meeting may authorize another person or
persons to act for such Stockholder by proxy. Such proxy shall be filed with
the Secretary before such meeting of Stockholders or such action of Stockholders
without a meeting, at such time as the Board may require. No proxy shall be
voted or acted upon more than six months from its date, unless the proxy
provides for a longer period, which may not exceed seven years.
SECTION 2.09. STOCKHOLDERS' CONSENT IN LIEU OF MEETING. Any action
required by the General Corporation Law to be taken at any annual or special
meeting of Stockholders, and any action which may be taken at any annual or
special meeting of Stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the recordholders of a majority of the Shares, except
that if a different number of votes is required to authorize or take such action
at a meeting, then that proportion of written consents is required.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by the Board, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law, the
Articles of Incorporation or these Bylaws directed or required to be exercised
or done by Stockholders.
SECTION 3.02. NUMBER AND TERM OF OFFICE. The number of Directors
shall be not less than three nor more than eighteen. As of the date of the
adoption of these Bylaws, the number of Directors constituting the Board shall
be fourteen. The number of Directors constituting the Board may be increased or
decreased by a resolution adopted by a majority of the entire Board; provided,
however, that during the "Wilson Period" (as defined herein) and during the
"PGGM Period" (as defined herein), such resolution shall also have been adopted
by a unanimous vote of the Board Affairs Committee of the Board. Directors need
not be Stockholders. Directors shall be elected at the annual meeting of
Stockholders or, if, in accordance with Section 2.01 hereof, no
<PAGE>
such annual meeting is held, by written consent in lieu of meeting pursuant to
Section 2.09 hereof, and each Director shall hold office until his successor is
elected and qualified, or until his earlier death or resignation or removal in
the manner hereinafter provided. The "WILSON PERIOD" shall mean the period from
the date of adoption of these Bylaws until and including the third anniversary
of that date. "PGGM" shall mean Stichting Pensioenfonds Voor de Gezondheid,
Geestelijke en Maatschappelijke Belangen. "DIHC" shall mean Dutch Institutional
Holding Company, Inc., a Delaware corporation. "AFFILIATE" shall mean, with
respect to any specified individual, partnership, firm, corporation, trust,
association, 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 Securities Exchange Act of 1934, as amended ("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. The
"PGGM PERIOD" shall mean the period that ends on the earlier of (i) the date on
which PGGM and DIHC and their respective Affiliates own in the aggregate less
than 25% of the Shares or (ii) October 31, 2002.
SECTION 3.03. MEMBERS OF THE BOARD. (a) Subject to the provisions of
Section 3.09 hereof, during the Wilson Period the Board shall nominate for
election to the Board at any special or annual 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), or appointed
in accordance with Section 3.07 of these Bylaws, William Wilson III ("WILSON
III") and two other individuals designated by Wilson III from time to time
(together with Wilson III, collectively, the "WILSON DIRECTORS") provided that
at least one Wilson Director must (i) satisfy the criteria for independent
directors described in the New York Stock Exchange, Inc. Listed Company Manual
and (ii) satisfy the criteria for non-employee directors described in Rule
16b-3(b)(3)(i) promulgated under the Securities Exchange Act of 1934, as amended
(each Director satisfying such criteria hereinafter referred to as
"INDEPENDENT"), and further provided that upon the death or incapacity of Wilson
III, his designee, who shall initially be Patricia W. Wilson, or such other
person as is designated from time to time by Wilson III (the "WILSON DESIGNEE"),
shall have the right to designate an individual to be nominated by the Board to
replace Wilson III as a Director, which individual shall have the right to
designate the other individuals to be nominated as Wilson Directors. In the
event that the Wilson Designee is not able, for whatever reason, to designate an
individual to be nominated to replace Wilson III as a Director, that designation
shall be made by the remaining Wilson Directors acting unanimously.
(b) So long as PGGM and DIHC and their respective Affiliates own in
the aggregate 5% or more of the Shares, the Board shall nominate for election to
the Board at any special or annual 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), or appointed in
accordance with Section 3.07 of these Bylaws, two individuals designated by PGGM
("PGGM DIRECTORS").
(c) During the PGGM Period, no nominee for election as a Director of
the Corporation shall be a person affiliated with PGGM or DIHC or any of their
respective
<PAGE>
Affiliates, other than two PGGM Directors.
(d) Until both the Wilson Period and the PGGM Period have expired,
all nominees for election as Directors of the Corporation by the Board (other
than PGGM Directors who are employees, officers or directors of PGGM or DIHC,
Wilson III and Incumbent Directors (defined below)) must be approved by the
unanimous vote of the members of the Board Affairs Committee. "INCUMBENT
DIRECTOR" shall mean (i) all of the individuals constituting the Board of
Directors of the Corporation on the date hereof, (ii) all individuals hereafter
designated as nominees to the Board 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 by Hexalon Real
Estate, Inc. pursuant to a letter agreement dated November 7, 1996, and (iv) one
individual at any time hereafter designated as a nominee to the Board by
Deutsche Bank AG.
SECTION 3.04. THE CHAIRMAN OF THE BOARD. The Board may select a
Chairman of the Board of the Corporation (the "CHAIRMAN") who shall have the
power to call special meetings of Stockholders, to call special meetings of the
Board and, if present, to preside at all meetings of Stockholders and all
meetings of the Board. The Chairman shall perform all duties incident to the
office of Chairman of the Board and all such other duties as may from time to
time be assigned to him by the Board or these Bylaws. The provisions of Section
4.03 hereof shall apply to the Chairman. Notwithstanding the foregoing, during
the Wilson Period, Wilson III shall be the Chairman, provided, however that a
majority of the Board may remove Wilson III as Chairman if (i) Wilson III is
convicted of, pleads guilty to or confesses to any felony or any act of fraud,
misappropriation or embezzlement or (ii) a majority of the members of the Board
Affairs Committee determines that Wilson III has engaged in a fraudulent or
dishonest act or has been grossly negligent in carrying out his duties as a
Director or Chairman of the Board, in each case to the material damage or
prejudice of the Corporation or an Affiliate of the Corporation, or in conduct
or activities materially damaging to the property, business or reputation of the
Corporation or an Affiliate of the Corporation.
SECTION 3.05. RESIGNATION. Any Director may resign at any time by
giving written notice to the Board, the Chairman or the Secretary. Such
resignation shall take effect at the time specified in such notice or, if the
time be not specified, upon receipt thereof by the Board, the Chairman or the
Secretary, as the case may be. Unless otherwise specified therein, acceptance
of such resignation shall not be necessary to make it effective.
SECTION 3.06. REMOVAL. Any or all of the Directors may be removed,
with or without cause, at any time by vote of the recordholders of two-thirds of
the Shares then entitled to vote at an election of Directors, or by written
consent of the recordholders of Shares pursuant to Section 2.09 hereof.
SECTION 3.07. VACANCIES. Vacancies occurring on the Board for any
reason, including, without limitation, vacancies occurring as a result of the
creation of new directorships that increase the number of Directors or removal
in accordance with
<PAGE>
Section 3.06 of these Bylaws, may be filled by vote of the recordholders of a
majority of the Shares then entitled to vote at an election of Directors, or by
written consent of such recordholders pursuant to Section 2.09 hereof or by vote
of the Board or by written consent of the Directors pursuant to Section 3.10
hereof. If the number of Directors then in office is less than a quorum, such
vacancies may be filled by vote of a majority of the Directors then in office or
by written consent of all such Directors pursuant to Section 3.10 hereof. In
keeping with the provisions of Section 4(f) of the Registration Rights and
Lock-up Agreement dated as of December 16, 1998, by and among the Corporation
and the persons listed therein, and Section 7.1 of the Amended and Restated
Registration Rights and Voting Agreement by and among the Corporation, PGGM and
DIHC, if a vacancy of the Board is caused by the vacancy of a Wilson Director
during the Wilson Period or a PGGM Director during the period in which PGGM
shall have the right to designate two nominees for Director pursuant to Section
3.03(b) of these Bylaws, the Board shall fill such vacancy by appointing another
Wilson Director or PGGM Director, as the case may be. Unless earlier removed
pursuant to Section 3.06 hereof, each Director chosen in accordance with this
Section 3.07 shall hold office until the next annual election of Directors by
the Stockholders and until his successor shall be elected and qualified.
SECTION 3.08. MEETINGS. (a) ANNUAL MEETINGS. As soon as
practicable after each annual election of Directors by the Stockholders, the
Board shall meet for the purpose of organization and the transaction of other
business, unless it shall have transacted all such business by written consent
pursuant to Section 3.10 hereof.
(b) OTHER MEETINGS. Other meetings of the Board shall be held at
such times as the Chairman, the President, the Secretary or a majority of the
Board shall from time to time determine.
(c) NOTICE OF MEETINGS. The Secretary shall give written notice to
each Director of each meeting of the Board, which notice shall state the place,
date, time and purpose of such meeting. Notice of each such meeting shall be
given to each Director, if by mail, addressed to him at his residence or usual
place of business, at least two days before the day on which such meeting is to
be held, or shall be sent to him at such place by telecopy, telegraph, cable, or
other form of recorded communication, or be delivered personally or by telephone
not later than the day before the day on which such meeting is to be held. A
written waiver of notice, signed by the Director entitled to notice, whether
before or after the time of the meeting referred to in such waiver, shall be
deemed equivalent to notice. Neither the business to be transacted at, nor the
purpose of any meeting of the Board need be specified in any written waiver of
notice thereof. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except as provided by law.
(d) PLACE OF MEETINGS. The Board may hold its meetings at such place
or places within or without the State of Nevada as the Board or the Chairman may
from time to time determine, or as shall be designated in the respective notices
or waivers of notice of such meetings.
<PAGE>
(e) QUORUM AND MANNER OF ACTING. A majority of the total number of
Directors then in office shall be present in person at any meeting of the Board
in order to constitute a quorum for the transaction of business at such meeting,
and the vote of a majority of those Directors present at any such meeting at
which a quorum is present shall be necessary for the passage of any resolution
or act of the Board, except as otherwise expressly required by law, the Articles
of Incorporation or these Bylaws. In the absence of a quorum for any such
meeting, a majority of the Directors present thereat may adjourn such meeting
from time to time until a quorum shall be present.
(f) ORGANIZATION. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside, in the following order of
precedence:
(i) the Chairman;
(ii) the President;
(iii) any Director chosen by a majority of the Directors
present.
The Secretary or, in the case of his absence, any person (who shall be an
Assistant Secretary, if an Assistant Secretary is present) whom the chairman of
the meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 3.09. COMMITTEES OF THE BOARD. (a) Subject to the other
provisions of this Section 3.09, the Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more Directors. The Board may designate one or more Directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another Director to act at the
meeting in the place of any such absent or disqualified member. Any committee
of the Board, to the extent provided in the resolution of the Board designating
such committee, shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it. Each committee of the Board shall keep regular minutes of its
proceedings and report the same to the Board when so requested by the Board.
(b) During the PGGM Period, the members of each committee of the
Board, except the Audit and Compensation Committees, shall include at least one
PGGM Director (if any are members of the Board).
(c) During the Wilson Period, the members of each committee of the
Board shall include one Wilson Director (if any are members of the Board),
provided that any Wilson Director appointed to serve on the Board's Audit or
Compensation Committees shall be Independent.
<PAGE>
(d) While Wilson III is a Director, he shall be the Wilson Director
that is a member of the Board Affairs Committee during the Wilson Period.
(e) By resolution dated December 6, 1996, the Board established the
Board Affairs Committee. The duties and responsibilities of the Board Affairs
Committee, as set forth in such resolution, shall not be amended without the
approval of a majority of the members of the entire Board; provided that until
the expiration of the PGGM Period and the Wilson Period, such amendment must
also be approved by the unanimous vote of the members of the Board Affairs
Committee.
(f) Notwithstanding any other provision of this Section 3.09, during
the PGGM Period, no fewer than half of the members of the Investment Committee
shall be individuals that are not employees of the Corporation.
SECTION 3.10. DIRECTORS' CONSENT IN LIEU OF MEETING. Any action
required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by all the members of the Board or such committee and such
consent is filed with the minutes of the proceedings of the Board or such
committee.
SECTION 3.11. ACTION BY MEANS OF TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT. Any one or more members of the Board, or of any committee thereof,
may participate in a meeting of the Board or such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
SECTION 3.12. COMPENSATION. Unless otherwise restricted by the
Articles of Incorporation, the Board may determine the compensation of
Directors. In addition, as determined by the Board, Directors may be reimbursed
by the Corporation for their expenses, if any, in the performance of their
duties as Directors. No such compensation or reimbursement shall preclude any
Director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
OFFICERS
SECTION 4.01. OFFICERS. The officers of the Corporation shall be the
President, the Secretary and a Treasurer and may include one or more Vice
Presidents (one or more of whom may be designated an Executive Vice President
and one or more of whom may be designated a Senior Vice President) and one or
more Assistant Secretaries and one or more Assistant Treasurers. Any two or
more offices may be held by the same person.
<PAGE>
SECTION 4.02. AUTHORITY AND DUTIES. All officers shall have such
authority and perform such duties in the management of the Corporation as may be
provided in these Bylaws or, to the extent not so provided, by resolution of the
Board.
SECTION 4.03. TERM OF OFFICE, RESIGNATION AND REMOVAL. (a) Each
officer shall be appointed by the Board and shall hold office for such term as
may be determined by the Board. Each officer shall hold office until his
successor has been appointed and qualified or his earlier death or resignation
or removal in the manner hereinafter provided.
(b) Any officer may resign at any time by giving written notice to
the Board, the Chairman, the President or the Secretary. Such resignation shall
take effect at the time specified in such notice or, if the time be not
specified, upon receipt thereof by the Board, the Chairman, the President or the
Secretary, as the case may be. Unless otherwise specified therein, acceptance
of such resignation shall not be necessary to make it effective.
(c) All officers and agents appointed by the Board shall be subject
to removal, with or without cause, at any time by the Board or by the action of
the recordholders of a majority of the Shares entitled to vote thereon.
SECTION 4.04. VACANCIES. Any vacancy occurring in any office of the
Corporation, for any reason, shall be filled by action of the Board. Unless
earlier removed pursuant to Section 4.03 hereof, any officer appointed by the
Board to fill any such vacancy shall serve only until such time as the unexpired
term of his predecessor expires unless reappointed by the Board.
SECTION 4.05. THE PRESIDENT. The President shall be the chief
executive officer of the Corporation and shall have general and active
management and control of the business and affairs of the Corporation, subject
to the control of the Board, and shall see that all orders and resolutions of
the Board are carried into effect. The President shall perform all duties
incident to the office of President and all such other duties as may from time
to time be assigned to him by the Board or these Bylaws.
SECTION 4.06. VICE PRESIDENTS. Vice Presidents, if any, in order of
their seniority or in any other order determined by the Board, shall generally
assist the President and perform such other duties as the Board or the President
shall prescribe, and in the absence or disability of the President, shall
perform the duties and exercise the powers of the President.
SECTION 4.07. THE SECRETARY. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of Stockholders
and shall record all votes and the minutes of all proceedings in a book to be
kept for that purpose, and shall perform the same duties for any committee of
the Board when so requested by such committee. He shall give or cause to be
given notice of all meetings of Stockholders and of the Board, shall perform
such other duties as may be prescribed by the Board or the President and shall
act under the supervision of the President. He shall keep in safe
<PAGE>
custody the seal of the Corporation and affix the same to any instrument that
requires that the seal be affixed to it and which shall have been duly
authorized for signature in the name of the Corporation and, when so affixed,
the seal shall be attested by his signature or by the signature of the Treasurer
of the Corporation or an Assistant Secretary or Assistant Treasurer of the
Corporation. He shall keep in safe custody the certificate books and
stockholder records and such other books and records of the Corporation as the
Board or the President may direct and shall perform all other duties incident to
the office of Secretary and such other duties as from time to time may be
assigned to him by the Board or the President.
SECTION 4.08. ASSISTANT SECRETARIES. Assistant Secretaries of the
Corporation, if any, in order of their seniority or in any other order
determined by the Board, shall generally assist the Secretary and perform such
other duties as the Board or the Secretary shall prescribe, and, in the absence
or disability of the Secretary, shall perform the duties and exercise the powers
of the Secretary.
SECTION 4.09. THE TREASURER. The Treasurer shall have the care and
custody of all the funds of the Corporation and shall deposit such funds in such
banks or other depositories as the Board, or any officer or officers, or any
officer and agent jointly, duly authorized by the Board, shall, from time to
time, direct or approve. He shall disburse the funds of the Corporation under
the direction of the Board and the President. He shall keep a full and accurate
account of all moneys received and paid on account of the Corporation and shall
render a statement of his accounts whenever the Board or the President shall so
request. He shall perform all other necessary actions and duties in connection
with the administration of the financial affairs of the Corporation and shall
generally perform all the duties usually appertaining to the office of
Treasurer. When required by the Board, he shall give bonds for the faithful
discharge of his duties in such sums and with such sureties as the Board shall
approve.
SECTION 4.10. ASSISTANT TREASURERS. Assistant Treasurers of the
Corporation, if any, in order of their seniority or in any other order
determined by the Board, shall generally assist the Treasurer and perform such
other duties as the Board or the Treasurer shall prescribe, and, in the absence
or disability of the Treasurer, shall perform the duties and exercise the powers
of the Treasurer.
SECTION 4.11. THE CONTROLLER. The Controller shall keep complete and
accurate books of account relating to the business of the Corporation, including
records of all assets, liabilities, commitments, receipts, disbursements and
other financial transactions of the Corporation and its subsidiaries. He shall
render a statement of the Corporation's financial condition whenever required to
do so by the Board or the President and shall generally perform all the duties
usually appertaining to the office of Controller.
<PAGE>
ARTICLE V
CHECKS, DRAFTS, NOTES, AND PROXIES
SECTION 5.01. CHECKS, DRAFTS AND NOTES. All checks, drafts and other
orders for the payment of money, notes and other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as shall be
determined, from time to time, by resolution of the Board.
SECTION 5.02. EXECUTION OF PROXIES. The President, or, in his
absence, any Vice President, may authorize, from time to time, the execution and
issuance of proxies to vote shares of stock or other securities of other
corporations held of record by the Corporation and the execution of consents to
action taken or to be taken by any such corporation. All such proxies and
consents, unless otherwise authorized by the Board, shall be signed in the name
of the Corporation by the President or any Vice President.
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
SECTION 6.01. CERTIFICATES EVIDENCING SHARES. Shares shall be
evidenced by certificates in such form or forms as shall be approved by the
Board or they may be uncertificated. Certificates shall be issued in
consecutive order and shall be numbered in the order of their issue, and shall
be signed by the President or any Vice President and by the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer. If such a
certificate is manually signed by a transfer agent or registrar, any other
signature on the certificate may be a facsimile. In the event any such officer
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to hold such office or to be employed by the Corporation
before such certificate is delivered, such certificate may be issued and
delivered by the Corporation with the same effect as if such officer had held
such office on the date of delivery.
SECTION 6.02. STOCK LEDGER. A stock ledger in one or more
counterparts shall be kept by the Secretary, in which shall be recorded the name
and address of each person, firm or corporation owning the Shares evidenced by
each certificate evidencing Shares issued by the Corporation, the number of
Shares evidenced by each such certificate, the date of issuance thereof and, in
the case of cancellation, the date of cancellation. Except as otherwise
expressly required by law, the person in whose name Shares stand on the stock
ledger of the Corporation shall be deemed the owner and recordholder thereof for
all purposes.
SECTION 6.03. TRANSFERS OF SHARES. Registration of transfers of
Shares shall be made only in the stock ledger of the Corporation upon request of
the registered holder of such Shares, or of his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, and upon the
surrender of the certificate or
<PAGE>
certificates evidencing such Shares properly endorsed or accompanied by a stock
power duly executed, together with such proof of the authenticity of signatures
as the Corporation may reasonably require.
SECTION 6.04. ADDRESSES OF STOCKHOLDERS. Each Stockholder shall
designate to the Secretary an address at which notices of meetings and all other
corporate notices may be served or mailed to such Stockholder, and, if any
Stockholder shall fail to so designate such an address, corporate notices may be
served upon such Stockholder by mail directed to the mailing address, if any, as
the same appears in the stock ledger of the Corporation or at the last known
mailing address of such Stockholder.
SECTION 6.05. LOST, DESTROYED AND MUTILATED CERTIFICATES. Each
recordholder of Shares shall promptly notify the Corporation of any loss,
destruction or mutilation of any certificate or certificates evidencing any
Share or Shares of which he is the recordholder. The Board may, in its
discretion, cause the Corporation to issue a new certificate in place of any
certificate theretofore issued by it and alleged to have been mutilated, lost,
stolen or destroyed, upon the surrender of the mutilated certificate or, in the
case of loss, theft or destruction of the certificate, upon satisfactory proof
of such loss, theft or destruction, and the Board may, in its discretion,
require the recordholder of the Shares evidenced by the lost, stolen or
destroyed certificate or his legal representative to give the Corporation a bond
sufficient to indemnify the Corporation against any claim made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
SECTION 6.06. REGULATIONS. The Board may make such other rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates evidencing
Shares.
SECTION 6.07. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. In order that the Corporation may determine the Stockholders entitled
to notice of or to vote at any meeting of Stockholders or any adjournment
thereof, or to express consent to, or to dissent from, corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix, in advance, a record
date, which shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other such action. A
determination of the Stockholders entitled to notice of or to vote at a meeting
of Stockholders shall apply to any adjournment of such meeting; PROVIDED,
HOWEVER, that the Board may fix a new record date for the adjourned meeting.
<PAGE>
ARTICLE VII
SEAL
SECTION 7.01. SEAL. The Board may approve and adopt a corporate
seal, which shall be in the form of a circle and shall bear the full name of the
Corporation, the year of its incorporation and the words "Corporate Seal
Nevada".
ARTICLE VIII
FISCAL YEAR
SECTION 8.01. FISCAL YEAR. The fiscal year of the Corporation shall
end on the thirty-first day of December of each year unless changed by
resolution of the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
SECTION 9.01. INDEMNIFICATION. (a) The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
<PAGE>
(including amounts paid in settlement and attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the Corporation and except
that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
Corporation or for amounts paid in settlement to the Corporation, unless and
only to the extent that the court in which such action or suit was brought or
other court of competent jurisdiction shall determine upon application that, in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses or amounts as the court shall deem
proper.
(c) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 9.01(a) and (b) of these
Bylaws, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under Section 9.01(a) and (b) of these Bylaws
(unless ordered by a court or advanced pursuant to Section 9.01(e)) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances. Such determination shall be made (i) by the
Board by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
Stockholders of the Corporation.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Corporation as they are incurred
and in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation pursuant to this Article IX. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article IX shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
lawfully be entitled under any law, bylaw, agreement, vote of Stockholders or
disinterested directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office.
(g) For purposes of this Article IX, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including
<PAGE>
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents so that any person who is
or was a director, officer, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under the
provisions of this Article IX with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(h) For purposes of this Article IX, references to "other enterprise"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves service by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article IX.
(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article IX shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
SECTION 9.02. INSURANCE FOR INDEMNIFICATION. The Corporation may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and liability and expenses incurred
by him in any such capacity, or arising out of his status as such, whether or
not the Corporation would have the power to indemnify him against such liability
under the provisions of Section 751 of the General Corporation Law.
ARTICLE X
AMENDMENTS
SECTION 10.01. AMENDMENTS. (a) Any Bylaw may be adopted, amended or
repealed by the vote of the recordholders of a majority of the Shares then
entitled to vote at an election of Directors or by written consent of
Stockholders pursuant to Section 2.09 hereof, or by vote of the Board or by
written consent of Directors pursuant to Section 3.10 hereof.
(b) Notwithstanding the provisions of Subsection 10.01(a), during the
<PAGE>
Wilson Period, any amendment by the Board of this Subsection 10.01(b) or of
Sections 3.02, 3.03, 3.04, 3.07 or 3.09, shall require the affirmative vote a
majority of the members of the entire Board and the unanimous approval of the
members of the Board Affairs Committee.
(c) Notwithstanding the provisions of Subsection 10.01(a): (i) during
the PGGM Period, any amendment by the Board of this Subsection 10.01(c)(i) or of
Sections 3.02, 3.03, 3.07 or 3.09, shall require the affirmative vote a majority
of the members of the entire Board and the unanimous approval of the members of
the Board Affairs Committee, and (ii) so long as PGGM and DIHC and their
respective Affiliates own in the aggregate 5% or more of the issued and
outstanding Shares, any amendment by the Board of Subsection 3.03(b) hereof and
this Subsection 10.01(c), shall require the affirmative vote of a majority of
the members of the entire Board and the unanimous approval of the members of the
Board Affairs Committee.
<PAGE>
Exhibit S
JOINT FILING AGREEMENT BETWEEN
STICHTING PENSIOENFONDS VOOR DE GEZONDHEID
GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN
AND
DUTCH INSTITUTIONAL HOLDING COMPANY, INC.
Agreement, dated as of December 31, 1998 by and between Stichting
Pensioenfonds voor de Gezondheid Geestelijke en Maatschappelijke Belangen
("PGGM") and Dutch Institutional Holding Company, Inc. ("DIHC").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in accordance with Rule 13d-1(f) under the Securities and
Exchange Act of 1934 (the "ACT"), only one Statement and any amendments thereto
need to filed whenever two or more persons are required to file such a Statement
or any amendments thereto pursuant to Section 13(d) of the Act with respect to
the same securities, provided that said persons agree in writing that such
Statement or any amendment thereto is filed on behalf of them.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
PGGM and DIHC do hereby agree, in accordance with Rule 13d-1(f) under
the Act, to file an Amendment No. 3 to a Schedule 13D and any subsequent
amendments thereto relating to their beneficial ownership of the Common Stock of
Cornerstone Properties Inc., and do hereby further agree that said Amendment
No. 3 to a Schedule 13D and all said subsequent amendments shall be filed on
behalf of each of them.
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
DUTCH INSTITUTIONAL HOLDING
COMPANY, INC.
By
--------------------------------
Name:
Title:
