UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
EQUITY OFFICE PROPERTIES TRUST
(Name of issuer as specified in its Charter)
Common Shares of Beneficial Interest, Par Value $0.01 Per Share
(Title of class of securities)
294741103
(CUSIP Number)
Cornelius J. Dwyer, Jr.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telephone: (212) 848-7019
(Name, address and telephone number of person
authorized to receive notices and communications)
October 20, 1997
(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
statement because of Rule 13d-1(b)(3) or (4), check the following |_|.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
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1 NAME OF REPORTING PERSON
Stichting Pensioenfonds ABP
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS* 00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION The Kingdom of the Netherlands
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NUMBER OF 7 SOLE VOTING POWER -- 12,331,992
SHARES
BENEFICIALLY --------------------------------------------
8 SHARED VOTING POWER --
OWNED BY
---------------------------------------------
9 SOLE DISPOSITIVE POWER -- 12,280,192
EACH
REPORTING
--------------------------------------------
10 SHARED DISPOSITIVE POWER -- 51,800
PERSON
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,331,992
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON* EP
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Item 1. Security and Issuer.
This statement relates to common shares of beneficial interest, par
value $0.01 per share (the "Common Shares"), of Equity Office Properties Trust
(the "Issuer"). The Issuer is a real estate investment trust, formed in Maryland
and has its principal executive offices located at Two North Riverside Plaza,
Suite 2200, Chicago, IL, 60606.
Item 2. Identity and Background.
This statement is filed by Stichting Pensioenfonds ABP, an entity
established under the laws of The Kingdom of the Netherlands (the "Fund"), whose
principal business is investing funds held on behalf of public sector employees
of The Kingdom of the Netherlands. The address of the Fund's principal executive
office is Oude Lindestraat 70; postbus 2889, 6401 DL Heerlen, The Netherlands.
The name, principal occupation, citizenship and business address of each
director and of each executive officer of the Fund are as follows:
<TABLE>
<CAPTION>
PRINCIPAL
NAME OCCUPATION CITIZENSHIP BUSINESS ADDRESS
<S> <C> <C> <C>
J. Kleiterp Executive Chairman The Netherlands Bestuur Abp
of the Board of P.O. Box 30909
Trustees of the Fund 2500 GX DEN HAAG
H.J. Albersen Trustee of the Fund The Netherlands CMHF
P.O. Box 80204
2508 AM DEN HAAG
E.J. Anneveld Trustee of the Fund The Netherlands C.F.O.
P.O. Box 84501
2508 AM DEN HAAG
W. Drees Trustee of the Fund The Netherlands Wieringenmeen 36
3844 NA HARDERWIJK
P.H. Holthuis Trustee of the Fund The Netherlands Ministerie van O&W/ BR/DG
P.O. Box 25000
2700 LZ ZOETERMEER
L. Koopmans Trustee of the Fund The Netherlands Lange Voorhout 86, app. 24
2514 EJ DEN HAAG
R. van Leeuwen Trustee of the Fund The Netherlands ABOP
Herengracht 54
1015 BN AMSTERDAM
</TABLE>
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<TABLE>
<S> <C> <C> <C>
C.L.J. V. Overbeek Trustee of the Fund The Netherlands Katholieke Onderwijs
Vakorganisatie
Verrijn Stuartlaan 36
2280 EL RIJSWIJK
A.C. van Pelt Trustee of the Fund The Netherlands Ned. Gennootschap van
Leraren
P.O. Box 407
3300 AK DORDRECHT
D.M. Sluimers Trustee of the Fund The Netherlands Ministerie van Financien
Casuariestraat 32
2511 VB DEN HAAG
A.F.P.M. Scherf Trustee of the Fund The Netherlands Icaruslaan 20
5631 LD EINDHOVEN
X.J. den Uyl First Deputy Chairman The Netherlands Linnaeuslaan 14
of the Fund 2012 PP HAARLEM
J.W.E. Neervens Executive Chairman of The Netherlands ABP
the Board of Directors Oude Lindestraat 70
of the Fund 6411 EJ HEERLEN
J.F. Maassen Member of the Board of The Netherlands ABP
Directors of the Fund Oude Lindestraat 70
6411 EJ HEERLEN
J.M.G. Frijns Member of the Board of The Netherlands ABP
Directors of the Fund Oude Lindestraat 70
6411 EJ HEERLEN
</TABLE>
During the last five years, neither the Fund nor any of its executive
officers or directors has been (i) convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, United States federal or state securities laws or finding any
violation with respect to such laws.
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Item 3. Source and Amount of Funds or Other Consideration.
On October 20, 1997, the Fund acquired 6,666,667 Common Shares directly
from the Issuer in a private placement transaction at a price of U.S. $30.00 per
Share, raising the number of of Common Shares beneficially owned by the Fund to
12,331,992 (approximately 7.7% of aggregate number of shares outstanding) and
requiring the Fund to file this statement on Schedule 13D.
The funds for the foregoing purchase of shares of Common Stock by the
Fund were supplied from Dutch public sector pensioners' contributions to the
Fund.
Item 4. Purpose of Transaction.
The Fund has acquired the Common Shares for the purpose of making an
investment in the Issuer and not with the present intention of acquiring control
of the Issuer's business.
The Fund from time to time intends to review its investment in the
Issuer on the basis of various factors, including the Issuer's business,
financial condition, results of operations and prospects, general economic and
industry conditions, the securities markets in general and those for the
Issuer's securities in particular, as well as other developments and other
investment opportunities. Based on such review, the Fund will take such actions
in the future as the Fund may deem appropriate in light of the circumstances
existing from time to time. If the Fund believes that further investment in the
Issuer is attractive, whether because of the market price of the Issuer's
securities or otherwise, it may acquire Common Shares or other securities of the
Issuer either in the open market or in privately negotiated transactions.
Similarly, depending on market and other factors, the Fund may determine to
dispose of some or all of the Common Shares currently owned by the Fund or
otherwise acquired by the Fund either in the open market or in privately
negotiated transactions.
Except as set forth above, the Fund has not formulated any plans or
proposals which relate to or would result in: (a) the acquisition by any person
of additional securities of the Issuer or the disposition of securities of the
Issuer, (b) an extraordinary corporate transaction involving the Issuer or any
of its subsidiaries, (c) a sale or transfer of a material amount of the assets
of the Issuer or any of its subsidiaries, (d) any change in the present board of
directors or management of the Issuer, (e) any material change in the Issuer's
capitalization or dividend policy, (f) any other material change in the Issuer's
business or corporate structure, (g) any change in the Issuer's charter or
bylaws or other instrument corresponding thereto or other action which may
impede the acquisition of control of the Issuer by any person, (h) causing a
class of the Issuer's securities to be deregistered or delisted, (i) a class of
equity securities of the Issuer becoming eligible for termination of
registration or (j) any action similar to any of those enumerated above.
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Item 5. Interest in Securities of the Issuer.
(a)-(b) As of the date hereof, the Fund beneficially owns and has the
sole power to vote and dispose of 12,280,192 Common Shares. The Fund
beneficially owns and has shared power to dispose of an additional 51,800 Common
Shares held by the Fund in two securities accounts with ABN AMRO BANK N.V.
managed by ABKB/LaSalle Securities and Cohen & Steers Capital Management,
respectively. Based on information provided by the Issuer to the Fund on October
20, 1997, the Common Shares beneficially owned by the Fund constitute
approximately 7.7% of the outstanding Common Shares. To the knowledge of the
Fund, no Common Shares are beneficially owned by any director or executive
officer listed under Item 2 above.
(c) The Fund has effected the following purchases directly from the
Issuer in a private placement transaction during the past 60 days:
DATE OF NUMBER OF PRICE
PURCHASE SHARES PURCHASED PER SHARE
October 20, 1997 6,666,667 U.S. $30.00
The Fund has effected no open market purchases of Common Shares in the
past 60 days.
(d) To the knowledge of the Fund, no other person has the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, any Common Shares beneficially owned by the Fund.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
The Fund has entered into a Registration Rights Agreement (the
"Registration Rights Agreement") with the Issuer, dated as of October 20, 1997,
pursuant to which the Fund has an option to sell the Common Shares in a public
sale in accordance with the provisions the Registration Rights Agreement and
pursuant to a shelf registration statement or any appropriate form pursuant to
Rule 415 of the Securities Act of 1933, as amended (the "Shelf Registration
Statement"). The Shelf Registration Statement is to be caused to be filed by the
Issuer with the Securities and Exchange Commission within 20 days following the
first anniversary of the effective date of the registration statement on Form
S-11 (No. 333-26629) relating to the initial public offering of the Common
Shares of the Issuer. A copy of the Registration Rights Agreement is filed as
Exhibit 1 to this statement.
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Other than the Registration Rights Agreement, neither the Fund nor any
of its executive officers or directors has any contracts, arrangements or
understandings with any person with respect to any securities of the Issuer.
Item 7. Material to Be Filed as Exhibits.
The Registration Rights Agreement is filed as Exhibit 1 to this
statement.
Signature
After due 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: October 28, 1997 STICHTING PENSIOENFONDS ABP
By s/s J. Mensonides
Name: J. Mensonides
Title: Managing Director
Equity Investments
By s/s P.A.W.M. Spijkers
Name: P.A.W.M. Spijkers
Title: Managing Director
Fixed Income Investments
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Exhibit 1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Dated as of October 20, 1997
by and among
EQUITY OFFICE PROPERTIES TRUST
and
the Persons Listed on
the Signature Pages Hereto
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement") is
made and entered into as of October 20, 1997, by and among EQUITY OFFICE
PROPERTIES TRUST, a Maryland real estate investment trust (the "Company"), and
the persons listed on the signature pages hereto, including their successors,
assigns and transferees (herein referred to collectively as the "Holders" and
individually as a "Holder").
WHEREAS, on the date hereof the Holder expects to become the owner of
Common Shares (as defined below) pursuant to that certain Share Purchase
Agreement between the Company and the Holder dated October 17, 1997 (the
"Purchase Agreement"); and
WHEREAS, as a condition to receiving the consent or agreement of the
Holder to the transactions contemplated by the Purchase Agreement the Company
has agreed to grant the Holder the registration rights provided for in this
Agreement; and
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Affiliate" shall have the meaning set forth for such term in Rule 144
under the Securities Act.
"Closing Price" of the Common Shares for any given day shall mean (i)
if the Common Shares are listed or admitted to trading on a national securities
exchange, the reported last sale price of the Common Shares regular way on such
day or, in case no such sale takes place on such day, the average of the
reported closing bid and asked prices regular way, on such national securities
exchange on such day or (ii) if the Common Shares are not listed or admitted to
trading on any national securities exchange but are traded in the
over-the-counter market, the average of the closing bid and asked prices in the
over-the-counter market on such day.
"Common Shares" shall mean the common shares of beneficial interest,
par value $.01 per share, of the Company.
"Company" shall mean Equity Office Properties Trust, a Maryland real
estate investment trust, and its successors and assigns.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Holder" or "Holders" shall mean the persons listed on the signature
pages hereto (other than the Company), including their successors, assigns and
transferees.
"IPO Registration Statement" shall mean the registration statement on
Form S-11 (No. 333-26629) relating to the initial public offering of the Common
Shares by the Company.
"Operating Partnership" shall mean EOP Operating Limited Partnership, a
Delaware limited partnership, and its successors.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization or other legal entity or a government or agency or
political subdivision thereof.
"Prospectus" shall have the meaning set forth in Section 5(b) hereof.
"Registrable Securities" shall mean the Shares, excluding (i) __ Shares
that have been disposed of pursuant to a 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) Shares that
are held by Holders who are not Affiliates of the Company that are eligible for
sale pursuant to Rule 144(k) under the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all applicable registration and filing fees imposed by the SEC, the New York
Stock Exchange, Inc. or the National Association of Securities Dealers, Inc.
("NASD"), (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 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 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 Registrable Securities on any securities exchange or
exchanges pursuant to Section 4(n) hereof, 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. Registration
Expenses shall specifically exclude underwriting discounts and commissions, the
fees and disbursements of counsel representing a Selling Holder or any
underwriter or agent acting on behalf of a Holder, and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Selling
Holder, all of which shall be borne by such Holder in all cases.
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"Registration Notice" shall have the meaning set forth in Section 4(b)
hereof.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations promulgated thereunder.
"Selling Holder" shall mean any Holder who sells Registrable Securities
pursuant to a public offering registered hereunder.
"Shares" shall mean any Common Shares issued in connection with the
Purchase Agreement to the persons listed on the signature pages hereto and any
additional Common Shares or other securities issued as a dividend, share of
beneficial interest split, distribution or by way of merger, consolidation
reorganization or exchange for, or in respect of such Common Shares prior to the
Selling Holder's exercise of its rights hereunder.
"Shelf Registration" shall mean a registration required to be effected
pursuant to Section 2 hereof.
"Shelf Registration Statement" shall have the meaning set forth in
Section 2(a) hereof.
2. Shelf Registration Under the Securities Act
(a) Filing of Shelf Registration Statement.
Within 20 days following the first anniversary of the effective date of
the IPO Registration Statement, the Company shall cause to be filed a shelf
registration statement, on any appropriate form pursuant to Rule 415 (or similar
rule that may be adopted by the SEC) under the Securities Act, together with all
amendments (including post effective amendments), supplements, exhibits and
documents incorporated by reference therein (the "Shelf Registration Statement")
providing for the sale by the Holders of all of their Registrable Securities in
accordance with the terms hereof and will use its reasonable efforts to cause
such Shelf Registration Statement to be declared effective by the SEC as soon
thereafter as is practicable. The Company agrees to use its reasonable efforts
to keep the Shelf Registration Statement with respect to the Registrable
Securities continuously effective for a period expiring on the earlier of (i)
the date on which all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant thereto and (ii) the date on
which (A) all Shares that such Holders own, held by Holders who are not
Affiliates of the Company, in the opinion of counsel for the Company, which
counsel shall be reasonably acceptable to such Holders, are eligible for sale
pursuant to Rule 144(k) under the Securities Act and (B) all Shares that such
Holders own, held by each Holder who is an Affiliate of the Company, in the
opinion of counsel for the Company, which counsel shall be reasonably acceptable
to such Holder, are eligible for
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sale pursuant to Rule 144 under the Securities Act and could be sold in
one transaction in accordance with the volume limitations contained in
Rule 144(e)(1)(i) under the Securities Act. The Company further agrees to amend
the Shelf Registration Statement 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 or to the extent reasonably necessary to amend, complete,
modify or supplement information relating to the Selling Holders, the
underwriters or the plan of distribution set forth in the Shelf Registration
Statement; provided, however, that subject to Sections 4(b) and 4(k), the
Company shall not be deemed to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the applicable period if it
voluntarily takes any action that would result in Selling Holders not being able
to sell 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 registration statement and the SEC has not
declared it effective. The Company's obligation under this Section 2(a) shall be
performed in accordance with the provisions set forth in Section 4 hereof and
the Company shall not be required to take any of the actions described in this
Section 2(a) to the extent of the occurrence of any event contemplated by clause
(x) of Section 4(b) hereof for a period not to exceed thirty (30) days from the
date the Company notifies Holders of such event.
(b) Expenses.
The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a).
(c) Inclusion in Shelf Registration Statement.
Any Holder who does not provide the information reasonably requested by
the Company in connection with the Shelf Registration Statement as promptly as
practicable after receipt of such request, but in no event later than ten (10)
days thereafter, shall not be entitled to have its Registrable Securities
included in the Shelf Registration Statement.
3. Holdback Agreement.
Each Holder, in the event the Company is issuing shares of beneficial
interest to the public in an underwritten offering, agrees, if requested by the
managing underwriter or underwriters for such underwritten offering, not to
effect any public sale or distribution of Registrable Securities or any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 (or any similar provision then
in force) under the Securities Act, during the fourteen (14) days prior to, and
during the 180-day period beginning on, the effective date of such underwritten
offering (except as part of such underwritten offering).
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4. Registration Procedures.
In connection with the obligations of the Company with respect to a
registration contemplated by Section 2 hereof, the Company shall:
(a) prepare and file with the SEC a registration statement within
20 days following the first anniversary of the effective date of the IPO
registration statement pursuant to Section 2, which registration statement, in
each case, shall (i) be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution by the Selling
Holders thereof and (ii) comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith;
(b) subject to the last three sentences of this Section 4(b), (i)
prepare and file with the SEC such amendments and post-effective amendments to
such registration statement as may be necessary to keep such registration
statement effective for the applicable period; (ii) cause the prospectus which
is part of such registration statement (a "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; (iii) respond as promptly as
practicable to any comments received from the SEC with respect to the
registration statement or any amendment thereto; and (iv) comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during the applicable period
in accordance with the intended method or methods of distribution by the Selling
Holders thereof. 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 4(b), Section 4(d) or Section 4(k) with
respect to each Holder of Registrable Securities: (x) to the extent that the
Company is in possession of material non-public information that it determines
in good faith advisable not to disclose or is engaged in active negotiations or
planning for a merger or acquisition or disposition transaction and it delivers
written notice to each such Selling Holder of Registrable Securities to the
effect that such Selling Holder may not make offers or sales under the
registration statement for a period not to exceed thirty (30) days from the date
of such notice, provided, however, that the Company may deliver only two such
notices within any twelve-month period; and (y) unless and until the Company has
received a written notice (a "Registration Notice") from a Selling Holder that
such Selling Holder intends to make offers or sales under a registration
statement as specified in such Registration Notice; provided, however, that the
Company shall have ten (10) business days to prepare and file any such amendment
or supplement after receipt of the Registration Notice or such longer period as
is reasonably necessary if such preparation and filing are not commercially
practicable within ten (10) business days. Once a Selling Holder has delivered a
Registration Notice to the Company, such Selling Holder shall promptly provide
to the Company such information as the Company reasonably requests in order to
identify such Selling Holder and the method of distribution in a post-effective
amendment to the registration statement or a supplement to the Prospectus. Such
Selling Holder also shall notify the Company in writing upon completion of such
offer or sale
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or at such time as such Selling Holder no longer intends to make offers or sales
under the registration statement;
(c) furnish to each Selling Holder of Registrable Securities,
without charge, as many copies of each Prospectus and any amendment or
supplement thereto as such Holder may reasonably request in order to facilitate
the public sale or other disposition of the Registrable Securities; the Company
consents to the use of the Prospectus and any amendment or supplement thereto by
each such Selling Holder of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or
amendment or supplement thereto;
(d) use its reasonable efforts to register or qualify the
Registrable Securities by the time a registration statement is declared
effective by the SEC under all applicable state securities or blue sky laws of
such jurisdictions in the United States and its territories and possessions as
any Holder of Registrable Securities covered by a registration statement shall
reasonably request in writing, keep each such registration or qualification
effective during the period such registration statement is required to be kept
effective or during the period offers or sales are being made by a Selling
Holder that has delivered a 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 4(d),
(ii) subject itself to taxation in any such jurisdiction, or (iii) file a
general consent to service of process in any such jurisdiction;
(e) notify each Selling Holder of Registrable Securities promptly
and, if requested by such Selling Holder, confirm in writing, (i) when a
registration statement and any post-effective amendments thereto have become
effective, (ii) when any amendment or supplement to the applicable Prospectus
has been filed with the SEC, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
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 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 a registration statement
is effective as a result of which (A) such 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 applicable Prospectus as then amended or supplemented contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the registration statement or any part
thereof as promptly as possible;
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(g) furnish to each Selling Holder of Registrable Securities
without charge, at least one conformed copy of the applicable registration
statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD");
(i) if reasonably requested by the managing underwriter or
underwriters or a Selling Holder in connection with an underwritten offering,
promptly incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters and the holders of a majority in number
of the Registrable Securities being sold agree should be included therein solely
relating to (a) the number of Registrable Securities being sold to such
underwriters, (b) the purchase price being paid therefor by such underwriters
and (c) with respect to any other terms of the offering of the Registrable
Securities to be sold in such offering which may affect the underwriters or the
Selling Holders; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(j) cooperate with the Selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any Securities Act legend; and
enable certificates for such Registrable Securities to be issued at least two
business days prior to any sale of Registrable Securities for such numbers of
shares and registered in such names as the Selling Holders may reasonably
request, upon ten (10) business days prior notice;
(k) subject to the last three sentences of Section 4(b) hereof,
upon the occurrence of any event contemplated by clause (x) of Section 4(b) or
clause (v) of Section 4(e) hereof, use its reasonable efforts promptly to
prepare and file an amendment or a supplement to the Prospectus or any document
incorporated therein by reference or prepare, file and obtain effectiveness of a
post-effective amendment to the 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 Registrable Securities, such
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;
(l) make available for inspection by the Selling Holders of
Registrable Securities and underwriters, and any counsel, accountants or other
representatives retained by such Selling Holders and underwriters all financial
and other records, pertinent corporate
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documents and properties of the Company and cause the officers, directors and
employees of the Company to supply all such records, documents or information
reasonably requested by such Selling Holders, underwriters, counsel, accountants
or representatives in connection with the registration statement; provided,
however, that such records, documents or information which the Company
determines in good faith to be confidential and with respect to which the
Company notifies such Selling Holders, underwriters, counsel, accountants or
representatives in writing that such records, documents or information are
confidential, shall not be disclosed by such Selling Holders, underwriters,
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;
(m) a reasonable time prior to the filing of any registration
statement or any amendment thereto, or any Prospectus or any amendment or
supplement thereto, provide copies of such document (not including any documents
incorporated by reference therein unless requested) to the Selling Holders of
Registrable Securities, provided that before filing a registration statement or
Prospectus or any amendments or supplements thereto, upon request, documents
incorporated by reference after the initial filing of the registration
statement, the Company will furnish to (i) one counsel selected by the holders
of a majority of the Shares of Registrable Securities covered by such
Registration Statement, and (ii) the underwriters, if any, copies of all such
documents proposed to be filed, and such counsel and underwriters may review and
comment solely with respect to the portions of such documents which provide
information regarding the Holders or the Registrable Securities;
(n) use its reasonable efforts to cause all Registrable
Securities to be listed on any securities exchange on which similar securities
issued by the Company are then listed;
(o) provide a CUSIP number for all Registrable Securities, not
later than the effective date of any applicable registration statement;
(p) use its reasonable efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement covering at
least 12 months which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(q) if requested by a Selling Holder and any underwriters engaged
by such Selling Holder for purposes of distributing the Registrable Securities,
enter into such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings) and take all such other
reasonable actions in connection therewith (including those reasonably requested
by the underwriters or such Selling Holder) in order to expedite or facilitate
the disposition of such Registrable Securities, and in such connection, (i) make
such representations and warranties to the underwriters with respect to the
business of the Company and the registration statement, Prospectus and
documents, if any, incorporated or
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deemed to be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof (which shall be in form and substance
reasonably satisfactory to the underwriters, if any, and their respective
counsel), addressed to such Selling Holder and each of the underwriters covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such counsel and
underwriters; (iii) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company, addressed to such
Selling Holder and each of the underwriters, such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings (in each case, to the extent
permitted by applicable accounting rules and guidelines); (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the underwriters than those set
forth in Section 5 hereof and cross indemnification by the underwriters similar
to that set forth in Section 5 hereof in favor of the Company or the Selling
Holders, as the case may be; and (v) deliver such documents and certificates as
may be reasonably requested by the managing underwriters and their counsel to
evidence the continued validity of the representations and warranties made
pursuant to clause (i) above of this Section 4(q) and to evidence compliance
with any customary conditions contained in the underwriting agreement entered
into by the Company.
The Company may require each Selling Holder of Registrable Securities
to furnish to the Company in writing such information regarding the proposed
distribution by such Selling Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 2 hereof and
this Section 4, each Selling Holder covenants and agrees that (i) it will not
offer or sell any Registrable Securities under the Shelf Registration Statement
until it has provided a Registration Notice pursuant to Section 4(b) and has
received copies of the Prospectus as then amended or supplemented as
contemplated by Section 4(c) and notice from the Company that the registration
statement and any post-effective amendments thereto have become effective as
contemplated by Section 4(e); (ii) upon receipt of any notice from the Company
contemplated by Section 4(b) (in respect of the occurrence of an event
contemplated by clause (x) of Section 4(b)) or Section 4(e) (in respect of the
occurrence of an event contemplated by clause (v) of Section 4(e)), such Selling
Holder shall not offer or sell any Registrable Securities pursuant to the Shelf
Registration Statement until such Selling Holder receives copies of the
supplemented or amended Prospectus contemplated by Section 4(k) hereof and
receives notice that any post-effective amendment has become effective, and, if
so directed by the Company, such Selling Holder will deliver to the Company (at
the expense of the Company) all copies in its possession, other than permanent
file copies then in such Selling Holder's possession, of the Prospectus as
amended or supplemented at the time of receipt of such notice; (iii) all offers
and sales by such Selling Holder under the Shelf
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Registration Statement must be completed within sixty (60) days after the first
date on which offers or sales can be made pursuant to clause (i) above, and upon
expiration of such sixty (60) day period, the Selling Holder may not offer or
sell any Registrable Securities under the Shelf Registration Statement until it
has again complied with the provisions of clause (i) above; (iv) such Selling
Holder and any of its partners, officers, trustees, directors or affiliates, if
any, must comply with the provisions of Regulation M under the Exchange Act as
applicable to them in connection with sales of Registrable Securities pursuant
to the Shelf Registration Statement; and (v) such Selling Holder and any of its
partners, officers, trustees, directors or affiliates, if any, must enter into
such written agreements as the Company shall reasonably request to ensure
compliance with clause (iv) above.
5. Indemnification; Contribution.
(a) Indemnification by the Company.
The Company agrees to indemnify and hold harmless each Holder
and its officers and directors and each Person, if any, who controls any Holder
within the meaning of Section 15 of the Securities Act and each of their
respective partners, trustees, officers, directors, employees, agents and
Affiliates (collectively, the "Holder Indemnified Persons") as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to which such Holder Indemnified Person
may become subject under the Securities Act or otherwise (A) that arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or any amendment
thereto, or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading or (B) that arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in any Prospectus or any amendment or supplement thereto, or the omission
or alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or alleged untrue statement
or any omission or alleged omission contained in a registration statement,
if such settlement is effected with the written consent of the Company; and
(iii) subject to the limitations set forth in Section 5(c),
against any and all expense whatsoever, as incurred (including reasonable
fees and disbursements
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of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether
or not a party, or any claim whatsoever based upon any such untrue
statement or alleged untrue statement or omission or alleged omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that the indemnity provided pursuant to this Section 5(a)
shall not apply to any Holder to the extent of any loss, liability, claim,
damage or expense that arise out of or are based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by such
Holder expressly for use in a registration statement or any amendment thereto or
the Prospectus or any amendment or supplement thereto.
(b) Indemnification by Holders.
Each Selling Holder severally and not jointly agrees to
indemnify and hold harmless the Company and the other Selling Holders, and each
of their respective partners, trustees, directors and officers (including each
trustee and officer of the Company who signed the registration statement), and
each Person, if any, who controls the Company or any other Selling Holder within
the meaning of Section 15 of the Securities Act (collectively, the "Company
Indemnified Persons") , to the same extent as the indemnity contained in Section
5(a) hereof, but only insofar as such loss, liability, claim, damage or expense
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in a registration statement or any
amendment thereto or the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by such Selling Holder expressly for use therein relating to the
Holder's status as a selling security holder.
(c) Conduct of Indemnification Proceedings.
Each Holder Indemnified Person or Company Indemnified Person
entitled to indemnification pursuant to Section 5(a) or 5(b), as the case may be
(the "Indemnified Party") shall give reasonably prompt notice to each
indemnifying party of any action or proceeding commenced against it in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party (i) shall not relieve it from any liability which it may have
under the indemnity agreement provided in Section 5(a) or (b) above, unless and
to the extent the indemnifying party did not otherwise learn of such action and
the lack of notice by the Indemnified Party materially prejudices the
indemnifying party or results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided under Section 5(a) or (b) above. After
receipt of such notice, the indemnifying party shall be entitled to participate
in and, at its option, jointly with
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any other indemnifying party so notified, to assume the defense of such action
or proceeding at such indemnifying party's own expense with counsel chosen by
such indemnifying party and approved by the Indemnified Party, which approval
shall not be unreasonably withheld; provided, however, that, if the defendants
in any such action or proceeding include both the Indemnified Party and the
indemnifying party and the Indemnified Party reasonably determines, upon advice
of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other Indemnified Parties that are different from or
in addition to those available to the indemnifying party, then the Indemnified
Party shall be entitled to one separate counsel, the reasonable fees and
expenses of which shall be paid by the indemnifying party. If the indemnifying
party does not assume the defense of any such action or proceeding, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel (which
shall be limited to a single law firm) for the Indemnified Party. In such event,
however, the indemnifying party will not be liable for any settlement effected
without the written consent of such indemnifying party. If the indemnifying
party assumes the defense of any such action or proceeding in accordance with
this paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the Indemnified Party incurred thereafter in connection
with such action or proceeding except as set forth in the proviso in the second
sentence of this Section 5(c). No Indemnified Party will be required to consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(d) Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 5 is
for any reason held to be unenforceable although applicable in accordance with
its terms or is insufficient to hold an Indemnified Party harmless as
contemplated in Section 5(a) and 5(b) above, each indemnifying party hereby
agrees that upon any such circumstance such indemnifying party shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Indemnified Party, in
such proportion as is appropriate to reflect the relative fault of and benefits
received by the Indemnified Party and each such indemnifying party, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits to the indemnifying party and
Indemnified Parties shall be determined by reference to among other things, the
total proceeds received by the Indemnified Party and Indemnified Parties in
connection with the offering to which such losses, claims, damages, liabilities
or expenses relate. The relative fault of the indemnifying party and Indemnified
Parties shall be determined by reference to, among other things, whether the
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or the
Indemnified Parties, and the parties' relative intent, pledge, access to
information and opportunity to correct or prevent such action.
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The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 6(d), no Selling
Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities of such Selling Holder
were offered to the public exceeds the amount of any damages which such Selling
Holder would otherwise have been required to pay by reason of such untrue
statement or omission.
Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
6. Rule 144 Sales.
In connection with any sale, transfer or other disposition by any
Holder of any Registrable Securities pursuant to Rule 144 under the Securities
Act, the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, and enable certificates for such Registrable Securities to be issued at
least two business days prior to any sale of Registrable Securities for such
number of shares and registered in such names as the Selling Holders may
reasonably request upon ten (10) business days prior notice. The Company's
obligation set forth in the previous sentence shall be subject to the delivery,
if reasonably requested by the Company or its transfer agent, by counsel to such
Holder, in form and substance reasonably satisfactory to the Company and its
transfer agent, of an opinion that such Securities Act legend need not appear on
such certificate.
7. Restrictions on Transfer of Shares.
(a) Transfer of Shares. Without the Company's prior written
consent, each of the Holders severally agrees that, except as set forth in
Section 7(b) below, it will not, directly or indirectly, offer, sell, contract
to sell or otherwise dispose of (or announce any offer, sale, contract of sale
or other disposition) ("Transfer") any Shares (all of such securities being
hereinafter referred to herein as "Restricted Securities"), for a period of 90
days after the date of the closing of the transactions contemplated by the
Purchase Agreement.
(b) Permitted Transfers. The restrictions contained in this
Section 7 will not apply with respect to any Transfer of the Restricted
Securities by a Holder (i) pursuant to applicable laws of distribution, (ii)
among such Holder's Affiliates, or (iii) as a result of a pledge by any Holder
of the Shares as security for any indebtedness or guaranty of any Holder, upon
the exercise of the pledgee's rights under such pledge (collectively referred to
herein as "Permitted Transferees"); provided that (x) the restrictions contained
in this Section 7 shall continue to be applicable to the Restricted Securities
after any Transfer under this Section 7(b),
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(y) the transferees of such Restricted Securities prior to any Transfer under
this Section 7(b), shall have agreed in writing to be bound by the provisions of
this Agreement affecting the Restricted Securities so transferred and (z) any
Transfers will be subject to the restrictions on transfer contained in the
Company's Declaration of Trust.
(c) Subsequent Holders. Subject to the foregoing restrictions,
the Company and the Holders hereby agree that any subsequent Holder of
Registrable Securities shall be entitled to all benefits hereunder as a Holder
of Registrable Securities; provided, however, that, in any event, if the
Company's Declaration of Trust prohibits the acquisition of the desired number
of Common Shares by such Holder, such number shall be reduced to the amount of
Registrable Securities such Holder may acquire and such Holder's transferees
shall also be entitled to all benefits hereunder as a Holder of Registrable
Securities.
8. Participation in Underwritten Registrations.
If any of the Registrable Securities covered by the Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer the offering
will be selected by the holders of a majority of the Registrable Securities
included in such offering; provided that such investment bankers and managers
must be reasonably satisfactory to the Company.
9. Miscellaneous.
(a) Amendments and Waivers.
The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified, supplemented or waived, nor may
consent to departures therefrom be given, without the written consent of the
Company and the Holders of a majority of the outstanding Registrable Securities,
provided, however, that no amendment, modification, supplement or waiver of, or
consent to the departure from, the provisions of Sections 2, 3, 4, 5, 6, 7, 8,
or 9 hereof shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder of Registrable Securities. Notice
of any such amendment, modification, supplement, waiver or consent adopted in
accordance with this Section 9(a) shall be provided by the Company to each
Holder of Registrable Securities at least thirty (30) days prior to the
effective date of such amendment, modification, supplement, waiver or consent.
(b) Notices.
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to Stichting Pensioenfonds ABP, at the most current address given by Stichting
Pensioenfonds ABP, in accordance with this Section, which
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address initially is Oude Lindestraat 70, P.O. Box 2889, 6401 DJ Heerlen, The
Netherlands Attn: Peter Wittendorp/Leo Palmen with a copy to: U.S. Alpha
Incorporated, 450 Lexington Avenue, Suite 1800, New York, New York 10017, Attn:
Andre van de Berg (ii) if to any other Holder, at such Holder's registered
address appearing on the share register of the Company or (iii) if to the
Company, at Two North Riverside Plaza, Suite 2200, Chicago, IL 60606, Attention:
Timothy H. Callahan, President and Chief Executive Officer.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; or
at the time delivered if delivered by an air courier guaranteeing overnight
delivery.
(c) Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including,
without limitation and without the need for an express assignment, subsequent
Holders. If any successor, assignee or transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding Registrable Securities such Person shall be
conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
(d) Counterparts.
This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Headings.
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland without giving effect to the conflicts of
law provisions thereof.
(g) Specific Performance.
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The parties hereto acknowledge that there would be no adequate
remedy at law if any party fails to perform any of its obligations hereunder,
and accordingly agree that each party, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction.
(h) Entire Agreement.
This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(i) Limitation of Liability of Shareholders and Officers of the
Company.
ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE COMPANY WHICH MAY
ARISE AT ANY TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR LIABILITY WHICH MAY
BE INCURRED BY IT PURSUANT TO ANY OTHER INSTRUMENT, TRANSACTION OR UNDERTAKING
CONTEMPLATED HEREBY SHALL BE SATISFIED, IF AT ALL, OUT OF THE COMPANY'S ASSETS
ONLY. NO SUCH OBLIGATION OR LIABILITY, OTHER THAN THIS AGREEMENT AS IT RELATES
TO EACH OF THE HOLDERS, SHALL BE PERSONALLY BINDING UPON, NOR SHALL RESORT FOR
THE ENFORCEMENT THEREOF BE HAD TO, THE PROPERTY OF ANY OF ITS SHAREHOLDERS,
TRUSTEES, OFFICERS, EMPLOYEES OR AGENTS (SOLELY AS A RESULT OF THEIR STATUS AS
SHAREHOLDERS, TRUSTEES, OFFICERS, EMPLOYEES OR AGENTS), REGARDLESS OF WHETHER
SUCH OBLIGATION OR LIABILITY IS IN THE NATURE OF CONTRACT, TORT OR OTHERWISE.
NOTWITHSTANDING THE FOREGOING, THIS SECTION 9(i) SHALL NOT IN ANY WAY AFFECT OR
LIMIT ANY OBLIGATION OR LIABILITY OF ANY HOLDER UNDER THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EQUITY OFFICE PROPERTIES TRUST
By: s/s Richard D. Kincaid
Name: Richard D. Kincaid
Title: Executive Vice President
Chief Financial Officer
HOLDER:
STICHTING PENSIOENFONDS ABP
By: s/s Wim Borgdorff
Name: Wim Borgdorff
Title: Managing Director-Real Estate
By: s/s Jean Frijns
Name: Jean Frijns
Title: Chief Investment Officer
25
