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<SEC-DOCUMENT>0000927016-01-500108.txt : 20010409
<SEC-HEADER>0000927016-01-500108.hdr.sgml : 20010409
ACCESSION NUMBER: 0000927016-01-500108
CONFORMED SUBMISSION TYPE: 10-K405
PUBLIC DOCUMENT COUNT: 7
CONFORMED PERIOD OF REPORT: 20001231
FILED AS OF DATE: 20010330
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BOSTON PROPERTIES INC
CENTRAL INDEX KEY: 0001037540
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500]
IRS NUMBER: 042473675
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K405
SEC ACT:
SEC FILE NUMBER: 001-13087
FILM NUMBER: 1588478
BUSINESS ADDRESS:
STREET 1: 800 BOYLSTON STREET
STREET 2: SUITE 400
CITY: BOSTON
STATE: MA
ZIP: 02199
BUSINESS PHONE: 6172363300
MAIL ADDRESS:
STREET 1: 800 BOYLSTON STREET
STREET 2: SUITE 400
CITY: BOSTON
STATE: MA
ZIP: 02199
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K405
<SEQUENCE>1
<FILENAME>d10k405.txt
<DESCRIPTION>FORM 10-K405
<TEXT>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2000
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from _________ to _________
Commission file number 1-13087
BOSTON PROPERTIES, INC.
(Exact name of Registrant as Specified in its Charter)
Delaware 04-2473675
(State or Other Jurisdiction (IRS Employer Id. Number)
of Incorporation or Organization)
800 Boylston Street
Boston, Massachusetts 02199
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (617) 236-3300
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Exchange on Which Registered
------------------- ------------------------------------
Common Stock, Par Value $.01 New York Stock Exchange
Preferred Stock Purchase Rights
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes |X| No |_|
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. |X|
As of March 14, 2001, the aggregate market value of the 85,291,023 shares of
common stock held by non-affiliates of the Registrant was $3,389,465,254 based
upon the closing price of $39.74 on the New York Stock Exchange composite tape
on such date. (For this computation, the Registrant has excluded the market
value of all shares of common stock reported as beneficially owned by executive
officers and directors of the Registrant; such exclusion shall not be deemed to
constitute an admission that any such person is an affiliate of the Registrant.)
As of March 14, 2001, there were 89,701,122 shares of Common Stock outstanding.
Certain information contained in the Registrant's Proxy Statement relating to
its Annual Meeting of Stockholders to be held May 2, 2001 are incorporated by
reference in Part III, Items 10, 11, 12 and 13.
<PAGE>
TABLE OF CONTENTS
ITEM NO. DESCRIPTION PAGE NO.
PART I
1. BUSINESS ......................................................... 1
2. PROPERTIES ....................................................... 26
3. LEGAL PROCEEDINGS ................................................ 28
4. SUBMISSION OF MATTERS TO A VOTE
OF SECURITY HOLDERS ............................................. 29
PART II
5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS ............................................. 29
6. SELECTED FINANCIAL DATA .......................................... 30
7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS ............................. 32
7a. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK ............................................................ 46
8. FINANCIAL STATEMENTS AND
SUPPLEMENTARY DATA .............................................. 46
9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE ............................. 46
PART III
10. DIRECTORS AND EXECUTIVE OFFICERS
OF THE REGISTRANT ............................................... 47
11. EXECUTIVE COMPENSATION ........................................... 47
12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT ........................................... 47
13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS ................... 47
PART IV
14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND
REPORTS ON FORM 8-K ............................................. 48
SIGNATURES ....................................................... 53
<PAGE>
PART I
Item 1. Business
General
As used herein, the terms "we," "us," "our" or the "Company" refer to
Boston Properties, Inc., a Delaware corporation organized in 1997, individually
or together with its subsidiaries, including Boston Properties Limited
Partnership, a Delaware limited partnership, and our predecessors. We are a
fully integrated self-administered and self-managed real estate investment trust
or "REIT" and one of the largest owners and developers of office properties in
the United States. Our properties are concentrated in four core markets -
Boston, Washington, D.C., midtown Manhattan and San Francisco. We conduct
substantially all our business through Boston Properties Limited Partnership. At
December 31, 2000 we owned 145 properties, totaling 37.9 million net rentable
square feet. Our properties consisted of 134 office properties, comprised of 103
Class A office buildings and 31 properties that support both office and
technical uses, including 15 properties under construction, eight industrial
properties and three hotels. We consider Class A office buildings to be
centrally located buildings that are professionally managed and maintained,
attract high-quality tenants and command upper-tier rental rates, and that are
modern structures or have been modernized to compete with newer buildings.
We have a $605 million unsecured revolving line of credit with Fleet
National Bank, as agent, which expires in March 2003. As of March 14, 2001, zero
was outstanding under our unsecured revolving line of credit. You should refer
to "Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations - Liquidity and Capital Resources" for additional
information regarding our unsecured revolving line of credit and our other
indebtedness.
We are a full service real estate company, with substantial in-house
expertise and resources in acquisitions, development, financing, construction
management, property management, marketing, leasing, accounting, tax and legal
services. As of December 31, 2000, we had over 600 employees. Our 25 senior
officers, together with Mr. Mortimer Zuckerman, Chairman of our board of
directors, have an average of 24 years experience in the real estate industry
and an average of 14 years tenure with us. Our principal executive office is
located at 800 Boylston Street, Boston, Massachusetts 02199 and its telephone
number is (617) 236-3300. In addition, we have regional offices at 401 9th
Street, NW, Washington, D.C. 20004; 599 Lexington Avenue, New York, New York
10022; Four Embarcadero Center, San Francisco, California 94111; and 502
Carnegie Center, Princeton, New Jersey 08540.
Boston Properties Limited Partnership
Boston Properties Limited Partnership, a Delaware limited partnership, is
the entity through which we conduct substantially all of our business and own
(either directly or through subsidiaries) substantially all of our assets. We
are the sole general partner and, as of March 14,
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2001, the owner of approximately 74.3% of the economic interests in Boston
Properties Limited Partnership. This structure is commonly referred to as an
umbrella partnership REIT or "UPREIT". Our general and limited partnership
interests in Boston Properties Limited Partnership entitle us to share in cash
distributions from, and in the profits and losses of, Boston Properties Limited
Partnership in proportion to our percentage interest therein and entitle us to
vote on all matters requiring a vote of the limited partners. The other partners
of Boston Properties Limited Partnership are persons who contributed their
direct or indirect interests in certain properties to Boston Properties Limited
Partnership in exchange for common units of limited partnership interest in
Boston Properties Limited Partnership or preferred units of limited partnership
interest in Boston Properties Limited Partnership. Pursuant to the limited
partnership agreement of Boston Properties Limited Partnership, as amended,
unitholders may tender their common units of Boston Properties Limited
Partnership for cash equal to the value of an equivalent number of shares of our
common stock. In lieu of delivering cash, however, we may, at our option, choose
to acquire any units so tendered by issuing common stock in exchange for the
units. Our common stock will be exchanged for units on a one-for-one basis. This
one-for- one exchange ratio may be adjusted to prevent dilution. We currently
anticipate that we will elect to issue our common stock in connection with each
such presentation for redemption rather than having Boston Properties Limited
Partnership pay cash. With each such exchange or redemption, our percentage
ownership in Boston Properties Limited Partnership will increase. In addition,
whenever we issue shares of our common stock other than to acquire common units
of Boston Properties Limited Partnership, we must contribute any net proceeds we
receive to Boston Properties Limited Partnership and Boston Properties Limited
Partnership must issue to us an equivalent number of common units of Boston
Properties Limited Partnership.
Preferred units of Boston Properties Limited Partnership have the rights,
preferences and other privileges (including the right to convert into common
units of Boston Properties Limited Partnership) as are set forth in amendments
to the limited partnership agreement of Boston Properties Limited Partnership.
Boston Properties Limited Partnership currently has four series of its preferred
units (excluding preferred units held by Boston Properties, Inc.). The Series
One preferred units have an aggregate liquidation preference of approximately
$85 million and bear a preferred distribution at a rate of 7.25% per annum,
payable quarterly. Series One units are convertible into common units at the
rate of $38.25 per common unit at the holder's election at any time. We also
have the right to convert into common units of Boston Properties Limited
Partnership all or part of the Series One units on or after June 3, 2003, if our
common stock at the time of our election is trading at a price of at least
$42.08 per share.
The Series Two and Series Three preferred units, which together have an
aggregate liquidation preference of approximately $311 million, have, between
each other, similar economic terms. On and after December 31, 2002, the Series
Two and Series Three units will be convertible, at the holder's election, into
common units at a conversion price of $38.10 per common unit. Distributions on
the Series Two and Series Three units are payable quarterly and generally accrue
at rates of: 5.0% per annum through March 31, 1999; 5.5% through December 31,
1999; 5.625% through December 2000; 6.0% through December 31, 2001; 6.5% through
December 31, 2002; 7.0% until May 12, 2009; and 6.0% thereafter. The terms of
the Series Two and Series Three units provide that they may be redeemed for cash
in six annual tranches,
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<PAGE>
beginning on May 12, 2009, at the election of us or the holders. We also have
the right to convert into common units of Boston Properties Limited Partnership
any Series Two and Series Three units that are not redeemed when they are
entitled to redemption.
The Series Z preferred units have an aggregate liquidation preference of
the greater of the value of our common stock or $37.25 per unit. The Series Z
preferred units are not entitled to receive any distributions until after August
11, 2001. From August 11, 2001 until February 11, 2002, each Series Z preferred
unit entitles its holder to receive one-half of any distributions paid on a
common unit. After February 11, 2002, to the extent that any Series Z preferred
units are still outstanding, each Series Z preferred unit entitles its holder to
receive an amount equal to 100% of any distributions paid on a common unit. The
Series Z preferred units will automatically convert into common units on
February 11, 2002 or, if later, the date on which we register with the
Securities and Exchange Commission the shares of our common stock issuable in
exchange for the common units into which the Series Z units are convertible.
Real Estate Acquisitions during 2000
On January 12, 2000, we acquired our joint venture partner's 75% interest
in One and Two Reston Overlook, an unconsolidated joint venture, for cash of
approximately $15.2 million and the assumption of approximately $69.0 million in
debt.
On March 1, 2000, we acquired three Class A office buildings totaling
approximately 408,163 square feet at Carnegie Center in Princeton, New Jersey,
under the terms of the original Carnegie Center Portfolio acquisition. The
properties were acquired from a related party for approximately $66.5 million,
which was funded through the assumption of debt of approximately $49.0 million
at a rate of 7.39% and the issuance of 577,817 common units of partnership
interest in Boston Properties Limited Partnership valued at approximately $17.5
million. The acquisition was approved by a vote of our independent directors.
On August 22, 2000, we acquired the remaining 50% interest in the
development rights at the Prudential Center in Boston, Massachusetts for
approximately $18.2 million, which was funded through the issuance of 439,059
shares of our common stock.
On December 1, 2000, we acquired the leasehold interest and ground rent
credits at the site of the future Times Square Tower in midtown Manhattan, for
approximately $165.1 million in cash. This development will consist of a 47-
floor, 1.2 million square foot office tower.
Developments Placed in Service during 2000
In the second quarter of 2000, the Orbital Sciences project was
placed-in-service. This project consists of two Class A office buildings
totaling approximately 174,832 square feet and is located in Dulles, VA. We
developed this project, in which we have a 100% interest, at a total cost to us
of approximately $30.5 million.
In the fourth quarter of 2000, the 140 Kendrick Street project was
placed-in-service. This
3
<PAGE>
project consists of three Class A office buildings totaling approximately
381,000 square feet and is located in Needham, Massachusetts. We developed the
project, in which we have a 25% interest, at a total cost to us of approximately
$18.8 million.
In the fourth quarter of 2000, the Market Square North project was
placed-in-service. This project consists of a Class A office building totaling
approximately 401,255 square feet and is located in Washington, D.C. We
developed the project, in which we have a 50% interest, at a total cost to us of
approximately $59.2 million.
New Joint Venture with Financial Partner during 2000
On May 12, 2000, we entered into a joint venture with the New York State
Common Retirement Fund. The initial term of the joint venture agreement runs for
three years or until the New York State Common Retirement Fund's equity
commitment of $270 million is met, although it has the right to increase its
financial commitment prior to the end of the third year. During the term of the
joint venture agreement, New York State Common Retirement Fund has the right to
participate in our acquisition opportunities and development projects that we
pursue with an institutional partner. We will manage the development and
operation of all joint venture properties.
On May 12, 2000, pursuant to the joint venture agreement, the New York
State Common Retirement Fund acquired partial interests in two properties that
we previously owned in their entirety. We retained a 51% interest in the first
property, Metropolitan Square, a 582,194-square foot office property in
Washington, D.C. and a 25% interest in the second property, 140 Kendrick Street,
a 381,000-square foot build-to-suit development property in Needham,
Massachusetts. The interests in the properties were acquired for cash of
approximately $46.7 million and the assumption of debt of approximately $88.2
million and resulted in a gain to us of $0.4 million.
On September 13, 2000, we acquired a 35% interest in 265 Franklin Street,
a 325,699 square foot office property in Boston, Massachusetts through our joint
venture with the New York State Common Retirement Fund, which acquired 65% of
this property. Our interest in this property was acquired with cash and new debt
financing totaling approximately $34.3 million.
On December 8, 2000, we agreed with the New York State Common Retirement
Fund to develop 901 New York Avenue, a Class A office building in Washington,
D.C. totaling 550,000 square feet. We have a 25% interest and manage the
development of the property, while the New York State Common Retirement Fund
owns a 75% interest.
Equity Financing Activities during 2000
On August 22, 2000, we issued 439,059 shares of common stock, valued at
approximately $18.2 million, in connection with the acquisition of the remaining
50% interest in the development rights at the Prudential Center in Boston,
Massachusetts.
4
<PAGE>
On October 31, 2000, we completed a public offering of 17,110,000 shares
of our common stock at a price per share of $39.0625 (including 2,110,000 shares
issued as a result of the exercise of an overallotment option by the
underwriters) resulting in net proceeds to us of approximately $633.8 million.
Business and Growth Strategies
Business Strategy
Our primary business objective is to maximize return on investment so as
to provide our stockholders with the greatest possible total return. Our
strategy to achieve this objective is:
o to concentrate on a few carefully selected markets and to be one of,
if not the leading, owner and developer in each of those markets. We
select markets and submarkets where tenants have demonstrated a
preference for high quality office buildings and other facilities.
o to emphasize markets and submarkets within those markets where there
are barriers to the creation of new supply and where skill,
financial strength and diligence are required to successfully
develop and manage high quality office, research and development
and/or industrial space.
o to take on complex, technically challenging projects, leveraging the
skills of our management team to successfully develop, acquire or
reposition properties which other organizations may not have the
capacity or resources to pursue.
o to concentrate on high quality, state-of-the-art real estate
designed to meet the demands of today's knowledge-based tenants and
to manage those facilities so as to become the landlord of choice
for both existing and prospective clients.
o to opportunistically acquire assets which increase our penetration
in the markets in which we have chosen to concentrate and which
exhibit an opportunity to improve returns through repositioning,
changes in management focus and re-leasing as existing leases
terminate.
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<PAGE>
Growth Strategies
External Growth
We believe that we are well positioned to realize significant growth
through external asset development and acquisition. We believe that our
development experience and our organizational depth position us to continue to
develop a range of property types, from single-story suburban office properties
to high-rise urban developments, within budget and on schedule. Other factors
that contribute to our competitive position include:
o the significant increase in demand for new, high quality office
space in our core markets;
o our control of sites (including sites under contract or option to
acquire) in our core markets that will support approximately 10.6
million square feet of new office development;
o our reputation gained through the stability and strength of our
existing portfolio of properties;
o our relationships with leading national corporations and public
institutions seeking new facilities and development services;
o our relationships with nationally recognized financial institutions
that provide capital to the real estate industry; and
o the substantial amount of commercial real estate owned by domestic
and foreign institutions, private investors, and corporations who
are seeking to sell these assets in our market areas.
We have targeted three areas of development and acquisition as significant
opportunities to execute our external growth strategy:
o Pursue development in selected submarkets. We believe that
development of well-positioned office buildings is and will continue
to be justified in many of our submarkets. We believe in acquiring
land in response to market conditions that allow for its development
in the relative near term. While we purposely concentrate in markets
with high barriers to entry, we have demonstrated over our 30 year
history an ability to make carefully timed land acquisitions in
submarkets where we can become one of the market leaders in
establishing rent and other business terms. We believe that there
are opportunities in our existing and other markets for a well
capitalized developer to acquire land with development potential at
key locations.
In the past, we have been particularly successful at acquiring
sites or options to purchase sites that need governmental approvals.
Because of our development expertise, knowledge of the governmental
approval process and reputation for quality development with local
government approval regulatory bodies, we generally have been able
to secure the permits necessary to allow development, and profit
from the
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<PAGE>
resulting increase in land value. We seek out complex projects where
we can add value through the efforts of our experienced and skilled
management team leading to significantly enhanced returns on
investment.
o Acquire assets and portfolios of assets from institutions or
individuals. We believe that due to our size, management strength
and reputation, we are in an advantageous position to acquire
portfolios of assets or individual properties from institutions or
individuals. We may acquire properties for cash, but we believe that
we are particularly well positioned to appeal to sellers wishing to
convert on a tax-deferred basis their ownership of property to the
ownership of equity in a diversified real estate operating company
that offers liquidity through access to the public equity markets.
In addition, we may pursue mergers with and acquisitions of
compatible real estate firms. Our ability to offer units in Boston
Properties Limited Partnership to sellers who would otherwise
recognize a gain upon a sale of assets for cash or our common stock
may facilitate this type of transaction on a tax-efficient basis.
o Acquire existing underperforming assets and portfolios of assets. We
continue to actively pursue opportunities to acquire existing
buildings that, while currently generating income, are either
underperforming the market due to poor management or are currently
leased at below market rents with anticipated roll-over of space.
These opportunities may include the acquisition of entire portfolios
of properties. We believe that because of our in-depth market
knowledge and development experience in each of our markets, our
national reputation with brokers, financial institutions and others
involved in the real estate market and our access to
competitively-priced capital, we are well-positioned to identify and
acquire existing, underperforming properties for competitive prices
and to add significant additional value to such properties through
our effective marketing strategies and responsive property
management program.
Internal Growth
We believe that significant opportunities exist to increase cash flow from
our existing properties because they are of high quality and in desirable
locations in markets that, in general, are experiencing rising rents, low
vacancy rates and increasing demand for office and industrial space. In
addition, our properties are in markets where, in general, supply is limited by
the lack of available sites and the difficulty of receiving the necessary
approvals for development on vacant land. Our strategy for maximizing the
benefits from these opportunities is two-fold: (1) to provide high quality
property management services using our own employees in order to encourage
tenants to renew, expand and relocate in our properties, and (2) to achieve
speed and transaction cost efficiency in replacing departing tenants through the
use of in-house services for marketing, lease negotiation, and design and
construction of tenant improvements. In addition, we believe that our hotel
properties will add to our internal growth because of their desirable locations
in the downtown Boston and East Cambridge submarkets, which are experiencing
high occupancy rates and continued growth in room rates. The effective
management of Marriott International, Inc., has resulted in high occupancy,
guest satisfaction and growth in room rates
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while limiting increases in operating costs. We expect to continue our internal
growth as a result of our ability to:
o Cultivate existing submarkets. In choosing locations for our
properties, we have paid particular attention to transportation and
commuting patterns, physical environment, adjacency to established
business centers, proximity to sources of business growth and other
local factors.
Many of these submarkets are experiencing increasing rents
and, as a result, current market rates often exceed the rents being
paid by our tenants. Based on leases in place at December 31, 2000,
leases with respect to 7.27% of our office properties and 13.95% of
our industrial properties will expire in calendar year 2001. We
believe that leases expiring over the next three years in these
submarkets will be renewed, or space re-let, at higher rents than
previously in effect.
o Directly manage properties to maximize the potential for tenant
retention. We provide property management services ourselves, rather
than contracting for this service, to maintain awareness of and
responsiveness to tenant needs. We and our properties also benefit
from cost efficiencies produced by an experienced work force
attentive to preventive maintenance and energy management and from
our continuing programs to assure that our property management
personnel at all levels remain aware of their important role in
tenant relations. Our philosophy has not been to invest significant
capital in technology, but to form alliances to provide better
tenant service and realize potential incremental revenues with
little additional capital investment.
o Replace tenants quickly at best available market terms and lowest
possible transaction costs. We believe that we have a competitive
advantage in attracting new tenants and achieving rental rates at
the higher end of our markets as a result of our well located, well
designed and well maintained properties, our reputation for high
quality building services and responsiveness to tenants, and our
ability to offer expansion and relocation alternatives within our
submarkets.
The Hotel Properties
To assist in maintaining our status as a REIT, we lease our three hotel
properties to ZL Hotel LLC pursuant to a lease that entitles us to a percentage
of the gross receipts of our hotel properties. Mr. Mortimer B. Zuckerman, the
Chairman of our board of directors, and Edward H. Linde, our President and Chief
Executive Officer, are the sole member-managers of, and have a 9.8% economic
interest in, ZL Hotel LLC; two unaffiliated public charities own the remaining
90.2% economic interest. Marriott International, Inc. manages our hotel
properties under the Marriott(R) name pursuant to a management agreement with ZL
Hotel LLC. Under the REIT requirements, revenues from a hotel are not considered
to be rental income for purposes of certain income tests, which a REIT must
meet. Accordingly, in order to maintain our qualification as a REIT, we have
entered into the participating leases with ZL Hotel LLC described above to
provide revenue that qualifies as rental income under the REIT requirements.
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Competition
We compete in the leasing of office and industrial space with a
considerable number of other real estate companies, some of which may have
greater marketing and financial resources. In addition, our hotel properties
compete for guests with other hotels, some of which may have greater marketing
and financial resources than are available to us and Marriott International,
Inc.
Seasonality
Our hotel properties traditionally have experienced significant
seasonality in their operating income, with weighted average net operating
income by quarter over the three years 1998 through 2000 as follows:
First Quarter Second Quarter Third Quarter Fourth Quarter
- ------------- -------------- ------------- --------------
14% 29% 32% 25%
Our other properties have not traditionally experienced significant
seasonality.
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RISK FACTORS
Set forth below are the risks that we believe are material to our stockholders.
We refer to the shares of our common and preferred stock and the units of
limited partnership interest in Boston Properties Limited Partnership together
as our "securities," and the investors who own shares and/or units as our
"securityholders." This section includes or refers to certain forward-looking
statements. You should refer to the explanation of the qualifications and
limitations on such forward-looking statements beginning on page 32.
We may be unable to manage effectively our rapid growth and expansion into new
markets.
We have grown rapidly since our initial public offering in June 1997 and
have entered or significantly expanded our real estate holdings in new markets.
If we do not effectively manage our rapid growth, we may not be able to make
expected distributions to our securityholders and the value of our securities
may decline.
Our performance and value are subject to risks associated with our real estate
assets and with the real estate industry.
Our economic performance and the value of our real estate assets, and
consequently the value of our securities, are subject to the risk that if our
office, industrial, and hotel properties do not generate revenues sufficient to
meet our operating expenses, including debt service and capital expenditures,
our cash flow and ability to pay distributions to our securityholders will be
adversely affected. The following factors, among others, may adversely affect
the revenues generated by our office, industrial, and hotel properties:
o downturns in the national, regional and local economic climate;
o competition from other office, industrial, hotel and other
commercial buildings;
o local real estate market conditions, such as oversupply or reduction
in demand for office, industrial, hotel or other commercial space;
o changes in interest rates and availability of financing;
o vacancies or inability to rent spaces on favorable terms;
o increased operating costs, including insurance premiums, utilities,
and real estate taxes; and
o civil disturbances, earthquakes and other natural disasters or acts
of God that may result in uninsured or underinsured losses.
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Significant expenditures associated with each investment, such as debt
service payments, real estate taxes, insurance and maintenance costs are
generally not reduced when circumstances cause a reduction in revenues from a
property.
We are dependent upon the economic climates of our four core markets-Boston,
Washington, D.C., midtown Manhattan and San Francisco.
A majority of our revenues are derived from properties located in our four
core markets- Boston, Washington, D.C., midtown Manhattan and San Francisco. A
downturn in the economies of these core markets, or the impact that a downturn
in the overall national economy may have upon these economies, could result in
reduced demand for office space. Because our portfolio consists primarily of
office buildings (as compared to a more diversified real estate portfolio), a
decrease in demand for office space in turn could adversely affect our result
from operations. Additionally, there are submarkets within our core markets that
are dependent upon a limited number of industries and a significant downturn in
one or more of these industries could also adversely affect our results from
operations.
Our investment in property development may be more costly than anticipated.
We have a significant development pipeline and intend to continue to
develop and substantially renovate office, industrial and hotel properties. Our
current and future development and construction activities may be exposed to the
following risks:
o we may be unable to proceed with the development of properties
because we cannot obtain financing with favorable terms;
o we may incur construction costs for a development project which
exceed our original estimates due to increased materials, labor or
other costs, which could make completion of the project uneconomical
because we may not be able to increase rents to compensate for the
increase in construction costs;
o we may be unable to obtain, or face delays in obtaining, required
zoning, land-use, building, occupancy, and other governmental
permits and authorizations, which could result in increased costs
and could require us to abandon our activities entirely with respect
to a project;
o we may abandon development opportunities after we begin to explore
them and as a result we may fail to recover expenses already
incurred;
o we may expend funds on and devote management's time to projects
which we do not complete;
o we may be unable to complete construction and leasing of a property
on schedule, resulting in increased debt service expense and
construction or renovation costs;
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o we may lease developed properties at below expected rental rates;
and
o occupancy rates and rents at newly completed properties may
fluctuate depending on a number of factors, including market and
economic conditions, and may result in our investment not being
profitable.
Our use of joint ventures may limit our flexibility with jointly owned
investments.
We intend to develop and acquire properties in joint ventures with other
persons or entities when circumstances warrant the use of this structure. The
use of a joint venture vehicle creates a risk of a dispute with our joint
venturer's and a risk that we will have to acquire a joint venturer's interest
in a development for a price at which or at a time when we would otherwise not
purchase such interest. Our joint venture partners may have different objectives
from us regarding the appropriate timing and pricing of any sale or refinancing
of properties.
In 2000, we entered into a joint venture with the New York State Common
Retirement Fund which has agreed to contribute up to $270 million to acquire and
develop properties with us. During the three-year term of this joint venture,
the New York State Common Retirement Fund has the right to participate in all of
our acquisition opportunities that meet agreed criteria and any development
projects that we choose to pursue with an institutional partner.
We face risks associated with property acquisitions.
Since our initial public offering, we have made large acquisitions of
properties and portfolios of properties. We intend to continue to acquire
properties and portfolios of properties, including large portfolios that could
continue to significantly increase our size and alter our capital structure. Our
acquisition activities and their success may be exposed to the following risks:
o we may be unable to acquire a desired property because of
competition from other well capitalized real estate investors,
including both publicly traded real estate investment trusts and
institutional investment funds;
o even if we enter into an acquisition agreement for a property, it is
usually subject to customary conditions to closing, including
completion of due diligence investigations to our satisfaction;
o even if we are able to acquire a desired property, competition from
other real estate investors may significantly increase the purchase
price;
o we may be unable to finance acquisitions on favorable terms;
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o acquired properties may fail to perform as we expected in analyzing
our investments;
o our estimates of the costs of repositioning or redeveloping acquired
properties may be inaccurate;
o acquired properties may be located in new markets where we may face
risks associated with a lack of market knowledge or understanding of
the local economy, lack of business relationships in the area and
unfamiliarity with local governmental and permitting procedures; and
o we may be unable to quickly and efficiently integrate new
acquisitions, particularly acquisitions of portfolios of properties,
into our existing operations, and as a result our results of
operations and financial condition could be adversely affected.
We may acquire properties subject to liabilities and without any recourse,
or with only limited recourse, with respect to unknown liabilities. As a result,
if a liability were asserted against us based upon those properties, we might
have to pay substantial sums to settle it, which could adversely affect our cash
flow. Unknown liabilities with respect to properties acquired might include:
o liabilities for clean-up of undisclosed environmental contamination;
o claims by tenants, vendors or other persons dealing with the former
owners of the properties;
o liabilities incurred in the ordinary course of business; and
o claims for indemnification by general partners, directors, officers
and others indemnified by the former owners of the properties.
We face potential difficulties or delays renewing leases or re-leasing space.
We derive most of our income from rent received from our tenants. If a
tenant experiences a downturn in its business or other types of financial
distress, it may be unable to make timely rental payments. Also, when our
tenants decide not to renew their leases, we may not be able to relet the space.
Even if tenants decide to renew, the terms of renewals or new leases, including
the cost of required renovations or concessions to tenants, may be less
favorable than current lease terms. As a result, our cash flow could decrease
and our ability to make distributions to our securityholders could be adversely
affected.
We face potential adverse effects from major tenants' bankruptcies or
insolvencies.
The bankruptcy or insolvency of a major tenant may adversely affect the
income produced by our properties. Although we have not experienced material
losses from tenant
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bankruptcies or insolvencies in the past, our tenants could file for bankruptcy
protection or become insolvent in the future. We cannot evict a tenant solely
because of its bankruptcy. On the other hand, a court might authorize the tenant
to reject and terminate its lease with us. In such case, our claim against the
bankrupt tenant for unpaid, future rent would be subject to a statutory cap that
might be substantially less than the remaining rent actually owed under the
lease, and, even so, our claim for unpaid rent would likely not be paid in full.
This shortfall could adversely affect our cash flow and results from operations.
We may have difficulty selling our properties which may limit our flexibility.
Large and high quality office, industrial and hotel properties like the
ones that we own can be hard to sell, especially if local market conditions are
poor. This may limit our ability to change our portfolio promptly in response to
changes in economic or other conditions. In addition, federal tax laws limit our
ability to sell properties that we have owned for fewer than four years, and
this may affect our ability to sell properties without adversely affecting
returns to our stockholders. These restrictions reduce our ability to respond to
changes in the performance of our investments and could adversely affect our
financial condition and results of operations.
Our properties face significant competition.
We face significant competition from developers, owners and operators of
office, industrial and other commercial real estate. Substantially all of our
properties face competition from similar properties in the same market. Such
competition may effect our ability to attract and retain tenants and may reduce
the rents we are able to charge. These competing properties may have vacancy
rates higher than our properties, which may result in their owners being willing
to make space available at lower prices than the space in our properties.
Because we own three hotel properties, we face the risks associated with the
hospitality industry.
We own three hotel properties. We lease these hotel properties to ZL Hotel
LLC, in which Mortimer B. Zuckerman, Chairman of our board of directors, and
Edward H. Linde, our President and Chief Executive Officer, are the sole
member-managers and have a 9.8% economic interest; two unaffiliated public
charities have a 90.2% economic interest in ZL Hotel LLC. Marriott
International, Inc. manages these hotel properties under the Marriott(R) name
pursuant to a management agreement with ZL Hotel LLC. ZL Hotel LLC pays us a
percentage of the gross receipts that the hotel properties receive. Because the
lease payments we receive are based on a participation in the gross receipts of
the hotels, if the hotels do not generate sufficient receipts, our cash flow
would be decreased, which could reduce the amount of cash available for
distribution to our securityholders. The following factors, among others, are
common to the hotel industry, and may reduce the receipts generated by our hotel
properties:
o our hotel properties compete for guests with other hotels, a number
of which have greater marketing and financial resources than our
hotel-operating business partners;
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o if there is an increase in operating costs resulting from inflation
and other factors, our hotel-operating business partners may not be
able to offset such increase by increasing room rates;
o our hotel properties are subject to the fluctuating and seasonal
demands of business travelers and tourism; and
o our hotel properties are subject to general and local economic
conditions that may affect demand for travel in general.
Compliance or failure to comply with the Americans with Disabilities Act and
other similar laws could result in substantial costs.
The Americans with Disabilities Act generally requires that public
buildings, including office buildings and hotels, be made accessible to disabled
persons. Noncompliance could result in imposition of fines by the federal
government or the award of damages to private litigants. If, pursuant to the
Americans with Disabilities Act, we are required to make substantial alterations
and capital expenditures in one or more of our properties, including the removal
of access barriers, it could adversely affect our financial condition and
results of operations, as well as the amount of cash available for distribution
to our securityholders.
We may also incur significant costs complying with other regulations. Our
properties are subject to various federal, state and local regulatory
requirements, such as state and local fire and life safety requirements. If we
fail to comply with these requirements, we could incur fines or private damage
awards. We believe that our properties are currently in material compliance with
all of these regulatory requirements. However, we do not know whether existing
requirements will change or whether compliance with future requirements will
require significant unanticipated expenditures that will affect our cash flow
and results from operations.
Some potential losses are not covered by insurance.
We carry comprehensive liability, fire, flood, extended coverage and
rental loss insurance, as applicable, on our properties. We believe our coverage
is of the type and amount customarily obtained for or by an owner of similar
properties. We believe all of our properties are adequately insured. However,
there are certain types of losses, such as from wars or catastrophic acts of
nature, for which we cannot obtain insurance or for which we cannot obtain
insurance at a reasonable cost. In the event of an uninsured loss or a loss in
excess of our insurance limits, we could lose both the revenues generated from
the affected property and the capital we have invested in the affected property.
We would, however, remain obligated to repay any mortgage indebtedness or other
obligations related to the property. Any such loss could materially and
adversely affect our business and financial condition and results of operations.
We carry earthquake insurance on our properties located in areas known to
be subject to earthquakes in an amount and subject to deductions which we
believe are commercially
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reasonable. However, the amount of our earthquake insurance coverage may not be
sufficient to cover losses from earthquakes. In addition, we may discontinue
earthquake insurance on some or all of our properties in the future if the
premiums exceed our estimation of the value of the coverage discounted for the
risk of loss. If we experience a loss which is uninsured or which exceeds policy
limits, we could lose the capital invested in the damaged properties as well as
the anticipated future revenue from those properties. Moreover, if the damaged
properties are subject to recourse indebtedness, we would continue to be liable
for the indebtedness, even if the properties were irreparable. Any such loss
could materially and adversely affect our business and financial condition and
results from operations.
Potential liability for environmental contamination could result in substantial
costs.
Under federal, state and local environmental laws, ordinances and
regulations, we may be required to investigate and clean up the effects of
releases of hazardous or toxic substances or petroleum products at our
properties, regardless of our knowledge or responsibility, simply because of our
current or past ownership or operation of the real estate. If unidentified
environmental problems arise, we may have to make substantial payments which
could adversely affect our cash flow and our ability to make distributions to
our securityholders because:
o as owner or operator we may have to pay for property damage and for
investigation and clean-up costs incurred in connection with the
contamination;
o the law typically imposes clean-up responsibility and liability
regardless of whether the owner or operator knew of or caused the
contamination;
o even if more than one person may be responsible for the
contamination, each person who shares legal liability under the
environmental laws may be held responsible for all of the clean-up
costs; and
o governmental entities and third parties may sue the owner or
operator of a contaminated site for damages and costs.
These costs could be substantial and in extreme cases could exceed the
value of the contaminated property. The presence of hazardous or toxic
substances or petroleum products or the failure to properly remediate
contamination may materially and adversely affect our ability to borrow against,
sell or rent an affected property. In addition, applicable environmental laws
create liens on contaminated sites in favor of the government for damages and
costs it incurs in connection with a contamination.
Environmental laws also govern the presence, maintenance and removal of
asbestos. Such laws require that owners or operators of buildings containing
asbestos:
o properly manage and maintain the asbestos;
o notify and train those who may come into contact with asbestos; and
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o undertake special precautions, including removal or other abatement,
if asbestos would be disturbed during renovation or demolition of a
building.
Such laws may impose fines and penalties on building owners or operators who
fail to comply with these requirements and may allow third parties to seek
recovery from owners or operators for personal injury associated with exposure
to asbestos fibers.
Some of our properties are located in urban and industrial areas where
fill or current or historic industrial uses of the areas have caused site
contamination. Independent environmental consultants have conducted Phase I
environmental site assessments at all of our properties. These assessments
included, at a minimum, a visual inspection of the properties and the
surrounding areas, an examination of current and historical uses of the
properties and the surrounding areas and a review of relevant state, federal and
historical documents. Where appropriate, on a property-by-property basis, these
consultants have conducted additional testing, including sampling for asbestos,
for lead in drinking water, for soil contamination where underground storage
tanks are or were located or where other past site usages create a potential
environmental problem, and for contamination in groundwater. Even though these
environmental assessments have been conducted, there is still the risk that:
o the environmental assessments and updates did not identify all
potential environmental liabilities;
o a prior owner created a material environmental condition that is not
known to us or the independent consultants preparing the
assessments;
o new environmental liabilities have developed since the environmental
assessments were conducted; and
o future uses or conditions such as changes in applicable
environmental laws and regulations could result in environmental
liability for us.
We face risks associated with the use of debt to fund acquisitions and
developments, including refinancing risk.
We are subject to the risks normally associated with debt financing,
including the risk that our cash flow will be insufficient to meet required
payments of principal and interest. We anticipate that only a small portion of
the principal of our debt will be repaid prior to maturity. Therefore, we are
likely to need to refinance at least a portion of our outstanding debt as it
matures. There is a risk that we may not be able to refinance existing debt or
that the terms of any refinancing will not be as favorable as the terms of the
existing debt. If principal payments due at maturity cannot be refinanced,
extended or repaid with proceeds from other sources, such as new equity capital,
our cash flow will not be sufficient to repay all maturing debt in years when
significant "balloon" payments come due.
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Rising interest rates would increase our interest costs.
We currently have, and may incur more, indebtedness that bears interest at
variable rates. Accordingly, if interest rates increase, so will our interest
costs, which would adversely affect our cash flow, our ability to service debt
and our ability to make distributions to our securityholders.
We have no corporate limitation on the amount of debt we can incur.
Our management and board of directors have discretion under our
certificate of incorporation and bylaws to increase the amount of our
outstanding debt. Our decisions with regard to the incurrence and maintenance of
debt are based on available investment opportunities for which capital is
required, the cost of debt in relation to such investment opportunities, whether
secured or unsecured debt is available, the effect of additional debt on
existing financial ratios and the maturity of the proposed new debt relative to
maturities of existing debt. We could become more highly leveraged, resulting in
increased debt service costs that could adversely affect our cash flow and the
amount available for payment of dividends. If we increase our debt we may also
increase the risk we will be unable to repay our debt.
Our financial covenants could adversely affect our financial condition.
The mortgages on our properties contain customary negative covenants such
as those that limit our ability, without the prior consent of the lender, to
further mortgage the applicable property or to discontinue insurance coverage.
In addition, our credit facilities contain certain customary restrictions,
requirements and other limitations on our ability to incur indebtedness,
including total debt to assets ratios, secured debt to total asset ratios, debt
service coverage ratios and minimum ratios of unencumbered assets to unsecured
debt which we must maintain. Our ability to borrow under our credit facilities
is subject to compliance with our financial and other covenants. We rely on
borrowings under our credit facilities to finance acquisitions and development
activities and for working capital, and if we are unable to borrow under our
credit facilities, or to refinance existing indebtedness our financial condition
and results of operations would likely be adversely impacted. If we breach
covenants in our debt agreements, the lender can declare a default and require
us to repay the debt immediately and, if the debt is secured, can immediately
take possession of the property securing the loan. In addition, our credit
facilities are cross-defaulted to our other indebtedness, which would give the
lenders under our other credit facilities the right also to declare a default
and require immediate repayment.
Our degree of leverage could limit our ability to obtain additional financing or
affect the market price of our common stock.
Debt to Market Capitalization Ratio is a measure of our total debt as a
percentage of the aggregate of our total debt plus the market value of our
outstanding securities. Our Debt to Market Capitalization Ratio was
approximately 38.7% as of December 31, 2000. To the extent that our board of
directors uses our Debt to Market Capitalization Ratio as a measure of
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appropriate leverage, the total amount of our debt could increase as our common
stock price increases, even if we may not have a corresponding increase in our
ability to service or repay the debt. Our degree of leverage could affect our
ability to obtain additional financing for working capital, capital
expenditures, acquisitions, development or other general corporate purposes. Our
degree of leverage could also make us more vulnerable to a downturn in business
or the economy generally. There is a risk that changes in our Debt to Market
Capitalization Ratio, which is in part a function of our stock price, or our
ratio of indebtedness to other measures of asset value used by financial
analysts may have an adverse effect on the market price of our common stock.
Further issuances of equity securities may be dilutive to current stockholders.
The interests of our existing stockholders could be diluted if additional
equity securities are issued to finance future developments and acquisitions
instead of incurring additional debt. Our ability to execute our business
strategy depends on our access to an appropriate blend of debt financing,
including unsecured lines of credit and other forms of secured and unsecured
debt, and equity financing, including common and preferred equity.
Failure to qualify as a real estate investment trust would cause us to be taxed
as a corporation, which would substantially reduce funds available for payment
of dividends.
If we fail to qualify as a real estate investment trust for federal income
tax purposes, we will be taxed as a corporation. We believe that we are
organized and qualified as a real estate investment trust, and intend to operate
in a manner that will allow us to continue to qualify as a real estate
investment trust. However, we cannot assure you that we are qualified as such,
or that we will remain qualified as such in the future. This is because
qualification as a real estate investment trust involves the application of
highly technical and complex provisions of the Internal Revenue Code as to which
there are only limited judicial and administrative interpretations, and involves
the determination of facts and circumstances not entirely within our control. In
addition, future legislation, new regulations, administrative interpretations or
court decisions may significantly change the tax laws or the application of the
tax laws with respect to qualification as a real estate investment trust for
federal income tax purposes or the federal income tax consequences of such
qualification.
If we fail to qualify as a real estate investment trust we will face
serious tax consequences that will substantially reduce the funds available for
payment of dividends for each of the years involved because:
o we would not be allowed a deduction for dividends paid to
stockholders in computing our taxable income and would be subject to
federal income tax at regular corporate rates;
o we also could be subject to the federal alternative minimum tax and
possibly increased state and local taxes;
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o unless we are entitled to relief under statutory provisions, we
could not elect to be subject to tax as a real estate investment
trust for four taxable years following the year during which we were
disqualified; and
o all dividends will be subject to tax as ordinary income to the
extent of our current and accumulated earnings and profits.
In addition, if we fail to qualify as a real estate investment trust, we
will no longer be required to pay dividends. As a result of all these factors,
our failure to qualify as a real estate investment trust could impair our
ability to expand our business and raise capital, and would adversely affect the
value of our common stock.
In order to maintain our real estate investment trust status, we may be forced
to borrow funds on a short-term basis during unfavorable market conditions.
In order to maintain our real estate investment trust status, we may need
to borrow funds on a short-term basis to meet the real estate investment trust
distribution requirements, even if the then prevailing market conditions are not
favorable for these borrowings. To qualify as a real estate investment trust, we
generally must distribute to our stockholders at least 95% of our net taxable
income each year, excluding capital gains. In addition, we will be subject to a
4% nondeductible excise tax on the amount, if any, by which dividends paid by us
in any calendar year are less than the sum of 85% of our ordinary income, 95% of
our capital gain net income and 100% of our undistributed income from prior
years. We may need short-term debt to fund required distributions as a result of
differences in timing between the actual receipt of income and the recognition
of income for federal income tax purposes, or the effect of non-deductible
capital expenditures, the creation of reserves or required debt or amortization
payments.
Limits on changes in control may discourage takeover attempts beneficial to
stockholders.
Provisions in our certificate of incorporation and bylaws, our shareholder
rights agreement and the limited partnership agreement of Boston Properties
Limited Partnership, as well as provisions of the Internal Revenue Code and
Delaware corporate law, may:
o delay or prevent a change of control over us or a tender offer, even
if such action might be beneficial to our stockholders; and
o limit our stockholders' opportunity to receive a potential premium
for their shares of common stock over then-prevailing market prices.
Stock Ownership Limit
Primarily to facilitate maintenance of our qualification as a real estate
investment trust, our corporate charter generally prohibits ownership, directly,
indirectly or beneficially, by any single stockholder of more than 6.6% of the
number of outstanding shares of any class or series of our equity stock. We
refer to this limitation as the "ownership limit." Our board of directors
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may waive or modify the ownership limit with respect to one or more persons if
it is satisfied that ownership in excess of this limit will not jeopardize our
status as a real estate investment trust for federal income tax purposes. In
addition, under our corporate charter each of Messrs. Zuckerman and Linde, along
with their family and affiliates, as well as, in general, pension plans and
mutual funds, may actually and beneficially own up to 15% of the number of
outstanding shares of any class or series of our equity common stock. Shares
owned in violation of the ownership limit will be subject to the loss of rights
to distributions and voting and other penalties. The ownership limit may have
the effect of inhibiting or impeding a change in control.
Boston Properties Limited Partnership Agreement
We have agreed in the limited partnership agreement of Boston Properties
Limited Partnership not to engage in business combinations unless limited
partners of Boston Properties Limited Partnership other than Boston Properties,
Inc. receive, or have the opportunity to receive, the same consideration for
their partnership interests as holders of our common stock in the transaction.
If these limited partners do not receive such consideration, we cannot engage in
the transaction unless 75% of these limited partners vote to approve the
transaction. In addition, we have agreed in the limited partnership agreement of
Boston Properties Limited Partnership that we will not consummate business
combinations in which we received the approval of our stockholders unless these
limited partners are also allowed to vote and the transaction would have been
approved had these limited partners been able to vote as stockholders on the
transaction. Therefore, if our stockholders approve a business combination that
requires a vote of stockholders, the partnership agreement requires the
following before we can consummate the transaction:
o holders of interests in Boston Properties Limited Partnership
(including Boston Properties, Inc.) must vote on the matter;
o Boston Properties, Inc. must vote its partnership interests in the
same proportion as our stockholders voted on the transaction; and
o the result of the vote of holders of interests in Boston Properties
Limited Partnership must be such that had such vote been a vote of
stockholders, the business combination would have been approved.
As a result of these provisions, a potential acquirer may be deterred from
making an acquisition proposal and we may be prohibited by contract from
engaging in a proposed business combination even though our stockholders approve
of the combination.
Shareholder Rights Plan
We have adopted a shareholder rights plan. Under the terms of this plan,
we can in effect prevent a person or group from acquiring more than 15% of the
outstanding shares of our common stock, because, unless we approve of the
acquisition, after the person acquires more than 15% of our outstanding common
stock, all other stockholders will have the right to purchase
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securities from us at a price that is less than their then fair market value,
which would substantially reduce the value and influence of the stock owned by
the acquiring person. Our board of directors can prevent the plan from operating
by approving of the transaction, which gives us significant power to approve or
disapprove of the efforts of a person or group to acquire a large interest in
us.
We may change our policies without obtaining the approval of our stockholders.
Our operating and financial policies, including our policies with respect
to acquisitions, growth, operations, indebtedness, capitalization and dividends,
are determined by our board of directors. Accordingly, as a stockholder, you
will have little direct control over these policies.
Our success depends on key personnel whose continued service is not guaranteed.
We depend on the efforts of key personnel, particularly Mortimer B.
Zuckerman, Chairman of our board of directors, and Edward H. Linde, our
President and Chief Executive Officer. Among the reasons that Messrs. Zuckerman
and Linde are important to our success is that each has a national reputation
which attracts business and investment opportunities and assists us in
negotiations with lenders. If we lost their services, our relationships with
lenders, potential tenants and industry personnel would diminish.
Our other executive officers who serve as managers of our offices have
strong regional reputations. Their reputations aid us in identifying
opportunities, having opportunities brought to us, and negotiating with tenants
and build-to-suit prospects. While we believe that we could find replacements
for these key personnel, the loss of their services could materially and
adversely effect our operations because of diminished relationships with
lenders, prospective tenants and industry personnel.
Mr. Zuckerman has substantial outside business interests, including
serving as trustee for New York University, a trustee of Memorial
Sloan-Kettering Cancer Institute, a trustee of the Institute for Advanced
Studies at Princeton and a member of the Council on Foreign Relations and the
International Institute for Strategic Studies. He is also Chairman and
Editor-in-Chief of U.S. News & World Report, Chairman and Co-Publisher of the
New York Daily News and Chairman of the Board of Applied Graphics Technologies
and a member of the Board of Directors of Chase Manhattan Corporation National
Advisory Board, Loews Cineplex and WNET/Channel. Such outside business interests
could interfere with his ability to devote time to our business and affairs.
Over the last twenty years, Mr. Zuckerman has devoted a significant portion,
although not a majority, of his business time to the affairs of Boston
Properties and its predecessors. We have no assurance that he will continue to
devote any specific portion of his time to us, although at present, he has no
commitments which would prevent him from maintaining his current level of
involvement with our business.
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Conflicts of interest exist with holders of interests in Boston Properties
Limited Partnership.
Sales of properties and repayment of related indebtedness will have
different effects on holders of interests in Boston Properties Limited
Partnership than on our stockholders.
Some holders of interests in Boston Properties Limited Partnership,
including Messrs. Zuckerman and Linde, would incur adverse tax consequences upon
the sale of certain of our properties and on the repayment of related debt which
differ from the tax consequences to us and our stockholders. Consequently, such
holders of interests in Boston Properties Limited Partnership may have different
objectives regarding the appropriate pricing and timing of any such sale or
repayment of debt. While we have exclusive authority under the limited
partnership agreement of Boston Properties Limited Partnership to determine when
to refinance or repay debt or whether, when, and on what terms to sell a
property, subject, in the case of certain properties, to the contractual
commitments described below, any such decision would require the approval of our
board of directors. As directors and executive officers, Messrs. Zuckerman and
Linde have substantial influence with respect to any such decision. Their
influence could be exercised in a manner inconsistent with the interests of
some, or a majority, of our stockholders, including in a manner which could
prevent completion of a sale of a property or the repayment of indebtedness.
Agreement not to sell some properties.
Under the terms of the limited partnership agreement of Boston Properties
Limited Partnership, we have agreed not to sell or otherwise transfer some of
our properties, prior to specified dates, in any transaction that would trigger
taxable income, without first obtaining the consent of Messrs. Zuckerman and
Linde. However, we are not required to obtain their consent if, during the
applicable period, each of them does not hold at least 30% of his original
interests in Boston Properties Limited Partnership. In addition, we have entered
into similar agreements with respect to other properties that we have acquired
in exchange for interests in Boston Properties Limited Partnership. There are a
total of 35 properties subject to these restrictions, and those 35 properties
are estimated to have accounted for approximately 55% of our total revenue for
the year ended December 31, 2000.
Boston Properties Limited Partnership has also entered into agreements
providing Messrs. Zuckerman and Linde and others with the right to guarantee
specific amounts of indebtedness and, in the event that the specific
indebtedness they guarantee is repaid or reduced, additional and/or substitute
indebtedness. These agreements may hinder actions that we may otherwise desire
to take to repay or refinance guaranteed indebtedness because we would be
required to make payments to the beneficiaries of such agreements if we violate
these agreements.
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Messrs. Zuckerman and Linde will continue to engage in other activities.
Messrs. Zuckerman and Linde have a broad and varied range of investment
interests. Either one could acquire an interest in a company which is not
currently involved in real estate investment activities but which may acquire
real property in the future. However, pursuant to Mr. Linde's employment
agreement and Mr. Zuckerman's non-compete agreement, Messrs. Zuckerman and Linde
will not, in general, have management control over such companies and,
therefore, they may not be able to prevent one or more such companies from
engaging in activities that are in competition with our activities.
Changes in market conditions could adversely affect the market price of our
common stock.
As with other publicly traded equity securities, the value of our common
stock depends on various market conditions which may change from time to time.
Among the market conditions that may affect the value of our common stock are
the following:
o the extent of investor interest in us;
o the general reputation of real estate investment trusts and the
attractiveness of our equity securities in comparison to other
equity securities, including securities issued by other real
estate-based companies;
o our financial performance; and
o general stock and bond market conditions.
The market value of our common stock is based primarily upon the market's
perception of our growth potential and our current and potential future earnings
and cash dividends. Consequently, our common stock may trade at prices that are
higher or lower than our net asset value per share of common stock. If our
future earnings or cash dividends are less than expected, it is likely that the
market price of our common stock will diminish.
Market interest rates may have an effect on the value of our common stock.
One of the factors that investors may consider important in deciding
whether to buy or sell shares of a real estate investment trust is the dividend
with respect to such real estate investment trust's shares as a percentage of
the price of such shares, relative to market interest rates. If market interest
rates go up, prospective purchasers of shares of our common stock may expect a
higher distribution rate on our common stock. Higher market interest rates would
not, however, result in more funds for us to distribute and, to the contrary,
would likely increase our borrowing costs and potentially decrease funds
available for distribution. Thus, higher market interest rates could cause the
market price of our common stock to go down.
24
<PAGE>
The number of shares available for future sale could adversely affect the market
price of our stock.
As part of our initial public offering and since then we have completed
many private placement transactions where shares of capital stock of Boston
Properties, Inc. or interests in Boston Properties Limited Partnership were
issued to owners of properties we acquired or to institutional investors. This
common stock, or common stock issuable on conversion of our preferred stock or
in exchange for such interests in Boston Properties Limited Partnership, may be
sold in the public market over time pursuant to registration rights we granted
to these investors. Additional common stock reserved under our employee benefit
and other incentive plans, including stock options, may also be sold in the
public at some time in the future. Future sales of our common stock in the
public securities markets could adversely affect the price of our common stock.
We cannot predict the effect the perception in the market that such sales may
occur will have on the market price of our common stock.
We did not obtain new owner's title insurance policies in connection with
properties acquired during our initial public offering.
We acquired many of our properties from our predecessors at the completion
of our initial public offering in June 1997. Before we acquired these properties
each of them was insured by a title insurance policy. We did not, however,
obtain new owner's title insurance policies in connection with the acquisition
of such properties. Nevertheless, because in many instances we acquired these
properties indirectly by acquiring ownership of the entity which owned the
property and those owners remain in existence as our subsidiaries, some of these
title insurance policies may continue to benefit us. Many of these title
insurance policies may be for amounts less than the current values of the
applicable properties. If there was a title defect related to any of these
properties, or to any of the properties acquired at the time of our initial
public offering, that is no longer covered by a title insurance policy, we could
lose both our capital invested in and our anticipated profits from such
property.
We have obtained title insurance policies for all properties that we have
acquired after our initial public offering.
We face possible adverse changes in tax and environmental laws.
Generally, we pass through to our tenants costs resulting from increases
in real estate taxes. However, we generally do not pass through to our tenants
increases in income, service or transfer taxes. Similarly, changes in laws
increasing the potential liability for environmental conditions existing on our
properties or increasing the restrictions on discharges or other conditions may
result in significant unanticipated expenditures. These increased costs could
adversely affect our financial condition and results of operations and the
amount of cash available for payment of dividends.
25
<PAGE>
Item 2. Properties
At December 31, 2000, our portfolio consisted of 145 properties totaling
37.9 million net rentable square feet, including 15 properties under
construction. Our properties consisted of 134 office properties, including 103
Class A office buildings and 31 properties that support both office and
technical uses; eight industrial properties; and three hotels. In addition, we
own or control an additional 49 parcels of land for future development. The
following table sets forth information relating to the properties we owned at
December 31, 2000:
<TABLE>
<CAPTION>
Number of Net Rentable
Properties Location Buildings Square Feet
- ---------- -------- ---------- -----------
<S> <C> <C> <C>
Class A Office
The Prudential Center Boston, MA 3 2,140,832
280 Park Avenue New York, NY 1 1,160,622
599 Lexington Avenue New York, NY 1 1,000,497
Embarcadero Center Four San Francisco, CA 1 935,519
Riverfront Plaza Richmond, VA 1 894,015
Embarcadero Center One San Francisco, CA 1 821,009
Embarcadero Center Two San Francisco, CA 1 779,172
Embarcadero Center Three San Francisco, CA 1 770,969
875 Third Avenue New York, NY 1 690,126
Democracy Center Bethesda, MD 3 680,475
100 East Pratt Street Baltimore, MD 1 635,323
Two Independence Square Washington, D.C. 1 579,665
Metropolitan Square (51% ownership) Washington, D.C. 1 578,340
Candler Building Baltimore, MD 1 537,363
Reservoir Place Waltham, MA 1 529,991
The Gateway South San Francisco, CA 2 506,395
West Tower San Francisco, CA 1 475,120
One Tower Center East Brunswick, NJ 1 417,903
One Freedom Square (25% ownership) Reston, VA 1 408,773
Market Square North (50% ownership) Washington, D.C. 1 401,255
Capital Gallery Washington, D.C. 1 396,776
140 Kendrick Street (25% ownership) Needham, MA 3 381,000
One Independence Square Washington, D.C. 1 337,794
265 Franklin Street (35% ownership) Boston, MA 1 325,699
One Reston Overlook Reston, VA 1 312,685
2300 N Street Washington, D.C. 1 276,930
NIMA Building Reston, VA 1 263,870
Reston Corporate Center Reston, VA 2 261,046
Lockheed Martin Building Reston, VA 1 255,244
200 West Street Waltham, MA 1 248,341
500 E Street, N. W. Washington, D.C. 1 242,769
510 Carnegie Center Princeton, NJ 1 234,160
One Cambridge Center Cambridge, MA 1 215,385
Sumner Square Washington, D.C. 1 209,507
University Place Cambridge, MA 1 195,282
Eight Cambridge Center Cambridge, MA 1 177,226
Orbital Sciences, Buildings One and Three Dulles, VA 2 174,832
Newport Office Park Quincy, MA 1 168,829
1301 New York Avenue Washington, D.C. 1 168,371
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
Number of Net Rentable
Properties Location Buildings Square Feet
- ---------- -------- ---------- -----------
<S> <C> <C> <C>
Lexington Office Park Lexington, MA 2 167,293
191 Spring Street Lexington, MA 1 162,700
206 Carnegie Center Princeton, NJ 1 161,763
210 Carnegie Center Princeton, NJ 1 158,610
10 & 20 Burlington Mall Road Burlington, MA 2 156,416
Ten Cambridge Center Cambridge, MA 1 152,664
214 Carnegie Center Princeton, NJ 1 152,214
506 Carnegie Center Princeton, NJ 1 150,888
212 Carnegie Center Princeton, NJ 1 150,069
Federal Reserve San Francisco, CA 1 149,592
Two Reston Overlook Reston, VA 1 131,594
Waltham Office Center Waltham, MA 3 131,479
508 Carnegie Center Princeton, NJ 1 131,085
202 Carnegie Center Princeton, NJ 1 128,885
101 Carnegie Center Princeton, NJ 1 124,049
91 Hartwell Avenue Lexington, MA 1 122,135
504 Carnegie Center Princeton, NJ 1 121,990
Montvale Center Gaithersburg, MD 1 120,815
502 Carnegie Center Princeton, NJ 1 116,374
Three Cambridge Center Cambridge, MA 1 107,484
104 Carnegie Center Princeton, NJ 1 102,758
201 Spring Street Lexington, MA 1 102,500
The Arboretum Reston, VA 1 95,584
Bedford Business Park Bedford, MA 1 90,000
Eleven Cambridge Center Cambridge, MA 1 79,616
33 Hayden Avenue Lexington, MA 1 79,564
Decoverly Two Rockville, MD 1 77,747
Decoverly Three Rockville, MD 1 77,040
170 Tracer Lane Waltham, MA 1 73,203
105 Carnegie Center Princeton, NJ 1 69,648
32 Hartwell Avenue Lexington, MA 1 69,154
195 West Street Waltham, MA 1 63,500
100 Hayden Avenue Lexington, MA 1 55,924
181 Spring Street Lexington, MA 1 53,595
211 Carnegie Center Princeton, NJ 1 47,025
204 Second Avenue Waltham, MA 1 40,974
92 Hayden Avenue Lexington, MA 1 30,980
201 Carnegie Center Princeton, NJ - 6,500
---------- ------------
Subtotal for Class A Office Properties: 89 23,802,521
Research & Development
Bedford Business Park Bedford, MA 2 383,704
Fullerton Square Springfield, VA 2 178,294
Hilltop Office Center South San Francisco, CA 9 144,366
7601 Boston Boulevard Springfield, VA 1 103,750
7435 Boston Boulevard Springfield, VA 1 103,557
8000 Grainger Court Springfield, VA 1 90,465
7700 Boston Boulevard Springfield, VA 1 82,224
7500 Boston Boulevard Springfield, VA 1 79,971
7501 Boston Boulevard Springfield, VA 1 75,756
7600 Boston Boulevard Springfield, VA 1 69,832
Fourteen Cambridge Center Cambridge, MA 1 67,362
164 Lexington Road Billerica, MA 1 64,140
7450 Boston Boulevard Springfield, VA 1 60,827
Sugarland Business Park, Building Two Herndon, VA 1 59,215
7374 Boston Boulevard Springfield, VA 1 57,321
Sugarland Business Park, Building One Herndon, VA 1 52,797
8000 Corporate Court Springfield, VA 1 52,539
</TABLE>
27
<PAGE>
<TABLE>
<CAPTION>
Number of Net Rentable
Properties Location Buildings Square Feet
- ---------- -------- ---------- -----------
<S> <C> <C> <C>
7451 Boston Boulevard Springfield, VA 1 47,001
17 Hartwell Avenue Lexington, MA 1 30,000
7375 Boston Boulevard Springfield, VA 1 28,780
---------- ------------
Subtotal for Research and Development Properties: 30 1,831,901
Industrial
2391 West Winton Hayward, CA 1 220,213
40-46 Harvard Street Westwood, MA 1 169,273
38 Cabot Boulevard Bucks County, PA 1 161,000
6201 Columbia Park Road Landover, MD 1 100,337
2000 South Club Drive Landover, MD 1 83,608
25-33 Dartmouth Road Westwood, MA 1 78,045
560 Forbes Blvd South San Francisco, CA 1 40,000
430 Rozzi Place South San Francisco, CA 1 20,000
---------- ------------
Subtotal for Industrial Properties: 8 872,476
---------- ------------
Subtotal for In-Service Class A Office, Research and Development and Industrial Properties: 127 26,506,898
---------- ------------
Properties Under Construction
5 Times Square New York, NY 1 1,099,154
111 Huntington Avenue Boston, MA 1 890,000
Two Freedom Square Reston, VA 1 417,113
One and Two Discovery Square Reston, VA 2 362,868
Waltham Weston Corporate Center Waltham, MA 1 295,000
Quorum Office Park Chelmsford, MA 2 259,918
611 Gateway Boulevard South San Francisco, CA 1 249,732
New Dominion Technology Park - Building One Herndon, VA 1 235,201
2600 Tower Oaks Boulevard Rockville, MD 1 178,216
Orbital Sciences Phase II - Building 2 Dulles, VA 1 160,502
Broad Run Business Park - Building E Dulles, VA 1 124,650
Andover Office Park - Building 1 Andover, MA 1 120,000
302 Carnegie Center Princeton, NJ 1 64,565
---------- ------------
Subtotal for Properties Under Construction: 15 4,456,919
---------- ------------
Hotel Properties
Long Wharf Marriott Boston, MA 1 420,000
Cambridge Center Marriott Cambridge, MA 1 330,400
Residence Inn by Marriott Cambridge, MA 1 187,474
---------- ------------
Subtotal for Hotel Properties: 3 937,874
---------- ------------
Structured Parking 6,017,423
------------
Total for all properties: 145 37,919,114
========== ============
</TABLE>
Item 3. Legal Proceedings
Neither we, nor our affiliates, are presently subject to any material
litigation or, to our knowledge, have any litigation threatened against us or
our affiliates other than routine actions and administrative proceedings
substantially all of which are expected to be covered by liability or other
insurance and in the aggregate are not expected to have a material adverse
effect on our business or financial condition.
28
<PAGE>
Item 4. Submission of Matters to a Vote of Security Holders
No matters were submitted to a vote of our stockholders during the fourth
quarter of the year ended December 31, 2000.
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
Our common stock is listed on the New York Stock Exchange under the symbol
"BXP". The high and low closing sales prices for the periods indicated in the
table below were:
Quarter Ended High Low Distributions
------------- ---- --- -------------
December 31, 2000 $44 3/4 $38 7/8 $.530 (a)
September 30, 2000 43 1/4 37 9/16 .530
June 30, 2000 38 31/32 31 3/4 .530
March 31, 2000 32 3/8 29 13/16 .450
December 31, 1999 31 1/8 27 1/2 .450
September 30, 1999 35 5/8 30 5/16 .450
June 30, 1999 37 1/8 31 1/4 .425
March 31, 1999 34 11/16 30 5/16 .425
(a) Paid on January 29, 2001 to stockholders of record on December 29, 2000.
At March 14, 2001, we had approximately 468 shareholders of record. This
does not include beneficial owners for whom Cede & Co. or others act as nominee.
We have adopted a policy of paying regular quarterly distributions on our
common stock and cash distributions have been paid on our common stock since our
initial public offering. In order to maintain our qualification as a REIT, we
must make annual distributions to our shareholders of at least 95% of our
taxable income (not including net capital gains). We intend that any dividend
paid in respect of our common stock during the last quarter of each year will,
if necessary, be adjusted to satisfy the REIT requirement that at least 95% of
taxable income for such taxable year be distributed.
29
<PAGE>
Item 6. Selected Financial Data
The following sets forth our selected financial and operating data for
Boston Properties, Inc., and Boston Properties Limited Partnership, together
with their subsidiaries on a historical consolidated basis and for our
predecessor business on a historical combined basis. The following data should
be read in conjunction with the financial statements and notes thereto and
Management's Discussion and Analysis of Financial Condition and Results of
Operations included elsewhere in this Form 10-K.
Historical operating results for Boston Properties, Inc., and Boston
Properties Limited Partnership, together with their subsidiaries and for our
predecessor business, including net income, may not be comparable to our future
operating results.
<TABLE>
<CAPTION>
The Company
---------------------------------------------------------
For the year ended December 31,
--------------------------------------------------------
(in thousands, except per share data) 2000 1999 1998
================================================================================================================================
<S> <C> <C> <C>
Statement of Operations Information
Total revenue $ 879,353 $ 786,564 $ 513,847
----------- ----------- -----------
Expenses:
Property 264,701 249,268 150,490
Hotel -- -- --
General and administrative 35,659 29,455 22,504
Interest 217,064 205,410 124,860
Depreciation and amortization 133,150 120,059 75,418
----------- ----------- -----------
Income before minority interests and unconsolidated joint
venture income 228,779 182,372 140,575
Income from unconsolidated joint ventures 1,758 468 --
Minority interests (76,971) (69,531) (41,982)
----------- ----------- -----------
Income before gain (loss) on sale of real estate 153,566 113,309 98,593
Gain (loss) on sale of real estate, net of minority interest (234) 6,467 --
----------- ----------- -----------
Income before extraordinary items 153,332 119,776 98,593
Extraordinary gain (loss), net of minority interest (334) -- (5,481)
----------- ----------- -----------
Net income before preferred dividend 152,998 119,776 93,112
Preferred dividend (6,572) (5,829) --
----------- ----------- -----------
Net income available to common shareholders $ 146,426 $ 113,947 $ 93,112
=========== =========== ===========
Basic earnings per share:
Income before extraordinary items $ 2.05 $ 1.72 $ 1.62
Extraordinary gain (loss), net of minority interest -- -- (0.09)
----------- ----------- -----------
Net income $ 2.05 $ 1.72 $ 1.53
=========== =========== ===========
Weighted average number of common shares outstanding 71,424 66,235 60,776
Diluted earnings per share:
Income before extraordinary items $ 2.01 $ 1.71 $ 1.61
Extraordinary gain (loss), net of minority interest -- -- (0.09)
----------- ----------- -----------
Net income $ 2.01 $ 1.71 $ 1.52
=========== =========== ===========
Weighted average number of common and common
equivalent shares outstanding 72,741 66,776 61,308
Balance Sheet Information:
Real estate, gross $ 6,112,779 $ 5,609,424 $ 4,917,193
Real estate, net 5,526,060 5,138,833 4,559,809
Cash 280,957 12,035 12,166
Total assets 6,226,470 5,434,772 5,235,087
Total indebtedness 3,414,891 3,321,584 3,088,724
Minority interests 877,715 781,962 1,079,234
Convertible Redeemable Preferred Stock 100,000 100,000 --
Stockholders' and owners' equity (deficit) 1,647,727 1,057,564 948,481
Other Information:
Funds from operations 247,371 196,101 153,045
Dividends per share 2.04 1.75 1.64
Cash flow provided by operating activities 339,664 303,469 215,287
Cash flow used in investing activities (573,363) (654,996) (2,179,215)
Cash flow provided by (used in) financing activities 502,621 351,396 1,958,534
Total square feet at end of year 37,926 35,621 31,077
Occupancy rate at end of year 98.9% 98.4% 97.1%
<CAPTION>
-------------------------------------
The Company The Predecessor Group
------------------ -------------------------------------
Period from Period from
June 23, 1997 January 1, 1997 Year ended
to to December 31,
(in thousands, except per share data) December 31, 1997 June 22, 1997 1996
================================================================================================================================
<S> <C> <C> <C>
Statement of Operations Information
Total revenue $ 145,643 $ 129,818 $ 269,933
----------- --------- ----------
Expenses:
Property 40,093 27,032 58,195
Hotel -- 22,452 46,734
General and administrative 6,689 5,116 10,754
Interest 38,264 53,324 109,394
Depreciation and amortization 21,719 17,054 36,199
----------- --------- ----------
Income before minority interests and unconsilidated joint
venture income 38,878 4,840 8,657
Income from unconsolidated joint ventures -- -- --
Minority interests (11,652) (235) (384)
----------- --------- ----------
Income before gain (loss) on sale of real estate 27,226 4,605 8,273
Gain (loss) on sale of real estate, net of minority interest -- -- --
----------- --------- ----------
Income before extraordinary items 27,226 4,605 8,273
Extraordinary gain (loss), net of minority interest 7,925 -- (994)
----------- --------- ----------
Net income before preferred dividend 35,151 4,605 7,279
Preferred dividend -- -- --
----------- --------- ----------
Net income available to common shareholders $ 35,151 $ 4,605 $ 7,279
=========== ========= ==========
Basic earnings per share:
Income before extraordinary items $ 0.70 -- --
Extraordinary gain (loss), net of minority interest 0.21 -- --
----------- --------- ----------
Net income $ 0.91 -- --
=========== ========= ==========
Weighted average number of common shares outstanding 38,694 -- --
Diluted earnings per share:
Income before extraordinary items $ 0.70 -- --
Extraordinary gain (loss), net of minority interest 0.20 -- --
----------- --------- ----------
Net income $ 0.90 -- --
=========== ========= ==========
Weighted average number of common and common
equivalent shares outstanding 39,108 -- --
Balance Sheet Information:
Real estate, gross $ 1,796,500 -- $1,035,571
Real estate, net 1,502,282 -- 771,660
Cash 17,560 -- 8,998
Total assets 1,672,521 -- 896,511
Total indebtedness 1,332,253 -- 1,442,476
Minority interests 100,636 -- --
Convertible Redeemable Preferred Stock -- -- --
Stockholders' and owners' equity (deficit) 175,048 -- (576,632)
Other Information:
Funds from operations 42,258 -- --
Dividends per share 1.62 a -- --
Cash flow provided by operating activities 46,146 25,090 55,907
Cash flow used in investing activities (519,743) (32,844) (34,315)
Cash flow provided by (used in) financing activities 491,157 9,266 (38,461)
Total square feet at end of year 16,101 -- 10,424
Occupancy rate at end of year 98.4% -- 94.2%
</TABLE>
a - annualized
30
<PAGE>
(1) The White Paper on Funds from Operations approved by the Board of Governors
of the National Association of Real Estate Investment Trusts in March 1995
defines funds from operations as net income (loss) (computed in accordance with
generally accepted accounting principles), excluding gains (or losses) from debt
restructuring and sales of properties, plus real estate related depreciation and
amortization and after adjustments for unconsolidated partnerships and joint
ventures. During 1999, the National Association of Real Estate Investment Trusts
clarified the definition of funds from operations to include non-recurring
events, except for those that are defined as "extraordinary items" under
accounting principles generally accepted in the United States and gains and
losses from sales of depreciable operating properties. This clarification is
effective for periods ending subsequent to January 1, 2000. We adopted this
definition for the quarters ending on or after March 31, 2000. We believe that
funds from operations is helpful to investors as a measure of the performance of
an equity REIT because, along with cash flow from operating activities,
financing activities and investing activities, it provides investors with an
indication of our ability to incur and service debt, to make capital
expenditures and to fund other cash needs. We compute funds from operations in
accordance with standards established by the National Association of Real Estate
Investment Trusts which may not be comparable to funds from operations reported
by other REITs that do not define the term in accordance with the current
National Association of Real Estate Investment Trusts definition or that
interpret the current National Association of Real Estate Investment Trusts
definition differently. Funds from operations does not represent cash generated
from operating activities determined in accordance with accounting principles
generally accepted in the United States and should not be considered as an
alternative to net income (determined in accordance with accounting principles
generally accepted in the United States) as a measure of our liquidity, nor is
it indicative of funds available to fund our cash needs, including our ability
to make cash distributions.
Our funds from operations for the respective periods is calculated as follows:
<TABLE>
<CAPTION>
The Company
--------------------------------------------------------
Year ended December 31, Period from
----------------------------------- June 23, 1997 to
(in thousands) 2000 1999 1998 December 31, 1997
======================================================================================================================
<S> <C> <C> <C> <C>
Income before minority interests and unconsolidated
joint venture income $ 228,779 $ 182,372 $ 140,575 $ 38,878
Add:
Real estate depreciation and amortization 134,386 119,583 74,649 21,417
Income from unconsolidated joint ventures 1,758 468 --
Less:
Minority property partnership's share
of funds from operations (1,061) (3,681) (4,185) (287)
Preferred dividends and distributions (32,994) (32,111) (5,830) --
Non-recurring item - significant lease termination fee -- -- -- --
--------- --------- --------- ---------
Funds from operations $ 330,868 $ 266,631 $ 205,209 $ 60,008
========= ========= ========= =========
Funds from operations available to common shareholders $ 247,371 $ 196,101 $ 153,045 $ 42,258
========= ========= ========= =========
Weighted average shares outstanding - basic 71,424 66,235 60,776 38,694
========= ========= ========= =========
<CAPTION>
The Predecessor Group
--------------------------------
Period from Year ended
January 1, 1997 December 31,
(in thousands) to June 22, 1997 1996
==============================================================================================
<S> <C> <C>
Income before minority interests and unconsolidated
joint venture income $ 4,840 $ 8,657
Add:
Real estate depreciation and amortization 16,808 35,643
Income from unconsolidated joint ventures
Less:
Minority property partnership's share
of funds from operations (198) (479)
Preferred dividends and distributions -- --
Non-recurring item - significant lease termination fee -- (7,503)
--------- ---------
Funds from operations $ 21,450 $ 36,318
========= =========
Funds from operations available to common shareholders -- --
========= =========
Weighted average shares outstanding - basic -- --
========= =========
</TABLE>
Reconciliation to Diluted Funds from Operations:
<TABLE>
<CAPTION>
For the year ended For the year ended
December 31, 2000 December 31, 1999
---------------------------- ----------------------------
Income Shares/Units Income Shares/Units
(in thousands) (Numerator) (Denominator) (Numerator) (Denominator)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Basic Funds from Operations $ 330,868 95,532 $ 266,631 90,058
Effect of Dilutive Securities
Convertible Preferred Units 26,422 10,393 26,428 10,360
Convertible Preferred Stock 6,572 2,625 5,834 2,337
Stock Options -- 1,280 -- 541
--------- ------- --------- -------
Diluted Funds from Operations $ 363,862 109,830 $ 298,893 103,296
========= ======= ========= =======
Company's share of Diluted Funds from Operations $ 283,994 85,723 $ 229,961 79,473
========= ======= ========= =======
<CAPTION>
For the period from
For the year ended June 23, 1997 to
December 31, 1998 December 31, 1997
--------------------------- ----------------------------
Income Shares/Units Income Shares/Units
(in thousands) (Numerator) (Denominator) (Numerator) (Denominator)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Basic Funds from Operations $ 205,209 81,487 $ 60,008 54,950
Effect of Dilutive Securities
Convertible Preferred Units 2,819 1,135 -- --
Convertible Preferred Stock -- -- -- --
Stock Options -- 532 -- 414
--------- ------ -------- ------
Diluted Funds from Operations $ 208,028 83,154 $ 60,008 55,364
========= ====== ======== ======
Company's share of Diluted Funds from Operations $ 156,215 62,443 $ 42,258 39,108
========= ====== ======== ======
</TABLE>
31
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
The following discussion should be read in conjunction with the selected
financial data and the historical consolidated and combined financial statements
and related notes thereto.
Forward-Looking Statements
Statements made under the caption "Risk Factors," elsewhere in this Form
10-K, in our press releases, and in oral statements we make by or with the
approval of our authorized executives are "forward-looking statements" within
the meaning of federal securities laws. When we use the words "anticipate,"
"assume," "believe," "estimate," "expect," "intend" and other similar
expressions, they generally identify forward-looking statements. Forward-looking
statements include, for example, statements relating to acquisitions and related
financial information, development activities, business strategy and prospects,
future capital expenditures, sources and availability of capital, environmental
and other regulations, and competition.
You should exercise caution in interpreting and relying on forward-looking
statements since they involve known and unknown risks, uncertainties and other
factors which are, in some cases, beyond our control and could materially affect
our actual results, performance or achievements. Some of the factors that could
cause our actual results, performance or achievements to differ materially from
those expressed or implied by forward-looking statements include, but are not
limited to, the following:
o we are subject to general risks affecting the real estate industry,
such as the need to enter into new leases or renew leases on
favorable terms to generate rental revenues, and dependence on our
tenants' financial condition;
o we may fail to identify, acquire, construct or develop additional
properties; we may develop properties that do not produce a desired
yield on invested capital; or we may fail to effectively integrate
acquisitions of properties or portfolios of properties;
o financing may not be available, or may not be available on favorable
terms;
o we need to make distributions to our stockholders for us to qualify
as a real estate investment trust, and if we need to borrow the
funds to make such distributions such borrowings may not be
available on favorable terms;
o we depend on the primary markets where our properties are located
and these markets may be adversely affected by local economic and
market conditions which are beyond our control;
o we are subject to potential environmental liabilities;
o we are subject to complex regulations relating to our status as a
real estate investment
32
<PAGE>
trust and would be adversely affected if we failed to qualify as a
real estate investment trust; and
o market interest rates could adversely affect the market prices for
our common stock, as well as our performance and cash flow.
We caution you that, while forward-looking statements reflect our good
faith beliefs when we make them, they are not guarantees of future performance
and are impacted by actual events when they occur after we make such statements.
We expressly disclaim any obligation to publicly update or revise any
forward-looking statement, whether as a result of new information, future events
or otherwise.
Overview
We are a fully integrated, self-administered and self-managed real estate
investment trust or "REIT" and are one of the largest owners and developers of
office and industrial properties in the United States. Our properties are
concentrated in four core markets - Boston, Washington, D.C., midtown Manhattan
and San Francisco. We conduct substantially all of our business through Boston
Properties Limited Partnership. At December 31, 2000, we owned 145 properties
totaling 37.9 million net rentable square feet, including 15 properties under
construction. The properties consisted of 134 office properties, including 103
Class A office buildings and 31 properties that support both office and
technical uses; eight industrial properties; and three hotels.
In 2000, we continued to identify and complete attractive acquisitions and
development transactions. During 2000, we added 2.1 million net rentable square
feet to our portfolio by completing acquisitions totaling approximately $167.7
million and completing developments totaling approximately $108.5 million. In
addition, as of December 31, 2000, we had construction in progress representing
a total anticipated investment of approximately $1.3 billion and a total of
approximately 4.5 million net rentable square feet.
We are focused on increasing the cash flow from our existing portfolio of
properties by maintaining high occupancy levels and increasing effective rents.
On the 3.8 million net-rentable square feet of second generation space renewed
or re-leased during the year, new net rents were on average approximately 47.1%
higher than the expiring net rents. At December 31 2000, our portfolio of office
and industrial properties was 98.9% occupied.
We also continue to strengthen our balance sheet. In October 2000, we
raised $633.8 million, net of expenses, in equity capital by completing a public
offering of our common stock. In 2000 we also issued shares of our common stock
and common and preferred units in Boston Properties Limited Partnership that
were valued when issued at $62.9 million to acquire properties and development
sites.
Results of Operations
The following discussion is based on our Consolidated Financial Statements
for the years ended December 31, 2000, 1999 and 1998.
33
<PAGE>
From January 1, 1998 through December 31, 2000, we increased our total
from 92 properties to 145 properties and from 16.1 million net rentable square
feet to 37.9 million net rentable square feet. As a result of this rapid growth
of our total portfolio, the financial data presented below shows significant
changes in revenues and expenses from period to period. We do not believe our
period to period financial data are comparable. Therefore, the comparison of
operating results for the years ended December 30, 2000, 1999 and 1998 show
changes resulting from properties that we owned for each period compared (for
which each comparison we refer to as our "Same Property Portfolio") and the
changes attributable to our total portfolio.
Comparison of the year ended December 31, 2000 to the year ended December 31,
1999
The table below shows selected operating information for our total
portfolio and the 106 buildings acquired or placed in service on or prior to
January 1, 1999 and that remained in the total portfolio through December 31,
2000 (which comprise the Same Property Portfolio for the years ended December
31, 2000 and 1999):
<TABLE>
<CAPTION>
Same Property Portfolio
----------------------------------------------
Increase/
(dollars in thousands) 2000 1999 (Decrease) % Change
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue:
Rental Revenue $ 766,141 $ 717,654 $ 48,487 6.76%
Development and management services -- -- -- --
Interest and other -- -- -- --
--------- --------- -------- ----
Total revenue 766,141 717,654 48,487 6.76%
--------- --------- -------- ----
Expenses:
Operating 237,107 230,178 6,929 3.01%
General and administrative -- -- -- --
Interest -- -- -- --
Depreciation and amortization 117,863 112,463 5,400 4.80%
--------- --------- -------- ----
Total expenses 354,970 342,641 12,329 3.60%
--------- --------- -------- ----
Income before minority interests
and unconsolidated joint venture income $ 411,171 $ 375,013 $ 36,158 9.64%
========= ========= ======== ====
<CAPTION>
Total Portfolio
----------------------------------------------
Increase/
(dollars in thousands) 2000 1999 (Decrease) % Change
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue:
Rental Revenue $ 858,942 $ 765,417 $ 93,525 12.22%
Development and management services 11,837 14,708 (2,871) -19.52%
Interest and other 8,574 6,439 2,135 33.16%
--------- --------- -------- -----
Total revenue 879,353 786,564 92,789 11.80%
--------- --------- -------- -----
Expenses:
Operating 264,701 249,268 15,433 6.19%
General and administrative 35,659 29,455 6,204 21.06%
Interest 217,064 205,410 11,654 5.67%
Depreciation and amortization 133,150 120,059 13,091 10.90%
--------- --------- -------- -----
Total expenses 650,574 604,192 46,382 7.68%
--------- --------- -------- -----
Income before minority interests
and unconsolidated joint venture income $ 228,779 $ 182,372 $ 46,407 25.45%
========= ========= ======== ======
</TABLE>
The increase in rental revenues in our Same Property Portfolio for these
years is primarily a result of an overall increase in rental rates on new leases
and rollovers, in addition to an increase in occupancy from year to year and an
increase in termination fees from $2.3 million to $3.3 million. The occupancy
for our Same Property Portfolio increased from 97.4% as of December 31, 1999 to
98.8% as of December 31, 2000. The increase in rental revenues in our total
portfolio is primarily the result of properties we acquired or placed-in-service
after January 1, 1998.
The decrease in development and management services income in the total
portfolio is mainly due to contracts expiring during 1999 and 2000.
The increase in interest and other income in the total portfolio is a
result of interest earned on proceeds received from the public offering of our
common stock in October 2000.
Property operating expenses (real estate taxes, utilities, repairs and
maintenance, cleaning and other property-related expenses) in our Same Property
Portfolio increased mainly due to increases in real estate taxes of $4.0
million, or 4.2%. Small increases in other property-related expenses account for
the remaining increase. Property operating expenses in our total portfolio
34
<PAGE>
increased due to properties we acquired or placed-in-service after January 1,
1999 as well as increases in other property-related expenses.
General and administrative expenses increased due to increases in the
overall size of our total portfolio since January 1, 1999. In addition, we
incurred a $3.0 million charge related to the departure of two senior employees,
which included a non-cash charge of approximately $2.0 million.
Interest expense for our total portfolio increased due to net increase in
mortgage indebtedness and our unsecured revolving line of credit with Fleet
National Bank, as agent, from $3.3 billion to $3.4 billion.
Depreciation and amortization expense for our Same Property Portfolio
increased as a result of capital and tenant improvements made during 2000.
Depreciation and amortization expense for our total portfolio increased as a
result of properties we acquired or placed-in-service after January 1, 2000 and
that remained in our total portfolio through December 31, 2000 and related
capital and tenant improvements.
Comparison of the year ended December 31, 1999 to the year ended December 31,
1998:
The table below shows selected operating information for our total
portfolio and the 76 buildings acquired or placed in service on or prior to
January 1, 1998 and that remained in the total portfolio through December 31,
1999 (which comprise the Same Property Portfolio for the years ended December
31, 1999 and 1998):
<TABLE>
<CAPTION>
Same Property Portfolio
----------------------------------------------
Increase/
(dollars in thousands) 1999 1998 (Decrease) % Change
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue:
Rental Revenue $ 353,470 $ 337,886 $ 15,584 4.61%
Development and management services -- -- -- --
Interest and other -- -- -- --
--------- --------- -------- ----
Total revenue 353,470 337,886 15,584 4.61%
--------- --------- -------- ----
Expenses:
Operating 104,048 100,726 3,322 3.30%
General and administrative -- -- -- --
Interest -- -- -- --
Depreciation and amortization 51,494 50,083 1,411 2.82%
--------- --------- -------- ----
Total expenses 155,542 150,809 4,733 3.14%
--------- --------- -------- ----
Income before minority interests
and unconsolidated joint venture income $ 197,928 $ 187,077 $ 10,851 5.80%
========= ========= ======== ====
<CAPTION>
Total Portfolio
-----------------------------------------------
Increase/
(dollars in thousands) 1999 1998 (Decrease) % Change
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue:
Rental Revenue $ 765,417 $ 487,577 $ 277,840 56.98%
Development and management services 14,708 12,411 2,297 18.51%
Interest and other 6,439 13,859 (7,420) -53.54%
--------- --------- -------- ------
Total revenue 786,564 513,847 272,717 53.07%
--------- --------- -------- ------
Expenses:
Operating 249,268 150,490 98,778 65.64%
General and administrative 29,455 22,504 6,951 30.89%
Interest 205,410 124,860 80,550 64.51%
Depreciation and amortization 120,059 75,418 44,641 59.19%
--------- --------- -------- ------
Total expenses 604,192 373,272 230,920 61.86%
--------- --------- -------- ------
Income before minority interests
and unconsolidated joint venture income $ 182,372 $ 140,575 $ 41,797 29.73%
========= ========= ======== ======
</TABLE>
The increase in rental revenues in our Same Property Portfolio for these
years is primarily a result of an overall increase in rental rates on new leases
and rollovers as well as an increase in termination fees from $0.7 million to
$2.3 million, offset by a small decrease in occupancy from year to year. The
occupancy for our Same Property Portfolio decreased from 97.8% as of December
31, 1998 to 97.4% as of December 31, 1999. The increase in rental revenues in
our total portfolio is primarily the result of properties we acquired or
placed-in-service after January 1, 1998.
35
<PAGE>
The increase in development and management services income in our total
portfolio is a result of fees earned on new projects begun during the year, and
increased fees on projects in progress.
The decrease in interest and other income in our total portfolio is a
result of less cash and cash equivalents on deposit during 1999. During 1998,
our average cash balances were higher due to $765.0 million of net proceeds
received from a public offering of our common stock in January 1998.
Property operating expenses (real estate taxes, utilities, repairs and
maintenance, cleaning and other property-related expenses) in our Same Property
Portfolio increased mainly due to real estate taxes. Real estate taxes increased
approximately $1.0 million due to higher property tax assessments. Small
increases in other property-related expenses account for the remaining increase.
Property operating expenses in our total portfolio increased mainly due to
properties we acquired or placed-in service after January 1, 1998.
General and administrative expenses increased due to the significant
increase in the size of our total portfolio since January 1, 1998. We hired
additional employees as a result of acquisitions.
Interest expense for our total portfolio increased due to an increase in
mortgage indebtedness and an increase in borrowing under our unsecured revolving
line of credit with Fleet National Bank, as agent.
Depreciation and amortization expense for our Same Property Portfolio
increased as a result of capital and tenant improvements made during 1999.
Depreciation and amortization expense for our total portfolio increased
primarily as a result of properties we acquired or placed- in-service after
January 1, 1998 and related capital and tenant improvements.
Liquidity and Capital Resources
Cash and cash equivalents were $281.0 million and $12.0 million at
December 31, 2000 and December 31, 1999, respectively. The increase was a result
of the following increases and decreases in cash flows:
<TABLE>
<CAPTION>
Year Ended December 31,
(in millions) 2000 1999 $ Change
---- ---- --------
<S> <C> <C> <C>
Cash Provided by Operating Activities $339.7 $303.5 $ 36.2
Cash Used for Investing Activities ($573.4) ($655.0) $ 81.6
Cash Provided by Financing Activities $502.6 $351.4 $151.2
</TABLE>
The increase in cash provided by operating activities is primarily due to
the increase in net income resulting from the 1999 and 2000 property
acquisitions and developments placed-in- service and our 2000 Same Property
Portfolio.
Net cash used for investing activities decreased from $655.0 million for
the year ended
36
<PAGE>
December 31, 1999 to $573.4 million for the year ended December 31, 2000 mainly
due to fewer property acquisitions during 2000. The cash and capital used in the
2000 investing activities was primarily for the following transactions:
Acquisitions, Dispositions and Development Transactions
o On January 12, 2000, we acquired our joint venture partner's 75%
interest in One and Two Reston Overlook, for cash of approximately
$15.2 million and the assumption of approximately $69.0 million in
debt.
o On March 1, 2000, we acquired three Class A office buildings
totaling approximately 408,163 square feet at Carnegie Center in
Princeton, New Jersey, under the terms of the original Carnegie
Center Portfolio acquisition entered into in June 1998. We acquired
the properties from a related party for approximately $66.5 million,
which was funded through the assumption of debt of approximately
$49.0 million at a rate of 7.39% and the issuance of 577,817 common
units of partnership interest in Boston Properties Limited
Partnership valued at approximately $17.5 million. The acquisition
was reviewed and approved by a vote of our independent directors.
o On May 12, 2000, an unrelated third party acquired partial interests
in two properties that we previously owned in their entirety. We
retained a 51% interest in the first property, Metropolitan Square,
a 582,194-square foot office property in Washington, DC and a 25%
interest in the second property, 140 Kendrick Street, a
381,000-square foot build-to-suit development property in Needham,
Massachusetts. The interests in the properties were acquired for
cash of approximately $46.7 million and the assumption of debt of
approximately $88.2 million and resulted in a gain to us of $0.4
million.
o On August 22, 2000, we acquired the remaining 50% interest in the
development rights at the Prudential Center in Boston, Massachusetts
for approximately $18.2 million, which was funded through the
issuance of 439,059 shares of our common stock.
o On September 13, 2000, we acquired a 35% interest in 265 Franklin
Street, a 325,699 square foot office property in Boston,
Massachusetts through a joint venture. Our interest in this property
was acquired with cash of approximately $10.6 million and new debt
financing of approximately $23.8 million.
o On September 29, 2000, we sold 910 and 930 Clopper Road, two
office/technical use properties totaling 240,596 square feet in
Gaithersburg, Maryland for approximately $24.1 million. This sale
resulted in a loss to us of approximately $0.8 million.
o On October 13, 2000, we sold 1950 Stanford Court, a single story
industrial building totaling 53,250 square feet, and an adjacent
parcel of land totaling approximately 2 acres in Landover, Maryland,
for approximately $2.2 million. This sale resulted in a gain to us
of approximately $0.1 million.
o On December 1, 2000, we acquired the leasehold interest and ground
rent credits at the site of the future Times Square Tower in midtown
Manhattan, for approximately $165.1 million in cash. This
development will consist of a 47-floor, 1.2 million square foot
office tower.
o We acquired additional land parcels in Greater Boston, Greater
Washington, D.C. and Greater San Francisco for potential future
developments for an aggregate amount of
37
<PAGE>
approximately $39.7 million, of which approximately $12.5 million
was funded with cash and approximately $27.2 million was funded
through the issuance of common and preferred units of Boston
Properties Limited Partnership.
o We placed six Class A office buildings in service which resulted in
a total investment during 2000 of approximately $43.4 million. We
began or continued construction on additional Class A office
buildings and incurred approximately $319.6 million of construction
costs during 2000. Our properties under construction as of December
31, 2000 were as follows:
<TABLE>
<CAPTION>
# of
Properties Under Construction Location Buildings Square feet
- ----------------------------- -------- --------- -----------
<S> <C> <C>
Class A Office Buildings
302 Carnegie Center Princeton, NJ 1 64,565
New Dominion Tech Park - Building 1 Herndon, VA 1 235,201
2600 Tower Oaks Boulevard Rockville, MD 1 178,216
Broad Run Business Park- Building E Dulles, VA 1 124,650
Orbital Sciences Phase II - Building 2 Dulles, VA 1 160,502
Quorum Office Park Chelmsford, MA 2 259,918
111 Huntington Avenue - Prudential Center Boston, MA 1 890,000
5 Times Square New York, NY 1 1,099,154
One and Two Discovery Square (50% ownership) Reston, VA 2 362,868
Waltham Weston Corporate Center Waltham, MA 1 295,000
Andover Office Park, Building 1 Andover, MA 1 120,000
611 Gateway Boulevard S. San Francisco, CA 1 249,732
Two Freedom Square (50% ownership) Reston, VA 1 417,113
-------- --------------
Total Construction Properties 15 4,456,919
======== ==============
<CAPTION>
Anticipated
Investment Total
Properties Under Construction to Date Investment
- ----------------------------- ------- ----------
<S> <C> <C>
Class A Office Buildings
302 Carnegie Center $ 10,085,110 $ 13,435,000
New Dominion Tech Park - Building 1 41,870,052 48,770,000
2600 Tower Oaks Boulevard 26,314,660 38,295,000
Broad Run Business Park- Building E 6,531,465 14,696,000
Orbital Sciences Phase II - Building 2 13,641,517 27,618,000
Quorum Office Park 16,164,660 41,747,000
111 Huntington Avenue - Prudential Center 164,195,234 291,637,000
5 Times Square 281,044,727 536,115,000
One and Two Discovery Square (50% ownership) 10,609,713 42,587,000 (1)
Waltham Weston Corporate Center 20,533,037 95,446,000
Andover Office Park, Building 1 8,380,612 17,381,000
611 Gateway Boulevard 8,664,576 77,523,240
Two Freedom Square (50% ownership) 8,896,757 49,336,000 (1)
--------------- ---------------
Total Construction Properties $ 616,932,120 $1,294,586,240
=============== ===============
</TABLE>
(1) Represents our share of the investment.
In addition, we incurred costs of approximately $37.0 million on
properties in the preconstruction phase of the development process.
Cash provided by financing activities increased by $151.2 million for
2000, compared to the year ended 1999. During 2000, we received proceeds from
new debt totaling approximately $976.4 million. This was offset by $525.2
million of paydowns and principal payments during 2000. The remaining increase
is mainly due to the increase in proceeds received from the public offering
described below.
Recent Equity Financing
On October 31, 2000, we completed a public offering of 17,110,000 shares
of our common stock (including 2,110,000 shares issued pursuant to the exercise
of the underwriters' overallotment option) at a price per share of $39.0625. Our
proceeds from this public offering, net of underwriter's discount and offering
costs, were approximately $633.8 million.
Market Risk
Market risk is the risk of loss from adverse changes in market prices and
interest rates. Our future earnings, cash flows and fair values relevant to
financial instruments are dependent upon prevalent market interest rates. Our
primary market risk results from our long-term indebtedness, which bears
interest at fixed and variable rates. The fair value of our long-term debt
obligation is affected by changes in the market interest rates. We manage our
market risk by matching long-term leases with long-term fixed rate non-recourse
debt of similar duration. In
38
<PAGE>
addition, we maintain a major unencumbered portion of our portfolio. We continue
to follow a conservative strategy of pre-leasing development projects on a
long-term basis to strong tenants in order to achieve the most favorable
construction and permanent financing terms. Approximately 85% of our outstanding
debt has fixed interest rates, which minimizes the interest rate risk until the
maturity of such outstanding debt.
We have entered into hedging arrangements with financial institutions. Our
primary objective when undertaking hedging transactions and derivative positions
is to reduce our floating rate exposure, which, in turn, reduces the risks that
the variability of cash flows imposes on variable rate debt. Our strategy
protects us against future increases in interest rates. At December 31, 2000, we
had hedge contracts totaling $450.0 million. The hedging agreements provide for
a fixed interest rate when the London Interbank Offered Rate ("LIBOR") is less
than 5.76% and when LIBOR is greater than 6.35% or 7.95% for terms ranging from
three to five years per the individual hedging agreements. In addition, we have
an interest rate swap agreement for a total of $213.0 million which provides for
a fixed interest rate of 6.0% through September 11, 2002. We will consider
entering into additional hedging agreements with respect to all or a portion of
our variable rate debt. We may borrow additional money with variable rates in
the future. Increases in interest rates could increase interest expense, which
in turn, could affect cash flow and our ability to service our debt. As a result
of the hedging agreements, decreases in interest rates could increase interest
expense as compared to the underlying variable rate debt and could result in us
making payments to unwind such agreements.
At December 31, 2000, our variable rate debt outstanding was approximately
$404.1 million. At December 31, 2000, the average interest rate on variable rate
debt was approximately 8.56%. Taking the hedging contracts into consideration,
if market interest rates on our variable rate debt were to increase by ten
percent (approximately 86 basis points), total interest would increase
approximately $1.7 million.
These amounts were determined solely by considering the impact of
hypothetical interest rates on our financial instruments. Due to the uncertainty
of specific actions we may undertake to minimize possible effects of market
interest rate increases, this analysis assume no changes in our financial
structure.
Capitalization
At December 31, 2000, our total consolidated debt was approximately $3.4
billion. The weighted average rate of our consolidated indebtedness was 7.37%
and the weighted average maturity was approximately 6.2 years.
Our total market capitalization was approximately $8.8 billion at December
31, 2000. Total market capitalization was calculated using the December 31, 2000
closing stock price of $43.50 per share and includes the following: (1)
86,630,089 shares of our common stock, (2) 23,862,206 of common units of Boston
Properties Limited Partnership (excluding common units held by Boston
Properties, Inc.), (3) an aggregate of 11,021,064 common units issuable upon
conversion of all Series One, Two, Three and Z preferred units, (4) 2,624,672
shares of our common stock issuable upon conversion of all 2,000,000 shares of
our Series A preferred stock,
39
<PAGE>
and (5) our consolidated debt. Our total consolidated debt at December 31, 2000
represented approximately 38.7% of our total market capitalization.
Debt Financing
The table below summarizes our mortgage notes and bonds payable and our
unsecured revolving line of credit with Fleet Boston, as agent, at December 31,
2000 and 1999:
December 31,
------------------------
2000 1999
---- ----
(dollars in thousands)
DEBT SUMMARY:
Balance
Fixed rate $3,010,760 $2,820,650
Variable rate 404,131 500,934
---------- ----------
Total $3,414,891 $3,321,584
========== ==========
Percent of total debt:
Fixed rate 88.17% 84.92%
Variable rate 11.83% 15.08%
---------- ----------
Total 100.00% 100.00%
========== ==========
Weighted average interest rate:
Fixed rate 7.21% 7.06%
Variable rate 8.56% 7.61%
---------- ----------
Total 7.37% 7.14%
========== ==========
The variable rate debt shown above bears interest based on various spreads
over LIBOR or Eurodollar rates.
We utilize our $605.0 million unsecured revolving line of credit
principally to fund development of properties, other land and property
acquisitions and for working capital purposes. Our unsecured revolving line of
credit is a recourse obligation of Boston Properties Limited Partnership. Our
ability to borrow under our unsecured revolving line of credit is subject to our
compliance with a number of customary financial and other covenants on an
ongoing basis, including: (1) loan-to-value ratio against our total borrowing
base not to exceed 55%, unless our leverage ratio exceeds 60%, in which case it
is not to exceed 50%, (2) a loan-to-value ratio against the total secured
borrowing base not to exceed 55%, (3) debt service coverage ratio of 1.40 for
our borrowing base, or 1.50 if our leverage ratio equals or exceeds 60%, and
1.30 for us as a whole for full fixed charges, (4) a leverage ratio not to
exceed 60%, however five consecutive quarters (not including the two quarters
prior to expiration) can go to 65% (5) an interest rate applicable to any
amounts drawn under our unsecured revolving line of credit for Eurodollar based
loans shall be equal to a floating rate based on a spread over Eurodollar equal
to 105 to 170 basis points, (6) limitations on additional indebtedness and
stockholder distributions, and (7) a minimum net worth requirement.
At December 31, 2000, we had issued letters of credit totaling $3.3
million and had the ability to borrow an additional $601.7 million under our
unsecured revolving line of credit. As of March 14, 2001 there was zero
outstanding under our unsecured revolving line of credit.
40
<PAGE>
The following table sets forth certain information regarding our mortgage notes
and bonds payable at December 31, 2000:
<TABLE>
<CAPTION>
Interest
Properties Rate Principal Amount Maturity Date
---------- ---- ---------------- -------------
(in thousands)
<S> <C> <C> <C>
Embarcadero Center One, Two and Federal
Reserve 6.70% $312,876 December 12, 2008
Prudential Center 6.72% 291,896 July 1,2008
280 Park Avenue 7.65% 270,000 December 31, 2009
599 Lexington Avenue (1) 7.00% 225,000 July 19, 2005
5 Times Square (2) 8.66% 184,157 January 26, 2003
Embarcadero Center Four 6.79% 154,549 February 1, 2008
875 Third Avenue (3) 8.00% 150,959 December 31, 2002
Embarcadero Center Three 6.40% 146,313 January 1, 2007
Two Independence Square (4) 8.09% 116,377 February 27, 2003
Riverfront Plaza 6.61% 115,647 February 1, 2008
Democracy Center 7.05% 107,717 April 1, 2009
New Dominion Technology Park, Building 1 (5) 98,142 (5)
Embarcadero Center West Tower 6.50% 97,587 January 1, 2006
100 East Pratt Street 6.73% 91,851 November 1, 2008
601 and 651 Gateway Boulevard 8.40% 89,888 October 1, 2010
111 Huntington Avenue (6) 8.69% 76,041 September 27, 2002
One Independence Square (4) 8.12% 74,114 August 21, 2001
Reservoir Place (7) 6.88% 73,858 November 1, 2006
One & Two Reston Overlook 7.45% 68,190 September 1, 2004
2300 N Street 6.88% 66,000 August 3, 2003
202, 206, 214 Carnegie Center 8.13% 62,917 October 1, 2001
Capital Gallery 8.24% 57,161 August 15, 2006
504,506,508 Carnegie Center 7.39% 48,312 January 1, 2008
10 and 20 Burlington Mall Road (8) 8.33% 37,000 October 1, 2001
10 Cambridge Center 8.27% 35,741 May 1, 2010
1301 New York Avenue (9) 32,710 August 15, 2009
Eight Cambridge Center 7.73% 28,412 July 15, 2010
Sumner Square (10) 8.38% 28,298 April 22, 2004
510 Carnegie Center 7.39% 27,653 January 1, 2008
Lockheed Martin Building 6.61% 26,289 June 1, 2008
Orbital Sciences - Buildings One and Three
(11) 8.35% 25,761 August 9, 2002
University Place 6.94% 25,253 August 1, 2021
Reston Corporate Center 6.56% 24,809 May 1, 2008
191 Spring Street 8.50% 22,797 September 1, 2006
Bedford Business Park 8.50% 21,717 December 10, 2008
NIMA Building 6.51% 21,495 June 1, 2008
2600 Tower Oaks Boulevard (12) 8.59% 18,083 October 10, 2002
Quorum Office Park (13) 8.34% 11,111 August 30, 2003
101 Carnegie Center 7.66% 8,348 April 1, 2006
</TABLE>
41
<PAGE>
<TABLE>
<CAPTION>
Interest
Properties Rate Principal Amount Maturity Date
---------- ---- ---------------- -------------
(in thousands)
<S> <C> <C> <C>
Orbital Sciences - Phase 2 (14) 8.35% 8,032 June 13, 2003
Montvale Center 8.59% 7,564 December 1, 2006
40 Shattuck Road (15) 8.53% 6,224 December 4, 2003
Newport Office Park 8.13% 5,923 July 1, 2001
302 Carnegie Center (16) 8.61% 5,893 March 15, 2003
Hilltop Business Center 6.81% 5,738 March 1, 2019
201 Carnegie Center 7.08% 488 February 1, 2010
----------
Total $3,414,891
==========
</TABLE>
(1) At maturity the lender has the option to purchase a 33.33% interest in
this property in exchange for the cancellation of the principal balance of
$225.0 million.
(2) Total construction loan in the amount of $420.0 million at a variable rate
of Eurodollar + 2.00%.
(3) The principal amount and interest rate shown have been adjusted to reflect
the fair value of the note. The stated principal balance at December 31,
2000 was $150.0 million and the interest rate was 8.75%.
(4) The principal amount and interest rate shown have been adjusted to reflect
the effective rates on the loans. The stated principal balances at
December 31, 2000 were $116.8 million and $74.4 million, respectively. The
stated interest rates are 8.50% and continue at such rates through the
loan expiration.
(5) Includes construction loan in the amount of $48.6 million which was paid
off on January 31, 2001 and $57.6 million of bond financing which was
being held in escrow until the New Dominion project was completed. The
bond financing bears interest at a rate of 7.70% and matures in January
2021.
(6) Total construction loan in the amount of $203.0 million at a variable rate
of LIBOR + 2.00%.
(7) The principal amount and interest rate shown have been adjusted to reflect
the fair value of the note. The stated principal balance at December 31,
2000 was $65.5 million and the interest rate was 9.09%.
(8) Includes outstanding indebtedness secured by 91 Hartwell Avenue and 92 and
100 Hayden Avenue.
(9) Includes outstanding principal in the amounts of $19.9 million, $8.4
million and $4.4 million which bear interest at fixed rates of 6.70%,
8.54% and 6.75%, respectively.
(10) Outstanding principal bears interest at a floating rate equal to
Eurodollar + 1.50%
(11) Total construction loan in the amount of $27.0 million at a variable rate
of Eurodollar + 1.65%.
(12) Total construction loan in the amount of $32.0 million at a variable rate
of LIBOR + 1.90%.
(13) Total construction loan in the amount of $16.0 million at a variable rate
of LIBOR + 1.75%.
(14) Total construction loan in the amount of $25.1 million at a variable rate
of Eurodollar + 1.65%.
(15) Total construction loan in the amount of $16.0 million at a variable rate
of LIBOR + 1.75%.
(16) Total construction loan in the amount of $10.0 million at a variable rate
of LIBOR + 1.90%.
NOTE: LIBOR and Eurodollar rate contracts in effect on December 31, 2000 ranged
from 6.56% to 6.82%. The LIBOR and Eurodollar rates at December 31, 2000 were
6.57% and 6.58%, respectively.
We have determined that our estimated cash flows and available sources of
liquidity are adequate to meet liquidity needs for the next twelve months. We
believe that our principal liquidity needs for the next twelve months are to
fund normal recurring expenses, debt service requirements, current development
costs not covered under construction loans and the minimum distribution required
to maintain our REIT qualifications under the Internal Revenue Code of 1986, as
amended. We believe that these needs will be fully funded from cash flows
provided by operating and financing activities.
We expect to meet liquidity requirements for periods beyond twelve months
for the costs of development, property acquisitions, scheduled debt maturities,
major renovations, expansions and other non-recurring capital improvements
through construction loans, the incurrence of long-term secured and unsecured
indebtedness, income from operations and sales of real estate and possibly the
issuance of additional common and preferred units of Boston Properties Limited
Partnership and equity securities of Boston Properties, Inc. In addition, we may
finance the development, redevelopment or acquisition of additional properties
by using our unsecured
42
<PAGE>
revolving line of credit.
Rental revenues, operating expense reimbursement income from tenants, and
income from the operations are our principal sources of capital used to pay
operating expenses, debt service and recurring capital expenditures. We seek to
increase income from our existing properties by maintaining quality standards
for our properties that promote high occupancy rates and permit increases in
rental rates while reducing tenant turnover and controlling operating expenses.
Our sources of revenue include third party fees generated by our office and
industrial real estate management, leasing, development and construction
businesses. Consequently, we believe our revenue will continue to provide the
necessary funds for operating expenses, debt service and recurring capital
expenditures.
During the year ended December 31, 2000, we paid or declared quarterly
dividends totaling $2.04 per common share (consisting of $.45 related to the
quarter ended March 31, 2000 and $.53 related to each of the quarters ended June
30, 2000, September 30, 2000 and December 31, 2000). We intend to continue
paying dividends quarterly.
Funds from Operations
Pursuant to the National Association of Real Estate Investment Trusts
revised definition of Funds from Operations, we calculate Funds From Operations
by adjusting net income (loss) (computed in accordance with accounting
principles generally accepted in the United States, including non-recurring
items), for gains (or losses) from debt restructuring and sales of properties
(except gains and losses from sales of depreciable operating properties), real
estate related depreciation and amortization and unconsolidated partnerships and
joint ventures. We believe that Funds From Operations is helpful to investors as
a measure of the performance of an equity REIT because, along with cash flow
from operating activities, financing activities and investing activities, it
provides investors with an indication of our ability to incur and service debt,
to make capital expenditures and to fund other cash needs. We compute Funds From
Operations in accordance with standards established by the National Association
of Real Estate Investment Trusts which may not be comparable to Funds From
Operations reported by other REITs that do not define the term in accordance
with the current National Association of Real Estate Investment Trusts or that
interpret the definition differently. Funds From Operations does not represent
cash generated from operating activities determined in accordance with
accounting principles generally accepted in the United States and should not be
considered as an alternative to net income (determined in accordance with
accounting principles generally accepted in the United States) as a measure of
our liquidity, nor is it indicative of funds available to fund our cash needs,
including our ability to make cash distributions.
Environmental Matters
Some of our properties are located in urban and industrial areas where
fill or current or historical industrial uses of the areas have caused site
contamination. With respect to all of our properties, independent environmental
consultants have been retained in the past to conduct or update Phase I
environmental assessments (which generally do not involve invasive techniques
such as soil or ground water sampling) and asbestos surveys. These environmental
assessments have not revealed any environmental conditions that we believe will
have a material adverse
43
<PAGE>
effect on our business, assets or results of operations, and we are not aware of
any other environmental condition with respect to any of our properties which we
believe would have such a material adverse effect. However, we are aware of
environmental conditions at three of our properties that may require
remediation:
On January 15, 1992, a property in Massachusetts was listed by the state
regulatory authority as an unclassified Confirmed Disposal Site in connection
with groundwater contamination. We engaged a specially licensed environmental
consultant to perform the necessary investigation and assessment and to prepare
submittals to the state regulatory authority. On August 1, 1997, our consultant
submitted to the state regulatory authority a Phase I - Limited Site
Investigation Report and Downgradient Property Status Opinion. This Opinion
concluded that the property qualifies for Downgradient Property Status under the
state regulatory program, which eliminates certain deadlines for conducting
response actions at a site and may qualify us for liability relief under recent
statutory amendments. Although we believe that the current or former owners of
the upgradient source properties may ultimately be responsible for some or all
of the costs of such response actions, we will take any necessary further
response actions.
An investigation at another property in Massachusetts identified
groundwater contamination. We engaged a specially licensed environmental
consultant to perform the necessary investigation and assessment and to prepare
submittals to the state regulatory authority. On March 11, 1998, our consultant
submitted to the state regulatory authority a Release Notification and
Downgradient Property Status Opinion. This Opinion concluded that the property
qualifies for Downgradient Property Status under the state regulatory program,
which eliminates certain deadlines for conducting response actions at a site and
may qualify us for liability relief under recent statutory amendments. Although
we believe that the current or former owners of the upgradient source properties
may ultimately be responsible for some or all of the costs of such response
actions, we will take any necessary further response actions.
In February 1999, one of our affiliates acquired from Exxon Corporation a
property in Massachusetts that was formerly used as a petroleum bulk storage and
distribution facility and was known by the state regulatory authority to contain
soil and groundwater contamination. We anticipate development of an office park
on the property. Pursuant to the property acquisition agreement, Exxon has
agreed to (1) bear the liability arising from releases or discharges of oil and
hazardous substances which occurred at the site prior to our ownership, (2)
continue remediating such releases and discharges as necessary and appropriate
to comply with applicable requirements, and (3) indemnify our affiliate for
certain losses arising from preexisting site conditions, including up to
$500,000 for the premium costs associated with construction-related management
of contaminated soil not otherwise subject to remediation by Exxon. Any
indemnity claim may be subject to various defenses. Our affiliate has engaged a
specially licensed environmental consultant to oversee the management of
contaminated soil that may be disturbed in the course of construction.
We expect that any resolution of the environmental matters relating the
above will not have a material impact on our financial position, results of
operations or liquidity.
44
<PAGE>
Newly Issued Accounting Standard
As of January 1, 2001, we adopted Statement of Financial Accounting
Standard ("SFAS") No. 133, "Accounting for Derivative Instruments and Hedging
Activities" as amended by SFAS No. 137 and No. 138 ("SFAS No. 133"). SFAS No.
133 establishes accounting and reporting standards for derivative instruments,
including certain derivative instruments embedded in other contracts, and
hedging activities. It requires the recognition of all derivative instruments as
assets or liabilities in our consolidated balance sheets at fair value. Changes
in the fair value of derivative instruments that are not designated as hedges or
that do not meet the hedge accounting criteria in SFAS No. 133 are required to
be reported in earnings. For derivatives designated as hedging instruments in
qualifying cash flow hedges, the effective portion of changes in fair value of
the derivatives are recognized in accumulated other comprehensive loss until the
forecasted transactions occur and the ineffective portions are recognized in
earnings.
The nature of our derivatives include investments in warrants to purchase
shares of common stock of other companies and interest rate agreements to
protect against changes in interest rates for variable rate debt. Based on the
terms of the warrant agreements, the warrants meet the definition of a
derivative and accordingly, must be marked to fair value through earnings. We
had been recording the warrants at fair value through other comprehensive loss
as available for sale securities under SFAS No. 115. We estimate that upon
adoption of SFAS No. 133, we will reclass approximately $6.8 million, the fair
value of the warrants, from accumulated other comprehensive loss to a cumulative
effect of a change in accounting principle. Our interest rate protection
agreements will be designated as hedging instruments in qualifying cash flow
hedges. As such, we estimate that, upon adoption of SFAS No. 133, we will record
an asset of approximately $0.2 million and record a liability of approximately
$11.4 million for the fair values of these agreements. The offset for these
entries will be to a cumulative effect of a change in accounting principle and
accumulated other comprehensive loss, respectively. Finally, we estimate we will
write-off deferred charges of approximately $1.6 million as a cumulative effect
of a change in accounting principle.
Inflation
Substantially all of our leases provide for separate real estate tax and
operating expense escalations over a base amount. In addition, many of our
leases provide for fixed base rent increases or indexed increases. We believe
that inflationary increases may be at least partially offset by the contractual
rent increases described above.
45
<PAGE>
Item 7a. Quantitative and Qualitative Disclosures about Market Risk
Approximately $3.0 billion of our long-term debt bears interest at fixed
rates, and therefore the fair value of these instruments is affected by changes
in the market interest rates. The following table presents principal cash flows
based upon maturity dates of the debt obligations and the related
weighted-average interest rates by expected maturity dates for the fixed rate
debt. The interest rate on the variable rate debt as of December 31, 2000 ranged
from LIBOR or Eurodollar plus 1.50% to LIBOR or Eurodollar plus 2.00%.
<TABLE>
<CAPTION>
Mortgage debt, including current portion (in thousands)
---------------------------------------------------------------------------------------------
2001 2002 2003 2004 2005 2006+ Total Fair Value
---- ---- ---- ---- ---- ----- ----- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Fixed Rate .......... $153,415 186,338 218,925 106,666 269,378 2,076,038 $3,010,760 $3,010,760
Average Interest Rate 7.93% 7.76% 7.54% 7.30% 7.01% 7.09% 7.21% --
Variable Rate ....... $ 40,532 119,885 215,416 28,298 -- -- $ 404,131 $ 404,131
</TABLE>
Item 8. Financial Statements and Supplementary Data
See "Index to Financial Statements" on page 54 this Form 10-K.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosures
None.
46
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
The information concerning our directors and executive officers required
by Item 10 shall be included in the Proxy Statement to be filed relating to the
2001 Annual Meeting of our stockholders and is incorporated herein by reference.
Item 11. Executive Compensation
The information concerning our executive compensation required by Item 11
shall be included in the Proxy Statement to be filed relating to the 2001 Annual
Meeting of our stockholders and is incorporated herein by reference.
Item 12. Security Ownership of Beneficial Owners and Management
The information concerning our directors and executive officers required
by Item 12 shall be included in the Proxy Statement to be filed relating to the
2001 Annual Meeting of our stockholders and is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions
The information concerning our directors and executive officers required
by Item 13 shall be included in the Proxy Statement to be filed relating to the
2001 Annual Meeting of our stockholders and is incorporated herein by reference.
47
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedule and Reports on Form 8-K
(a) Financial Statements and Financial Statement Schedule
See "Index to Financial Statements" on page 54 of this Form 10-K.
(b) Reports on Form 8-K
We filed a report on Form 8-K on October 16, 2000 which included
information regarding Item 5. We filed this Form 8-K in connection with our
press release regarding our third quarter 2000 earnings and information
presented to investors and analysts.
(c) Exhibits
Exhibit No. Description
- ----------- -----------
3.1 Form of Amended and Restated Certificate of Incorporation of Boston
Properties, Inc. (2)
3.2 Form of Amended and Restated Bylaws of Boston Properties, Inc. (2)
3.3 Amendment No. 1 to Amended and Restated Bylaws of Boston Properties, Inc.
4.1 Form of Shareholder Rights Agreement dated as of June , 1997 between
Boston Properties, Inc. and BankBoston, N.A., as Rights Agent. (2)
4.2 Form of Certificate of Designation for Series E Junior Participating
Cumulative Preferred Stock, par value $.01 per share. (2)
4.3 Form of Certificate of Designations for the Series A Preferred Stock. (9)
4.4 Form of Common Stock Certificate. (2)
10.1 Second Amended and Restated Agreement of Limited Partnership of Boston
Properties Limited Partnership, dated as of June 29, 1998. (6)
48
<PAGE>
10.2 Certificate of Designations for the Series One Preferred Units, dated June
30, 1998, constituting an amendment to the Second Amended and Restated
Agreement of Limited Partnership of Boston Properties Limited Partnership.
(6)
10.3 Certificate of Designations for the Series Two Preferred Units, dated
November 12, 1998, constituting an amendment to the Second Amendment and
Restated Agreement of Limited Partnership of Boston Properties Limited
Partnership. (9)
10.4 Certificate of Designations for the Series Three Preferred Units, dated
November 12, 1998, constituting an amendment to the Second Amended and
Restated Agreement of Limited Partnership of Boston Properties Limited
Partnership. (9)
10.5 Certificate of Designations for the Series Z Preferred Units, dated
December 11, 2000, constituting an amendment to the Second Amended and
Restated Agreement of Limited Partnership of Boston Properties Limited
Partnership.
10.6 Amended and Restated 1997 Stock Option and Incentive Plan dated May 3,
2000 and forms of option agreements.
10.7 Amendment #1 to Amended and Restated 1997 Stock Option and Incentive Plan
dated November 14, 2000.
10.8 Form of Noncompetition Agreement between Boston Properties, Inc. and
Mortimer B. Zuckerman. (2)
10.9 Form of Employment and Noncompetition Agreement between Boston Properties,
Inc. and Edward H. Linde. (2)
10.10 Form of Employment Agreement between Boston Properties, Inc. and certain
executive officers. (2)
10.11 Form of Indemnification Agreement between Boston Properties, Inc. and each
of its directors and executive officers. (2)
10.12 Omnibus Option Agreement by and among Boston Properties Limited
Partnership and the Grantors named therein dated as of April 9, 1997. (2)
10.13 Second Amended and Restated Revolving Credit Agreement with Fleet National
Bank, as agent, dated as of March 31, 2000. (10)
10.14 Amendment #1 to Second Amended and Restated Revolving Credit Agreement
with Fleet National Bank, as agent, dated as of September 20, 2000.
10.15 Form of Registration Rights Agreement among Boston Properties, Inc. and
the holders named therein. (2)
10.16 Form of Lease Agreement dated as of June , 1997 between Edward H. Linde
and Mortimer B. Zuckerman, as Trustees of Downtown Boston Properties
Trust, and ZL Hotel LLC. (2)
10.17 Form of Lease Agreement dated as of June , 1997 between Edward H. Linde
and Mortimer B. Zuckerman, as Trustees of Two Cambridge Center Trust, and
ZL Hotel LLC. (2)
10.18 Form of Certificate of Incorporation of Boston Properties Management, Inc.
(2)
10.19 Form of By-laws of Boston Properties Management, Inc. (2)
10.20 Form of Limited Liability Agreement of ZL Hotel LLC. (2)
10.21 Indemnification Agreement between Boston Properties Limited Partnership
and Mortimer B. Zuckerman and Edward H. Linde. (2)
10.22 Compensation Agreement between Boston Properties, Inc. and Robert Selsam,
dated as of August 10, 1995 relating to 90 Church Street.(2)
10.23 Contribution and Conveyance Agreement concerning the Carnegie Portfolio,
dated June 30, 1998 by and among Boston Properties, Inc., Boston
Properties Limited Partnership, and the parties named therein as Landis
Parties. (6)
49
<PAGE>
10.24 Contribution Agreement, dated June 30, 1998, by and among Boston
Properties, Inc., Boston Properties Limited Partnership, and the parties
named therein as Landis Parties. (6)
10.25 Registration Rights and Lock-Up Agreement, dated June 30, 1998 by and
among Boston Properties, Inc., Boston Properties Limited Partnership and
the parties named therein as Holders. (6)
10.26 Non-Competition Agreement, dated as of June 30, 1998, by and between Alan
B. Landis and Boston Properties, Inc. (6)
10.27 Agreement Regarding Directorship, dated as of June 30, 1998, by and
between Boston Properties, Inc. and Alan B. Landis. (6)
10.28 Purchase and Sale Agreement, dated May 7, 1998, by and between The
Prudential Insurance Company of America and Boston Properties Limited
Partnership. (7)
10.29 Contribution Agreement, dated as of May 7, 1998, by and between The
Prudential Insurance Company of America and Boston Properties Limited
Partnership. (7)
10.30 Registration Rights Agreement, dated as of July 2, 1998, by and among the
Registrant, Strategic Value Investors II, LLC and The Prudential Insurance
Company of America. (7)
10.31 Purchase and Sale Agreement, dated as of November 12, 1998, by and between
Two Embarcadero Center West and BP OFR LLC. (9)
10.32 Contribution Agreement, dated as of November 12, 1998, by and among Boston
Properties, Inc., Boston Properties Limited Partnership, Embarcadero
Center Investors Partnership and the partners in Embarcadero Center
Investors Partnership listed on Exhibit A thereto. (9)
10.33 Contribution Agreement, dated as of November 12, 1998, by and among Boston
Properties, Inc., Boston Properties Limited Partnership, Three Embarcadero
Center West and the partners in Three Embarcadero Center West listed on
Exhibit A thereto. (9)
10.34 Three Embarcadero Center West Redemption Agreement, dated as of November
12, 1998, by and among Three Embarcadero Center West, Boston Properties
Limited Partnership, BP EC West LLC, The Prudential Insurance Company of
America, PIC Realty Corporation and Prudential Realty Securities II,
Inc.(9)
10.35 Three Embarcadero Center West Property Contribution Agreement, dated as of
November 12, 1998, by and among Three Embarcadero Center West, The
Prudential Insurance Company of America, PIC Realty Corporation,
Prudential Realty Securities II, Inc., Boston Properties Limited
Partnership, Boston Properties, Inc. and BP EC West LLC. (9)
10.36 Registration Rights and Lock-Up Agreement, dated November 12, 1998, by and
among Boston Properties, Inc., Boston Properties Limited Partnership and
the Holders named therein.(9)
10.37 Third Amended and Restated Partnership Agreement of One Embarcadero Center
Venture, dated as of November 12, 1998, by and between Boston Properties
LLC, as managing general partner, BP EC1 Holdings LLC, as non-managing
general partner, and PIC Realty Corporation, as non-managing general
partner. (9)
10.38 Third Amended and Restated Partnership Agreement of Embarcadero Center
Associates, dated as of November 12, 1998, by and between BP LLC, as
managing general partner, BP EC2 Holdings LLC, as non-managing general
partner, and PIC Realty Corporation, as non- managing general partner. (9)
50
<PAGE>
10.39 Second Amended and Restated Partnership Agreement of Three Embarcadero
Center Venture, dated as of November 12, 1998, by and between Boston
Properties LLC, as managing general partner, BP EC3 Holdings LLC, as non-
managing general partner, and The Prudential Insurance Company of America,
as non-managing general partner. (9)
10.40 Second Amended and Restated Partnership Agreement of Four Embarcadero
Center Venture, dated as of November 12, 1998, by and between Boston
Properties LLC, as managing general partner, BP EC4 Holdings LLC, as non-
managing general partner, and The Prudential Insurance Company of America,
as non-managing general partner. (9)
10.41 Note Purchase Agreement, dated as of November 12, 1998, by and between
Prudential Realty Securities, Inc. and One Embarcadero Center Venture. (9)
10.42 Note Purchase Agreement, dated as of November 12, 1998, by and between
Prudential Realty Securities, Inc. and Embarcadero Center Associates. (9)
10.43 Note Purchase Agreement, dated November 12, 1998, by and between
Prudential Realty Securities, Inc. and Three Embarcadero Center Venture.
(9)
10.44 Note Purchase Agreement, dated November 12, 1998, by and between
Prudential Realty Securities, Inc. and Four Embarcadero Center Venture.
(9)
10.45 Redemption Agreement, dated as of November 12, 1998, by and among One
Embarcadero Center Venture, Boston Properties LLC, BP EC1 Holdings LLC and
PIC Realty Corporation. (9)
10.46 Redemption Agreement, dated as of November 12, 1998, by and among
Embarcadero Center Associates, Boston Properties LLC, BP EC2 Holdings LLC
and PIC Realty Corporation. (9)
10.47 Redemption Agreement, dated as of November 12, 1998, by and among Three
Embarcadero Center Venture, Boston Properties LLC, BP EC3 Holdings LLC and
The Prudential Insurance Company of America. (9)
10.48 Redemption Agreement, dated as on November 12, 1998, by and among Four
Embarcadero Center Venture, Boston Properties LLC, BP EC4 Holdings LLC and
The Prudential Insurance Company of America. (9)
10.49 Option and Put Agreement, dated as of November 12, 1998, by and between
One Embarcadero Center Venture and The Prudential Insurance Company of
America. (9)
10.50 Option and Put Agreement, dated as of November 12, 1998, by and between
Embarcadero Center Associates and The Prudential Insurance Company of
America. (9)
10.51 Option and Put Agreement, dated as of November 12, 1998, by and between
Three Embarcadero Center Venture and The Prudential Insurance Company of
America. (9)
10.52 Option and Put Agreement, dated as of November 12, 1998, by and between
Four Embarcadero Center Venture and The Prudential Insurance Company of
America. (9)
10.53 Stock Purchase Agreement, dated as of September 28, 1998, by and between
Boston Properties, Inc. and The Prudential Insurance Company of America.
(9)
10.54 Master Agreement by and between New York State Common Retirement Fund and
Boston Properties Limited Partnership, dated as of May 12, 2000.
21.1 Schedule of Subsidiaries of Boston Properties, Inc. (2)
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
(1) Incorporated herein by reference to Boston Properties, Inc.'s Registration
Statement on Form S-11 (No. 333-41449).
51
<PAGE>
(2) Incorporated herein by reference to Boston Properties, Inc.'s Registration
Statement on Form S-11 (No. 333-25279).
(3) Incorporated herein by reference to Boston Properties, Inc.'s Current
Report on Form 8-K filed on November 25, 1997.
(4) Incorporated herein by reference to Boston Properties, Inc.'s Current
Report on Form 8- K/A filed on November 14, 1997.
(5) Incorporated herein by reference to Boston Properties, Inc.'s Current
Report on Form 8-K filed on November 26, 1997.
(6) Incorporated herein by reference to Boston Properties, Inc.'s Current
Report on Form 8-K filed on July 15, 1998.
(7) Incorporated herein by reference to Boston Properties, Inc.'s Current
Report on Form 8-K filed on July 17, 1998.
(8) Incorporated herein by reference to Boston Properties, Inc.'s Current
Report on Form 8-K filed on July 27, 1998.
(9) Incorporated herein by reference to Boston Properties, Inc.'s Current
Report on Form 8-K filed on November 25, 1998.
(10) Incorporated herein by reference to Boston Properties, Inc.'s Report on
Form 10-Q filed on May 15, 2000.
52
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant, Boston Properties, Inc., has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized.
Boston Properties, Inc.
Date
By: /s/ Douglas T. Linde
March 29, 2001 --------------------------
Douglas T. Linde
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
March 29, 2001 By: /s/ Mortimer B. Zuckerman
--------------------------
Mortimer B. Zuckerman
Chairman of the Board of Directors
By: /s/ Edward H. Linde
--------------------------
Edward H. Linde
President and Chief Executive Officer
By: /s/ Douglas T. Linde
--------------------------
Douglas T. Linde
Chief Financial Officer
By: /s/Alan J. Patricof
--------------------------
Alan J. Patricof
Director
By: /s/ Ivan G. Seidenberg
--------------------------
Ivan G. Seidenberg
Director
By: /s/ Martin Turchin
--------------------------
Martin Turchin
Director
By: /s/ Alan B. Landis
--------------------------
Alan B. Landis
Director
By: /s/ Richard E. Salomon
--------------------------
Richard E. Salomon
Director
53
<PAGE>
BOSTON PROPERTIES, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
----
Report of Independent Accountants ....................................... 55
Consolidated Balance Sheets as of December 31, 2000 and 1999 ............ 56
Consolidated Statements of Operations for the years ended
December 31, 2000, 1999 and 1998 ...................................... 57
Consolidated Statements of Stockholder's Equity
for the years ended December 31, 2000, 1999 and 1998 .................. 58
Consolidated Statements of Cash Flows for the years ended
December 31, 2000, 1999 and 1998 ...................................... 59-60
Notes to Consolidated Financial Statements .............................. 61
Financial Statement Schedule - Schedule III ............................. 80-83
All other schedules for which a provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore have been omitted.
54
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
Boston Properties, Inc.:
In our opinion, the accompanying consolidated financial statements and the
financial statement schedule listed in the accompanying index present fairly, in
all material respects, the financial position of Boston Properties, Inc. (the
"Company") at December 31, 2000 and 1999, and the results of its operations and
its cash flows for each of the three years in the period ended December 31, 2000
in conformity with accounting principles generally accepted in the United States
of America. These financial statements and financial statement schedule are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements and financial statement schedule based on
our audits. We conducted our audits of these statements in accordance with
auditing standards generally accepted in the United States of America, which
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements and financial statement schedule are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements and financial
statement schedule, assessing the accounting principles used and significant
estimates made by management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
January 24, 2001
55
<PAGE>
BOSTON PROPERTIES, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
--------------------------------------
2000 1999
----------- -----------
(in thousands, except for share amounts)
<S> <C> <C>
ASSETS
Real estate: $ 6,112,779 $ 5,609,424
Less: accumulated depreciation (586,719) (470,591)
----------- -----------
Total real estate 5,526,060 5,138,833
Cash and cash equivalents 280,957 12,035
Escrows 85,561 40,254
Investments in securities 7,012 14,460
Tenant and other receivables (net of allowance for doubtful 26,852 28,259
accounts of $2,112 and $3,254, respectively)
Accrued rental income (net of allowance of $3,300 and 91,684 82,228
$3,300, respectively)
Deferred charges, net 77,319 53,733
Prepaid expenses and other assets 41,154 28,452
Investments in unconsolidated joint ventures 89,871 36,518
----------- -----------
Total assets $ 6,226,470 $ 5,434,772
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Mortgage notes and bonds payable $ 3,414,891 $ 2,955,584
Unsecured line of credit -- 366,000
Accounts payable and accrued expenses 57,338 66,780
Dividends and distributions payable 71,274 50,114
Accrued interest payable 5,599 8,486
Other liabilities 51,926 48,282
----------- -----------
Total liabilities 3,601,028 3,495,246
----------- -----------
Commitments and contingencies -- --
----------- -----------
Minority interests 877,715 781,962
----------- -----------
Series A Convertible Redeemable Preferred Stock, liquidation
preference $50.00 per share, 2,000,000 shares issued
and outstanding 100,000 100,000
----------- -----------
Stockholders' equity:
Excess stock, $.01 par value, 150,000,000 shares
authorized, none issued or outstanding -- --
Common stock, $.01 par value, 250,000,000 shares
authorized, 86,630,089 and 67,910,434 issued and
outstanding in 2000 and 1999, respectively 866 679
Additional paid-in capital 1,673,349 1,067,778
Dividends in excess of earnings (13,895) (10,893)
Unearned compensation (848) --
Accumulated other comprehensive loss (11,745) --
----------- -----------
Total stockholders' equity 1,647,727 1,057,564
----------- -----------
Total liabilities and stockholders' equity $ 6,226,470 $ 5,434,772
=========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
56
<PAGE>
BOSTON PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Year ended December 31,
-----------------------------------
2000 1999 1998
--------- --------- ---------
(in thousands, except for per share amounts)
<S> <C> <C> <C>
Revenue
Rental:
Base rent $ 715,358 $ 646,924 $ 419,756
Recoveries from tenants 92,692 72,742 48,718
Parking and other 50,892 45,751 19,103
--------- --------- ---------
Total rental revenue 858,942 765,417 487,577
Development and management services 11,837 14,708 12,411
Interest and other 8,574 6,439 13,859
--------- --------- ---------
Total revenue 879,353 786,564 513,847
--------- --------- ---------
Expenses
Operating 264,701 249,268 150,490
General and administrative 35,659 29,455 22,504
Interest 217,064 205,410 124,860
Depreciation and amortization 133,150 120,059 75,418
--------- --------- ---------
Total expenses 650,574 604,192 373,272
--------- --------- ---------
Income before minority interests and joint venture income 228,779 182,372 140,575
Minority interest in property partnerships (932) (4,614) (2,554)
Income from unconsolidated joint ventures 1,758 468 --
--------- --------- ---------
Income before minority interest in Operating Partnership 229,605 178,226 138,021
Minority interest in Operating Partnership (76,039) (64,917) (39,428)
--------- --------- ---------
Income before gain (loss) on sale of real estate 153,566 113,309 98,593
Gain (loss) on sale of real estate, net of minority interest (234) 6,467 --
--------- --------- ---------
Income before extraordinary items 153,332 119,776 98,593
Extraordinary loss, net of minority interest (334) -- (5,481)
--------- --------- ---------
Net income before preferred dividend 152,998 119,776 93,112
Preferred dividend (6,572) (5,829) --
--------- --------- ---------
Net income available to common shareholders $ 146,426 $ 113,947 $ 93,112
========= ========= =========
Basic earnings per share:
Income before extraordinary items $ 2.05 $ 1.72 $ 1.62
Extraordinary loss, net of minority interest -- -- (0.09)
--------- --------- ---------
Net income available to common shareholders $ 2.05 $ 1.72 $ 1.53
========= ========= =========
Weighted average number of common shares outstanding 71,424 66,235 60,776
========= ========= =========
Diluted earnings per share:
Income before extraordinary items $ 2.01 $ 1.71 $ 1.61
Extraordinary loss, net of minority interest -- -- (0.09)
--------- --------- ---------
Net income available to common shareholders $ 2.01 $ 1.71 $ 1.52
========= ========= =========
Weighted average number of common and common
equivalent shares outstanding 72,741 66,776 61,308
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
57
<PAGE>
BOSTON PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(in thousands)
<TABLE>
<CAPTION>
Common Stock Additional Dividends
------------ Paid-in in excess of
Shares Amount Capital Earnings
------ ------ ------- --------
<S> <C> <C> <C> <C>
Stockholders' Equity, December 31, 1997 38,694 $ 387 $ 172,347 $ 2,314
Sale of Common Stock net of offering costs 23,000 230 764,760
Unregistered Common Stock issued 1,823 18 58,819
Conversion of operating partnership units to Common Stock 10 -- 250
Allocation of minority interest (40,490)
Net income for the year 93,112
Dividends declared (103,291)
Stock options exercised 1 -- 25
------ ----- ----------- ---------
Stockholders' Equity, December 31, 1998 63,528 635 955,711 (7,865)
Sale of Common Stock net of offering costs 4,000 40 140,648
Unregistered Common Stock issued 343 4 12,321
Conversion of operating partnership units to Common Stock 10 -- 260
Allocation of minority interest (41,965)
Net income for the year 113,947
Dividends declared (116,975)
Shares issued pursuant to stock purchase plan 5 -- 181
Stock options exercised 24 -- 622
------ ----- ----------- ---------
Stockholders' Equity, December 31, 1999 67,910 679 1,067,778 (10,893)
Sale of Common Stock net of offering costs 17,110 171 633,591
Unregistered Common Stock issued 439 4 18,156
Conversion of operating partnership units to Common Stock 614 6 20,239
Allocation of minority interest (85,809)
Net income for the year 146,426
Dividends declared (149,428)
Shares issued pursuant to stock purchase plan 11 -- 374
Stock options exercised 511 5 17,961
Issuance of restricted stock 35 1 1,059
Amortization of restricted stock award
Unrealized holding losses
------ ----- ----------- ---------
Stockholders' Equity, December 31, 2000 86,630 $ 866 $ 1,673,349 $ (13,895)
====== ===== =========== =========
<CAPTION>
Accumulated
Other
Unearned Comprehensive
Compensation Loss Total
------------ ---- -----
<S> <C> <C> <C>
Stockholders' Equity, December 31, 1997 $ 175,048
Sale of Common Stock net of offering costs 764,990
Unregistered Common Stock issued 58,837
Conversion of operating partnership units to Common Stock 250
Allocation of minority interest (40,490)
Net income for the year 93,112
Dividends declared (103,291)
Stock options exercised 25
------ --------- -----------
Stockholders' Equity, December 31, 1998 948,481
Sale of Common Stock net of offering costs 140,688
Unregistered Common Stock issued 12,325
Conversion of operating partnership units to Common Stock 260
Allocation of minority interest (41,965)
Net income for the year 113,947
Dividends declared (116,975)
Shares issued pursuant to stock purchase plan 181
Stock options exercised 622
------ --------- -----------
Stockholders' Equity, December 31, 1999 1,057,564
Sale of Common Stock net of offering costs 633,762
Unregistered Common Stock issued 18,160
Conversion of operating partnership units to Common Stock 20,245
Allocation of minority interest (85,809)
Net income for the year 146,426
Dividends declared (149,428)
Shares issued pursuant to stock purchase plan 374
Stock options exercised 17,966
Issuance of restricted stock $(1,060) --
Amortization of restricted stock award 212 212
Unrealized holding losses $ (11,745) (11,745)
------- --------- -----------
Stockholders' Equity, December 31, 2000 $ (848) $ (11,745) $ 1,647,727
======= ========= ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
58
<PAGE>
BOSTON PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For the year ended December 31,
-----------------------------------------
2000 1999 1998
----------- ----------- -----------
(in thousands)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income before preferred dividend $ 152,998 $ 119,776 $ 93,112
Adjustments to reconcile net income before preferred dividend
to net cash provided by operating activities:
Depreciation and amortization 133,150 120,059 75,418
Non-cash portion of interest expense 3,693 2,364 247
Loss (gain) on sale of real estate 314 (8,736) --
Extraordinary loss 433 -- 7,743
Distributions in excess of earnings from unconsolidated joint ventures 90 (468) --
Compensation related to restricted shares 212 -- --
Non-cash compensation 1,958 -- --
Minority interests 75,860 67,186 38,760
Change in assets and liabilities:
Escrows 12,303 (21,240) (4,836)
Tenant and other receivables, net 1,407 12,571 (16,372)
Accrued rental income, net (14,509) (17,977) (9,061)
Prepaid expenses and other assets (12,702) (10,354) (5,833)
Accounts payable and accrued expenses (14,300) 23,277 19,075
Accrued interest payable (2,887) 1,179 726
Other liabilities 1,644 15,832 16,308
----------- ----------- -----------
Total adjustments 186,666 183,693 122,175
----------- ----------- -----------
Net cash provided by operating activities 339,664 303,469 215,287
----------- ----------- -----------
Cash flows from investing activities:
Acquisitions/additions to real estate (604,164) (661,007) (1,697,449)
Tenant leasing costs (21,032) (11,329) (17,979)
Investments in unconsolidated joint ventures (16,582) 10,737 (43,644)
Net proceeds from sales of real estate 70,712 13,103 --
Investments in securities (2,297) (6,500) --
Notes receivable -- -- (420,143)
----------- ----------- -----------
Net cash used in investing activities (573,363) (654,996) (2,179,215)
----------- ----------- -----------
Cash flows from financing activities:
Net proceeds from the issuance of common and preferred stock 633,762 240,688 819,103
Borrowings on unsecured line of credit 184,000 696,000 322,000
Repayments of unsecured line of credit (550,000) (345,000) (540,000)
Repayments of mortgage notes (525,241) (33,362) (159,714)
Proceeds from mortgage notes 976,390 307,525 1,226,717
Proceeds from (repayments of) notes payable -- (328,143) 420,143
Dividends and distributions (209,723) (181,493) (127,307)
Proceeds from exercise of stock options 16,008 622 --
Proceeds from employee stock purchase plan 374 181 --
Deferred financing costs (22,949) (5,622) (2,408)
----------- ----------- -----------
Net cash provided by financing activities 502,621 351,396 1,958,534
----------- ----------- -----------
Net increase (decrease) in cash 268,922 (131) (5,394)
Cash and cash equivalents, beginning of period 12,035 12,166 17,560
----------- ----------- -----------
Cash and cash equivalents, end of period $ 280,957 $ 12,035 $ 12,166
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements
59
<PAGE>
BOSTON PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS, CONTINUED
<TABLE>
<CAPTION>
For the year ended December 31,
---------------------------------
2000 1999 1998
--------- --------- ---------
(in thousands)
<S> <C> <C> <C>
Supplemental disclosures:
Cash paid for interest $ 253,971 $ 218,820 $ 46,422
========= ========= =========
Interest capitalized $ 37,713 $ 16,953 $ 6,933
========= ========= =========
Non-cash investing and financing activities:
Additions to real estate included in accounts payable $ 4,858 $ 606 $ 6,198
========= ========= =========
Mortgage notes payable assumed in connection with acquisitions $ 117,831 $ 28,331 $ 496,926
========= ========= =========
Mortgage notes payable assigned in connection with the sale of real estate $ 166,547 $ -- $ --
========= ========= =========
Bonds payable proceeds escrowed $ 57,610 $ -- $ --
========= ========= =========
Issuance of minority interest in connection with acquisitions $ 44,712 $ 2,063 $ 941,318
========= ========= =========
Dividends and distributions declared but not paid $ 71,274 $ 50,114 $ 40,494
========= ========= =========
Notes receivable assigned in connection with an acquisition $ -- $ 420,143 $ --
========= ========= =========
Notes payable assigned in connection with an acquisition $ -- $ 92,000 $ --
========= ========= =========
Common Stock issued in connection with an acquisition of real estate $ 2,660 $ 12,325 $ 5,000
========= ========= =========
Common Stock issued in connection with an acquisition of minority interest $ 15,500 $ -- $ --
========= ========= =========
Conversion of Operating Partnership Units to Common Stock $ 20,245 $ 260 $ 250
========= ========= =========
Real estate contributed to joint ventures $ 36,999 $ -- $ --
========= ========= =========
Unrealized loss related to investments in securities $ 11,745 $ -- $ --
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements
60
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
1. Organization and Basis of Presentation
Organization
Boston Properties, Inc. (the "Company"), a Delaware corporation, is a
self-administered and self-managed real estate investment trust ("REIT"). Boston
Properties, Inc. is the sole general partner of Boston Properties Limited
Partnership (the "Operating Partnership") and at December 31, 2000, owned an
approximate 71.9% general and limited partnership interest in the Operating
Partnership. Partnership interests in the Operating Partnership are denominated
as "common units of partnership interest" (also referred to as "OP Units") or
"preferred units of partnership interest" (also referred to as "Preferred
Units"). All references to OP Units and Preferred Units exclude such units held
by the Company. A holder of an OP Unit may present such OP Unit to the Operating
Partnership for redemption at any time (subject to restrictions agreed upon at
the issuance of OP Units to particular holders that may restrict such right for
a period of time, generally one year from issuance). Upon presentation of an OP
Unit for redemption, the Operating Partnership must redeem such OP Unit for cash
equal to the then value of a share of common stock of the Company ("Common
Stock"), except that, the Company may, at its election, in lieu of a cash
redemption, acquire such OP Unit for one share of Common Stock. Because the
number of shares of Common Stock outstanding at all times equals the number of
OP Units that the Company owns, one share of Common Stock is generally the
economic equivalent of one OP Unit, and the quarterly distribution that may be
paid to the holder of an OP Unit equals the quarterly dividend that may be paid
to the holder of a share of Common Stock. Each series of Preferred Units bears a
distribution that is set in accordance with an amendment to the partnership
agreement of the Operating Partnership. Preferred Units may also be convertible
into OP Units at the election of the holder thereof or the Company, subject to
the terms of such Preferred Units.
All references to the Company hereafter refer to Boston Properties, Inc.
and its subsidiaries, including the Operating Partnership, collectively, unless
the context otherwise requires.
Properties
At December 31, 2000, the Company owned a portfolio of 145 commercial real
estate properties (136 properties at December 31, 1999) (the "Properties")
aggregating more than 37.9 million net rentable square feet (including 15
properties under construction totaling approximately 4.5 million net rentable
square feet). The Properties consist of 134 office properties, including 103
Class A office properties and 31 Research and Development properties; eight
industrial properties; three hotels; and structured parking for 17,179 vehicles
containing approximately 6.0 million square feet. In addition, the Company owns
or controls 49 parcels of land totaling 558.3 acres (which will support
approximately 10.6 million net rentable square feet of development). The Company
considers Class A office properties to be centrally located buildings that are
professionally managed and maintained, that attract high-quality tenants and
command upper-tier rental rates, and that are modern structures or have been
modernized to compete with newer buildings. The Company considers Research and
Development properties to be properties that support office, research and
development and other technical uses.
61
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
Basis of Presentation
The consolidated financial statements of the Company include all the
accounts of the Company, its majority-owned Operating Partnership, and
subsidiaries. All significant intercompany balances and transactions have been
eliminated.
2. Summary of Significant Accounting Policies
Real Estate
Real estate is stated at depreciated cost. The Company periodically
reviews its properties to determine if its carrying costs will be recovered from
future operating cash flows. If the Company determines that an impairment has
occurred, those assets shall be reduced to fair value. No such impairment losses
have been recognized to date.
The cost of buildings and improvements include the purchase price of
property, legal fees and acquisition costs. The costs of buildings under
development include the capitalization of interest, property taxes and other
costs incurred during the period of development.
Expenditures for repairs and maintenance are charged to operations as
incurred. Significant betterments are capitalized. When assets are sold or
retired, their costs and related accumulated depreciation are removed from the
accounts with the resulting gains or losses reflected in net income or loss for
the period.
Depreciation is computed on the straight-line basis over the estimated
useful lives of the assets as follows:
Land improvements 25 to 40 years
Buildings and improvements 10 to 40 years
Tenant improvements Shorter of useful life
or terms of related lease
Furniture, fixtures, and equipment 3 to 7 years
Cash and Cash Equivalents
Cash and cash equivalents consist of cash on hand and investments with
maturities of three months or less from the date of purchase. The majority of
the Company's cash and cash equivalents are held at major commercial banks. The
Company has not experienced any losses to date on its invested cash.
Escrows
Escrows include amounts established pursuant to various agreements for
security deposits, property taxes, insurance and other costs. At December 31,
2000, proceeds of $57.6 million from the permanent financing of a development
property have been deposited into an escrow account and recorded in mortgage
notes and bonds payable until the completion of construction on the development
property, at which time the construction loan will be repaid and the proceeds
will be available to the Company.
62
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
Investments in Securities
The Company accounts for investments in securities of publicly traded
companies in accordance with Statement of Financial Accounting Standard ("SFAS")
No. 115 "Accounting for Certain Investments in Debt and Equity Investments" and
has classified the securities as available-for-sale. Investments in securities
of non-publicly traded companies are recorded at cost as they are not considered
marketable under SFAS 115. As of December 31, 2000, the fair value of the
investments in common stocks and warrants was approximately $7.0 million. The
gross unrealized holding loss of approximately $11.7 million is included in
accumulated other comprehensive loss on the consolidated balance sheets. At
December 31, 1999, the investments in securities were reflected at cost in the
consolidated balance sheet, as they were not considered marketable under SFAS
No. 115.
Deferred Charges
Deferred charges include leasing costs and financing fees. Fees and costs
incurred in the successful negotiation of leases, including brokerage, legal and
other costs have been deferred and are being amortized on a straight-line basis
over the terms of the respective leases. Fees and costs incurred to obtain
long-term financing have been deferred and are being amortized over the terms of
the respective loans on a basis that approximates the effective interest method
and are included with interest expense. Unamortized financing and leasing costs
are charged to expense upon the early repayment of financing or upon the early
termination of the lease. Fully amortized deferred charges are removed from the
books upon the expiration of the lease or maturity of the debt.
Investments in Unconsolidated Joint Ventures
The Company accounts for its investments in joint ventures, which it does
not control, using the equity method of accounting. Under the equity method of
accounting, the net equity investment of the Company is reflected on the
consolidated balance sheets, and the Company's share of net income or loss from
the joint ventures is included on the consolidated statements of operations.
The Company serves as the development manager for the joint ventures
currently under development. The profit on development fees received from joint
ventures is recognized to the extent attributable to the outside interests in
the joint ventures.
Offering Costs
Underwriting commissions and offering costs have been reflected as a
reduction of additional paid-in capital.
Dividends
Earnings and profits, which determine the taxability of dividends to
shareholders, will differ from income reported for financial reporting purposes
due to the differences for federal income tax purposes primarily in the
estimated useful lives used to compute depreciation. Dividends declared
represented 100% ordinary income for federal income tax purposes for the
63
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
years ended December 31, 2000, 1999 and 1998.
Revenue Recognition
Base rental revenue is reported on a straight-line basis over the terms of
the respective leases. The impact of the straight-line rent adjustment increased
revenue by $13,071, $17,044, and $18,510 for the years ended December 31, 2000,
1999 and 1998, respectively. Property operating cost reimbursements due from
tenants for common area maintenance, real estate taxes and other recoverable
costs are recognized in the period the expenses are incurred.
Accrued rental income represents rental income earned in excess of rent
payments received pursuant to the terms of the individual lease agreements, net
of an allowance for doubtful accounts.
Development fees are recognized ratably over the period of development.
Management fees are recognized as revenue as they are earned.
The estimated fair value of warrants received in conjunction with
communications license agreements are recognized over the ten-year effective
terms of the license agreements.
Interest Expense and Interest Rate Protection Agreements
Interest expense on fixed rate debt with predetermined periodic rate
increases is computed using the effective interest method over the terms of the
respective loans.
The Company has entered into certain interest rate protection agreements
to reduce the impact of changes in interest rates on its variable rate debt.
Amounts paid for the agreements are amortized over the lives of the agreements
on a basis that approximates the effective interest method.
Earnings Per Share
Basic earnings per share ("EPS") is computed by dividing net income by the
weighted average number of shares of Common Stock outstanding during the year.
Diluted EPS reflects the potential dilution that could occur from shares
issuable through stock-based compensation including stock options, conversion of
the minority interests in the Operating Partnership and conversion of the
preferred stock of the Company.
Fair Value of Financial Instruments
The carrying values of cash and cash equivalents, escrows, receivables,
accounts payable, accrued expenses and other assets and liabilities are
reasonable estimates of their fair values because of the short maturities of
these instruments. Mortgage notes payable have aggregate carrying values that
approximate their estimated fair values based upon the remaining maturities for
certain debt and interest rates for debt with similar terms and remaining
maturities. The fair value of these financial instruments were not materially
different from their carrying or contract values.
Income Taxes
The Company has elected to be treated as a REIT under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended (the "Code"), commencing
with its taxable year
64
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
ended December 31, 1997. As a result, the Company generally will not be subject
to federal corporate income tax on its taxable income that is distributed to its
shareholders. A REIT is subject to a number of organizational and operational
requirements, including a requirement that it currently distribute at least 95%
of its annual taxable income (90% effective January 1, 2001). The Company's
policy is to distribute 100% of its taxable income. Accordingly, no provision
has been made for federal income taxes in the accompanying consolidated
financial statements.
To assist the Company in maintaining its status as a REIT, the Company
leases its three in-service hotel properties, pursuant to leases with a
participation in the gross receipts of such hotel properties, to a lessee ("ZL
Hotel LLC") in which Messrs. Zuckerman and Linde, the Chairman of the Board and
Chief Executive Officer, respectively, are the sole member-managers. Marriott
International, Inc. manages these hotel properties under the Marriott(R) name
pursuant to management agreements with the lessee. Rental revenue from these
leases totaled approximately $38.1 million, $32.1 million and $25.7 million for
the years ended December 31, 2000, 1999 and 1998, respectively.
The net difference between the tax basis and the reported amounts of the
Company's assets and liabilities is approximately $1.2 billion as of December
31, 2000 and 1999.
Certain entities included in the Company's consolidated financial
statements are subject to District of Columbia franchise taxes. Franchise taxes
are recorded as operating expenses in the accompanying consolidated financial
statements.
Reclassifications
Certain prior-year balances have been reclassified in order to conform to
current-year presentation.
Use of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenue and expenses during
the reporting period. These estimates include such items as depreciation,
allowances for doubtful accounts and accrued rent. Actual results could differ
from those estimates.
65
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
3. Real Estate
Real estate consisted of the following at December 31:
2000 1999
---------- ----------
Land $ 965,140 $ 956,222
Land held for future development 107,005 127,508
Buildings and improvements 3,939,857 3,962,789
Tenant improvements 225,305 186,878
Furniture, fixtures and equipment 57,994 38,537
Development in process 817,478 337,490
---------- ----------
Total 6,112,779 5,609,424
Less: Accumulated depreciation (586,719) (470,591)
---------- ----------
$5,526,060 $5,138,833
========== ==========
4. Deferred Charges
Deferred charges consisted of the following at December 31:
2000 1999
-------- --------
Leasing costs $ 88,681 $ 69,530
Financing costs 51,453 33,954
-------- --------
140,134 103,484
Less: Accumulated amortization (62,815) (49,751)
-------- --------
$ 77,319 $ 53,733
======== ========
5. Investments in Unconsolidated Joint Ventures
The investments in unconsolidated joint ventures consists of the
following:
<TABLE>
<CAPTION>
%
Entity Property Ownership
---------------------------------------- ------------------------ ------------
<S> <C> <C>
One Freedom Square LLC One Freedom Square 25% (1)
Square 407 LP Market Square North 50%
The Metropolitan Square Associates LLC Metropolitan Square 51%
BP 140 Kendrick Street LLC 140 Kendrick Street 25% (1)
BP/CRF 265 Franklin Street
Holdings LLC 265 Franklin Street 35%
Discovery Square LLC Discovery Square (2) 50%
BP/CRF 901 New York Avenue LLC 901 New York Avenue (3) 25% (1)
Two Freedom Square LLC Two Freedom Square (2) 50%
</TABLE>
(1) Ownership can increase based on certain return hurdles
(2) Property is currently under development
(3) Land held for development
66
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
The combined summarized financial information of the unconsolidated joint
ventures are as follows:
<TABLE>
<CAPTION>
December 31,
-------------------------
Balance Sheets 2000 1999
-------- --------
<S> <C> <C>
Real estate and development in process, net $640,688 $236,995
Other assets 30,919 10,473
-------- --------
Total assets $671,607 $247,468
======== ========
Mortgage and construction loans payable $446,520 $164,185
Other liabilities 10,904 6,770
Partners' equity 214,183 76,513
-------- --------
Total liabilities and partners' equity $671,607 $247,468
======== ========
Company's share of equity $89,871 $36,518
======== ========
<CAPTION>
Statements of Operations (1) Year Ended December 31,
-------------------------
2000 1999
-------- --------
<S> <C> <C>
Total revenue $42,754 $12,836
Total expenses 37,978 10,383
-------- --------
Net income $4,776 $2,453
======== ========
Company's share of net income $1,758 $468
======== ========
</TABLE>
(1) There were no in-service joint ventures during the year ended
December 31, 1998.
6. Mortgage Notes and Bonds Payable
The Company had outstanding mortgage notes and bonds payable totaling
$3,414,891 and $2,955,584 as of December 31, 2000 and 1999, respectively, each
collateralized by one or more buildings and related land included in real estate
assets. The mortgage notes payable are generally due in monthly installments and
mature at various dates through August 1, 2021.
Fixed rate mortgage notes and bonds payable totaled approximately
$3,010,760 and $2,820,650 at December 31, 2000 and 1999, respectively, with
interest rates ranging from 6.40% to 8.59% (averaging 7.21% and 7.06% at
December 31, 2000 and 1999, respectively).
Variable rate mortgage notes payable (including construction loans
payable) totaled approximately $404,131 and $134,934 at December 31, 2000 and
1999, respectively, with interest rates ranging from 1.00% above the London
Interbank Offered Rate ("LIBOR") (6.57% and 5.82% at December 31, 2000 and 1999,
respectively) to 2.00% above LIBOR.
At December 31, 2000, the Company had hedge contracts totaling $450.0
million. The hedging agreements provide for a fixed interest rate when LIBOR is
less than 5.76% and when LIBOR is greater than 6.35% or 7.95% for terms
remaining from two to four years per the individual hedging agreements. In
addition, the Company has an interest rate swap agreement for a total of $213.0
million which provides for a fixed interest rate of 6.0% through September 11,
2002.
Mortgage notes payable aggregating approximately $190,492 and $207,132 at
December
67
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
31, 2000 and 1999, respectively, are subject to periodic scheduled interest rate
increases. Interest expense for these mortgage notes payable is computed using
the effective interest method. Mortgage notes payable aggregating approximately
$224,818 and $320,110 at December 31, 2000 and 1999, respectively, have been
accounted for at their fair value on the date the mortgage loans were assumed.
The impact of using these accounting methods decreased interest expense by
$3,579, $4,742 and $2,656 for the years ended December 31, 2000, 1999 and 1998,
respectively. The cumulative liability related to these accounting methods was
$9,642 and $13,575 at December 31, 2000 and 1999, respectively, and is included
in mortgage notes and bonds payable.
Combined aggregate principal payments of mortgage notes and bonds payable
at December 31, 2000 are as follows:
2001 $ 193,947
2002 $ 306,223
2003 $ 434,342
2004 $ 134,964
2005 $ 269,378
Thereafter $2,076,037
7. Unsecured Line of Credit
As of December 31, 2000, the Company has an agreement for a $605,000
unsecured revolving credit facility (the "Unsecured Line of Credit") maturing in
March 2003. Outstanding balances under the Unsecured Line of Credit currently
bear interest at a floating rate based on an increase over Eurodollar from 105
to 170 basis points, depending upon the Company's applicable leverage ratio, or
the lender's prime rate. The Unsecured Line of Credit requires monthly payments
of interest only.
The outstanding balance of the Unsecured Line of Credit was $0 and
$366,000 at December 31, 2000 and 1999, respectively. The weighted average
balance outstanding was approximately $233,052 and $256,685 during the year
ended December 31, 2000 and 1999, respectively. The weighted-average interest
rate on amounts outstanding was approximately 7.65% and 6.50% during the year
ended December 31, 2000 and 1999, respectively.
The Company's ability to borrow under the Unsecured Line of Credit is
subject to the Company's ongoing compliance with a number of financial and other
covenants, including, but not limited to, maintaining a certain ratio of secured
indebtedness to total asset value, as defined.
8. Commitments and Contingencies
Concentrations of Credit Risk
Management of the Company performs ongoing credit evaluations of tenants
and may require tenants to provide some form of credit support such as corporate
guarantees and/or other financial guarantees. Although the Company's properties
are geographically diverse and the tenants operate in a variety of industries,
to the extent the Company has a significant
68
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
concentration of rental revenue from any single tenant, the inability of that
tenant to make its lease payments could have an adverse effect on the Company.
Legal Matters
The Company is subject to various legal proceedings and claims that arise
in the ordinary course of business. These matters are generally covered by
insurance. Management believes that the final outcome of such matters will not
have a material adverse effect on the financial position, results of operations
or liquidity of the Company.
Environmental Matters
Some of the Properties are located in urban and industrial areas where
fill or current or historical industrial uses of the areas have caused site
contamination. With respect to all of the Properties, independent environmental
consultants have been retained in the past to conduct or update Phase I
environmental assessments (which generally do not involve invasive techniques
such as soil or ground water sampling) and asbestos surveys on all of the
Properties. These environmental assessments have not revealed any environmental
conditions that the Company believes will have a material adverse effect on its
business, assets or results of operations, and the Company is not aware of any
other environmental condition with respect to any of the Properties which the
Company believes would have such a material adverse effect.
On January 15, 1992, a property in Massachusetts was listed by the state
regulatory authority as an unclassified Confirmed Disposal Site in connection
with groundwater contamination. The Company engaged a specially licensed
environmental consultant to perform the necessary investigation and assessment
and to prepare submittals to the state regulatory authority. On August 1, 1997,
such consultant submitted to the state regulatory authority a Phase I - Limited
Site Investigation Report and Downgradient Property Status Opinion. This Opinion
concluded that the property qualifies for Downgradient Property Status under the
state regulatory program, which eliminates certain deadlines for conducting
response actions at a site and may qualify the Company for liability relief
under recent statutory amendments. Although the Company believes that the
current or former owners of the upgradient source properties may ultimately be
responsible for some or all of the costs of such response actions, the Company
will take any necessary further response actions.
An investigation at an additional property in Massachusetts identified
groundwater contamination. The Company engaged a specially licensed
environmental consultant to perform the necessary investigation and assessment
and to prepare submittals to the state regulatory authority. On March 11, 1998,
the consultant submitted to the state regulatory authority a Release
Notification and Downgradient Property Status Opinion. This Opinion concluded
that the property qualifies for Downgradient Property Status under the state
regulatory program, which eliminates certain deadlines for conducting response
actions at a site and may qualify the Company for liability relief under recent
statutory amendments. Although the Company believes that the current or former
owners of the upgradient source properties may ultimately be responsible for
some or all of the costs of such response actions, the Company will take any
necessary further response actions.
69
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
In February 1999, an affiliate of the Company acquired from Exxon
Corporation a property in Massachusetts that was formerly used as a petroleum
bulk storage and distribution facility and was known by the state regulatory
authority to contain soil and groundwater contamination. The Company anticipates
development of an office park on the property. Pursuant to the property
acquisition agreement, Exxon has agreed to (1) bear the liability arising from
releases or discharges of oil and hazardous substances which occurred at the
site prior to the Company's ownership, (2) continue remediating such releases
and discharges as necessary and appropriate to comply with applicable
requirements, and (3) indemnify the purchaser for certain losses arising from
preexisting site conditions, including up to $500,000 for the premium costs
associated with construction-related management of contaminated soil not
otherwise subject to remediation by Exxon. Any indemnity claim may be subject to
various defenses. The affiliate has engaged a specially licensed environmental
consultant to perform necessary pre-construction assessment activities and to
oversee the management of contaminated soil that may be disturbed in the course
of construction.
The Company expects that any resolution of the environmental matters
relating to the above will not have a material impact on the financial position,
results of operations or liquidity of the Company.
Development
The Company has entered into contracts for the construction and renovation
of properties currently under construction. Commitments under these arrangements
totaled approximately $677,654 and $759,501 at December 31, 2000 and 1999,
respectively.
Sale of Property
The Operating Partnership Agreement provides that, until June 23, 2007,
the Operating Partnership may not sell or otherwise transfer four designated
properties in a taxable transaction without the prior written consent of the
Chairman and Chief Executive Officer. In connection with the acquisition or
contribution of 31 other Properties, the Company entered into similar agreements
for the benefit of the selling or contributing parties which specifically state
the Company will not sell or otherwise transfer the Properties in a taxable
transaction until a period ranging from June 2002 to November 2008. The
Operating Partnership is not required to obtain the consent from a party
protected thereby if such party does not continue to hold at least a specified
percentage of such party's original OP Units.
9. Minority Interests
Minority interests primarily relate to the interests of the Company in the
Operating Partnership. As of December 31, 2000, the minority interest in the
Operating Partnership consisted of 23,862,206 OP Units and 9,357,536 Preferred
Units held by parties other than the Company.
On March 1, 2000, the Operating Partnership issued 577,817 OP Units valued
at approximately $17.5 million in connection with the acquisition of three
office properties at Carnegie Center in Princeton, New Jersey.
70
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
On June 19, 2000, the Operating Partnership issued 82,215 OP Units valued
at approximately $3.0 million in connection with the acquisition of a land
parcel in Chelmsford, Massachusetts.
On December 11, 2000, the Operating Partnership issued 650,876 Series Z
Preferred Units of limited partnership of the Operating Partnership (the "Series
Z Preferred Units"), valued at approximately $24.2 million, in connection with
the acquisition of a 3.7-acre site known as the Plaza at Almaden in San Jose,
California.
The Preferred Units at December 31, 2000 consist of 2,493,529 Series One
Preferred Units of limited partnership in the Operating Partnership (the "Series
One Preferred Units"), which bear a preferred distribution of 7.25% per annum on
a liquidation preference of $34.00 per unit and are convertible into OP Units at
a rate of $38.25 per Preferred Unit; 6,213,131 Series Two and Three Preferred
Units of limited partnership in the Operating Partnership (the "Series Two and
Three Preferred Units"), which bear a preferred distribution at an increasing
rate, ranging from 5.00% to 7.00% per annum on a liquidation preference of
$50.00 per unit and are convertible into OP Units at a rate of $38.10 per
Preferred Unit; and 650,876 Series Z Preferred Units, which bear distributions
at a rate ranging from zero to the distribution rate of an OP Unit, with a
liquidation preference of $37.25 per unit and are convertible into OP Units at a
rate equal to the greater of (1) one for one or (2) $37.25 divided by the fair
market value of an OP Unit. Distributions to holders of Preferred Units are
recognized on a straight-line basis that approximates the effective interest
method.
10. Redeemable Preferred Stock and Stockholders' Equity
On August 22, 2000, the Company issued 439,059 unregistered shares of
Common Stock for approximately $18.2 million, in connection with its acquisition
of the remaining 50% interest in the development rights associated with the
Prudential Center in Boston, Massachusetts.
On October 31, 2000, the Company completed a public offering of 17,110,000
shares of Common Stock at a price per share to the public of $39.0625 (including
2,110,000 shares issued as a result of the exercise of an overallotment option
by the underwriters on November 2, 2000), resulting in net proceeds to the
Company, net of underwriter's discount and offering costs, of approximately
$633.8 million.
As of December 31, 2000, the Company had 86,630,089 shares of Common Stock
and 2,000,000 shares of Series A Convertible Redeemable Preferred Stock (the
"Preferred Stock") outstanding. The Preferred Stock bears a preferred dividend
at an increasing rate, ranging from 5.00% to 7.00% per annum on a liquidation
preference of $50.00 per share and are convertible into Common Stock at a rate
of $38.10 per share. The preferred dividend is recognized on a straight-line
basis that approximates the effective interest method. These shares of Preferred
Stock are not classified as equity in certain instances as they are convertible
into shares of Common Stock at the election of the holder after December 31,
2002 or are redeemable for cash at the election of the holder in six annual
tranches commencing on May 12, 2009.
71
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
11. Future Minimum Rents
The Properties are leased to tenants under net operating leases with
initial term expiration dates ranging from 2001 to 2029. The future minimum
lease payments to be received (excluding operating expense reimbursements) by
the Company as of December 31, 2000, under non-cancelable operating leases, are
as follows:
Years Ending December 31,
(in thousands)
2001 $ 706,952
2002 696,506
2003 679,060
2004 623,224
2005 547,914
Thereafter 2,509,988
The geographic concentration of the future minimum lease payments to be
received is detailed as follows:
Location (in thousands)
------------------ --------------
Greater Boston $1,243,948
Greater Washington, DC 1,532,001
New Jersey and Pennsylvania 382,014
Midtown Manhattan 1,651,524
Greater San Francisco 954,157
No one tenant represented more than 10.0% of the Company's total rental
income for the years ended December 31, 2000, 1999 and 1998.
12. Segment Reporting
The Company has determined that its reportable segments are those that are
based on the Company's method of internal reporting, which classifies its
operations by both geographic area and property type. The Company's reportable
segments by geographic area are: Greater Boston, Greater Washington, DC, Midtown
Manhattan, Greater San Francisco, and New Jersey and Pennsylvania. Segments by
property type include: Class A Office, R&D, Industrial, Hotel and Garage.
Asset information by reportable segment is not reported, since the Company
does not use this measure to assess performance; therefore, the depreciation and
amortization expenses are not allocated among segments. Development and
management services revenue, interest and other revenue, general and
administrative expenses and interest expense are not included in operating
72
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
income, as the internal reporting addresses these on a corporate level.
Information by Geographic Area and Property Type:
For the year ended December 31, 2000:
<TABLE>
<CAPTION>
New Jersey
Greater Greater Midtown Greater San and
Boston Washington, DC Manhattan Francisco Pennsylvania Total
<S> <C> <C> <C> <C> <C> <C>
Rental Revenue:
Class A $187,426 $212,512 $141,400 $182,657 $59,442 $783,437
R&D 5,912 19,846 0 1,851 0 27,609
Industrial 1,921 1,348 0 1,736 714 5,719
Hotels 38,703 0 0 0 0 38,703
Garage 3,474 0 0 0 0 3,474
Total 237,436 233,706 141,400 186,244 60,156 858,942
% of Grand Totals 27.64% 27.21% 16.46% 21.68% 7.01% 100.00%
Rental Expenses:
Class A 66,688 56,078 47,537 62,940 18,255 251,498
R&D 2,315 3,498 0 334 0 6,147
Industrial 553 452 0 224 117 1,346
Hotels 4,694 0 0 0 0 4,694
Garage 1,016 0 0 0 0 1,016
Total 75,266 60,028 47,537 63,498 18,372 264,701
% of Grand Totals 28.43% 22.68% 17.96% 23.99% 6.94% 100.00%
Net Operating Income $162,170 $173,678 $93,863 $122,746 $41,784 $594,241
% of Grand Totals 27.29% 29.23% 15.79% 20.66% 7.03% 100.00%
</TABLE>
For the year ended December 31, 1999:
<TABLE>
<CAPTION>
New Jersey
Greater Greater Midtown Greater San and
Boston Washington, DC Manhattan Francisco Pennsylvania Total
<S> <C> <C> <C> <C> <C> <C>
Rental Revenue:
Class A $159,661 $202,323 $136,814 $158,127 $41,852 $698,777
R&D 5,892 18,727 0 1,672 0 26,291
Industrial 1,671 1,433 0 1,220 675 4,999
Hotels 32,902 0 0 0 0 32,902
Garage 2,448 0 0 0 0 2,448
Total 202,574 222,483 136,814 161,019 42,527 765,417
% of Grand Totals 26.47% 29.06% 17.87% 21.04% 5.56% 100.00%
Rental Expenses:
Class A 62,676 55,346 46,938 59,076 12,695 236,731
R&D 1,744 3,568 0 381 0 5,693
Industrial 506 450 0 215 83 1,254
Hotels 4,773 0 0 0 0 4,773
Garage 817 0 0 0 0 817
Total 70,516 59,364 46,938 59,672 12,778 249,268
% of Grand Totals 28.28% 23.82% 18.83% 23.94% 5.13% 100.00%
Net Operating Income $132,058 $163,119 $89,876 $101,347 $29,749 $516,149
% of Grand Totals 25.59% 31.60% 17.41% 19.64% 5.76% 100.00%
</TABLE>
73
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
For the year ended December 31, 1998:
<TABLE>
<CAPTION>
New Jersey
Greater Greater Midtown Greater San and
Boston Washington, DC Manhattan Francisco Pennsylvania Total
<S> <C> <C> <C> <C> <C> <C>
Rental Revenue:
Class A $94,284 $169,882 $129,644 $18,914 $17,407 $430,131
R&D 5,955 17,121 0 1,502 0 24,578
Industrial 1,611 1,431 0 1,349 789 5,180
Hotels 25,944 0 0 0 0 25,944
Garage 1,744 0 0 0 0 1,744
Total 129,538 188,434 129,644 21,765 18,196 487,577
% of Grand Totals 26.57% 38.65% 26.59% 4.46% 3.73% 100.00%
Rental Expenses:
Class A 36,591 45,156 44,787 7,099 5,663 139,296
R&D 1,808 3,644 0 395 0 5,847
Industrial 525 316 0 305 107 1,253
Hotels 3,562 0 0 0 0 3,562
Garage 532 0 0 0 0 532
Total 43,018 49,116 44,787 7,799 5,770 150,490
% of Grand Totals 28.59% 32.64% 29.76% 5.18% 3.83% 100.00%
Net Operating Income $86,520 $139,318 $84,857 $13,966 $12,426 $337,087
% of Grand Totals 25.67% 41.33% 25.17% 4.14% 3.69% 100.00%
</TABLE>
The following is a reconciliation of net operating income to income before
minority interests and joint venture income:
<TABLE>
<CAPTION>
2000 1999 1998
-------- -------- --------
<S> <C> <C> <C>
Net operating income $594,241 $516,149 $337,087
Add:
Development and management services 11,837 14,708 12,411
Interest and other 8,574 6,439 13,859
Less:
General and administrative 35,659 29,455 22,504
Interest expense 217,064 205,410 124,860
Depreciation and amortization 133,150 120,059 75,418
-------- -------- --------
Income before minority interests and joint
venture income $228,779 $182,372 $140,575
======== ======== ========
</TABLE>
13. Gain on Sale of Real Estate and Extraordinary Items
The Company realized a loss of $0.2 million (net of minority interest
share of $0.1 million) for the year ended December 31, 2000 related to the sales
of various properties. The Company realized a gain of $6.5 million (net of
minority interest share of $2.2 million) for the year ended December 31, 1999
from the sale of a property.
The Company incurred an extraordinary loss of $0.3 million (net of
minority interest share of $0.1 million) for the year ended December 31, 2000
from the write-off of unamortized deferred financing costs related to the early
extinguishment of a mortgage note payable. The Company incurred an extraordinary
loss of $5.5 million (net of minority interest share of $2.2
74
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
million) for the year ended December 31, 1998 primarily related to fees incurred
in connection with the repayment of certain mortgage notes payable in connection
with a property acquisition.
14. Earnings Per Share
Earnings per share is computed as follows:
<TABLE>
<CAPTION>
For the year ended December 31, 2000
Income Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ------
<S> <C> <C> <C>
Basic Earnings Per Share:
Income available to common shareholders $146,426 71,424 $2.05
Effect of Dilutive Securities:
Stock Options and other -- 1,317 (.04)
----------------------------------------------------------
Diluted Earnings Per Share:
Income available to common shareholders $146,426 72,741 $2.01
==========================================================
<CAPTION>
For the year ended December 31, 1999
Income Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ------
<S> <C> <C> <C>
Basic Earnings Per Share:
Income available to common shareholders $113,947 66,235 $1.72
Effect of Dilutive Securities:
Stock Options -- 541 (.01)
----------------------------------------------------------
Diluted Earnings Per Share:
Income available to common shareholders $113,947 66,776 $1.71
==========================================================
<CAPTION>
For the year ended December 31, 1998
Income Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ------
<S> <C> <C> <C>
Basic Earnings Per Share:
Income available to common shareholders $93,112 60,776 $1.53
Effect of Dilutive Securities:
Stock Options -- 532 (.01)
----------------------------------------------------------
Diluted Earnings Per Share:
Income available to common shareholders $93,112 61,308 $1.52
==========================================================
</TABLE>
75
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
15. Employee Benefit Plan
Effective January 1, 1985, the predecessor to the Company adopted a
401(k) Savings Plan (the "Plan") for its employees. Under the Plan, as amended,
employees as defined, are eligible to participate in the Plan after they have
completed three months of service. In addition, participants may elect to make
an after-tax contribution of up to 10% of their wages. Upon formation, the
Company adopted the Plan and the terms of the Plan.
In November 1999, the Company amended the Plan by increasing the Company's
matching contribution to 200% of the first 3% from 200% of the first 2% of
participant's pay contributed (utilizing pay that is not in excess of $100) and
by eliminating the vesting requirement. The effective date of these changes was
January 1, 2000.
The Plan provides that matching employer contributions are to be
determined at the discretion of the Company. The Company's matching contribution
for the years ended December 31, 2000, 1999 and 1998 was $1,702, $889 and $583,
respectively.
16. Stock Option and Incentive Plan
The Company has established a stock option and incentive plan for the
purpose of attracting and retaining qualified executives and rewarding them for
superior performance in achieving the Company's business goals and enhancing
stockholder value.
Under the plan, the number of shares available for option grant is
14,699,162 shares plus as of the first day of each calendar quarter after
January 1, 2000, 9.5% of any net increase since the first day of the preceding
calendar quarter in the total number of shares of Common Stock outstanding, on a
fully converted basis (excluding Preferred Stock). The strike price on the
shares granted is equal to the market price of the Company's Common Stock on the
grant date. Shares granted under the plan vest over three or five years. The
term of each option is ten years from the date of grant.
During the year ended December 31, 2000, the Company issued 34,822 shares
of restricted stock valued at approximately $1.0 million ($30.4375 per share).
The restricted stock vests over a five-year period, with one-fifth of the shares
vesting each year and has been recognized net of amortization as unearned
compensation on the consolidated balance sheets. There was no restricted stock
issued prior to the year 2000.
A summary of the status of the Company's stock options as of December 31,
2000, 1999 and 1998 and changes during the years ended December 31, 2000, 1999
and 1998 are presented below:
76
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
Weighted Average
Shares Exercise Price
------ --------------
Outstanding at January 1, 1998 2,284,100 $25.00
Granted 3,621,663 $34.13
Exercised (1,034) $25.00
Canceled (66,779) $31.61
--------- ------
Outstanding at December 31, 1998 5,837,950 $30.58
Granted 1,777,408 $33.20
Exercised (24,023) $25.87
Canceled (35,877) $33.38
--------- ------
Outstanding at December 31, 1999 7,555,458 $31.20
Granted 1,072,750 $30.60
Exercised (511,281) $30.59
Canceled (15,245) $33.20
--------- ------
Outstanding at December 31, 2000 8,101,682 $31.15
========= ======
The per share weighted average fair value of options granted was $3.79,
$3.98 and $5.49 for the years ended December 31, 2000, 1999 and 1998,
respectively. The per share fair value of each option granted is estimated on
the date of grant using the Black-Scholes option-pricing model with the
following weighted-average assumptions for grants in 2000, 1999 and 1998.
<TABLE>
<CAPTION>
2000 1999 1998
-------------- ------------- --------------
<S> <C> <C> <C>
Dividend yield 6.90% 6.08% 4.80%
Expected life of option 6 Years 6 Years 6 Years
Risk-free interest rate 6.51% 5.07% 5.58%
Expected stock price volatility 20% 20% 20%
</TABLE>
The following table summarizes information about stock options outstanding
at December 31, 2000:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------- -------------------
Number Weighted Average Number Weighted
Range of Outstanding at Remaining Weighted Average Exercisable at Average
Exercise Prices 12/31/00 Contractual Life Exercise Price 12/31/00 Exercise Price
- --------------- -------- ---------------- -------------- -------- --------------
<S> <C> <C> <C> <C> <C>
$25.00 - $36.81 8,101,682 7.47 $31.15 3,397,714 $32.11
</TABLE>
77
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
The Company applies Accounting Practice Bulletin 25 and related
interpretations in accounting for its stock option plan. Accordingly, no
compensation cost has been recognized.
The compensation cost under SFAS 123 for the stock performance-based plan
would have been $11,993, $10,443 and $6,847 for the years ended December 31,
2000, 1999 and 1998, respectively. Had compensation cost for the Company's
grants for stock-based compensation plans been determined consistent with SFAS
123, the Company's net income, and net income per common share for 2000, 1999
and 1998 would approximate the pro forma amounts below:
2000 1999 1998
-------- -------- -------
Net income $134,433 $103,504 $86,265
Net income per common share - basic $ 1.88 $ 1.56 $ 1.42
Net income per common share - diluted $ 1.85 $ 1.55 $ 1.41
The effects of applying SFAS 123 in this pro forma disclosure are not
indicative of future amounts. SFAS 123 does not apply to future anticipated
awards.
17. Employee Stock Purchase Plan
The Company adopted the 1999 Non-Qualified Employee Stock Purchase Plan
(the "Stock Purchase Plan") to encourage the ownership of Common Stock by
eligible employees. The Stock Purchase Plan became effective on January 1, 1999
with an aggregate maximum of 250,000 shares of Common Stock available for
issuance. The Stock Purchase Plan provides for eligible employees to purchase at
the end of the biannual purchase periods shares of Common Stock for 85% of the
average closing price during the valuation period, as defined. The Company
issued 11,105 and 5,115 shares under the Stock Purchase Plan as of December 31,
2000 and 1999, respectively. No shares were issued in 1998.
18. Selected Interim Financial Information (unaudited)
<TABLE>
<CAPTION>
2000 Quarter Ended
------------------------------------------------------------------------
March 31, June 30, September 30, December 31,
------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Total revenue $210,254 $217,259 $223,313 $228,527
Income before minority interest in
Operating Partnership 50,172 56,419 58,404 64,610
Income before gain on sale 32,620 37,030 38,777 45,139
Net income available to common
shareholders 30,977 35,684 36,530 43,235
Income before gain on sale per share
- - basic .46 .52 .54 .54
Income before gain on sale per share
- - diluted .45 .51 .53 .52
</TABLE>
78
<PAGE>
BOSTON PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
1999 Quarter Ended
------------------------------------------------------------------------
March 31, June 30, September 30, December 31,
------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Total revenue $187,640 $191,640 $202,137 $205,147
Income before minority interest in
Operating Partnership 41,485 45,410 45,270 46,061
Income before gain on sale 25,773 28,905 29,022 29,609
Net income available to common
shareholders 24,934 27,223 27,418 34,372
Income before gain on sale per share
- - basic .39 .42 .40 .41
Income before gain on sale per share
- - diluted .39 .41 .40 .41
</TABLE>
19. Newly Issued Accounting Standard
As of January 1, 2001, the Company adopted SFAS No. 133, "Accounting for
Derivative Instruments and Hedging Activities" as amended by SFAS No. 137 and
SFAS No. 138 ("SFAS No. 133"). SFAS No. 133 establishes accounting and reporting
standards for derivative instruments, including certain derivative instruments
embedded in other contracts, and hedging activities. It requires the recognition
of all derivative instruments as assets or liabilities in the Company's
consolidated balance sheets at fair value. Changes in the fair value of
derivative instruments that are not designated as hedges or that do not meet the
hedge accounting criteria in SFAS No. 133 are required to be reported in
earnings. For derivatives designated as hedging instruments in qualifying cash
flow hedges, the effective portion of changes in fair value of the derivatives
are recognized in accumulated other comprehensive loss until the forecasted
transactions occur and the ineffective portions are recognized in earnings.
The nature of the Company's derivatives includes investments in warrants
to purchase shares of common stock of other companies and interest rate
agreements to protect against changes in interest rates for variable rate debt.
Based on the terms of the warrant agreements, the warrants meet the definition
of a derivative and accordingly must be marked to fair value through earnings.
The Company has been recording the warrants at fair value through accumulated
other comprehensive loss as available-for-sale securities under SFAS No. 115.
The Company estimates that, upon adoption of SFAS No. 133, it will reclass
approximately $6.8 million, the fair value of the warrants, from accumulated
other comprehensive loss to a cumulative effect of a change in accounting
principle. The Company's interest rate protection agreements will be designated
as hedging instruments in qualifying cash flow hedges. As such, the Company
estimates that upon adoption of SFAS No. 133, it will record an asset of
approximately $0.2 million and record a liability of approximately $11.4 million
for the fair values of these agreements. The offset for these entries will be to
a cumulative effect of a change in accounting principle and accumulated other
comprehensive loss, respectively. Finally, the Company estimates it will
write-off deferred charges of approximately $1.6 million as a cumulative effect
of a change in accounting principle.
79
<PAGE>
Boston Properties, Inc.
Schedule 3 - Real Estate and Accumulated Depreciation
December 31, 2000
(dollars in thousands)
<TABLE>
<CAPTION>
Property Name Type Location Encumbrances Land
- ------------- ---- -------- ------------ ----
<S> <C> <C> <C> <C>
Embarcadero Center Office San Francisco, CA $711,325 $211,297
Prudential Center Office Boston, MA 367,937 77,850
Carnegie Center Office Princeton, NJ 153,611 100,434
280 Park Avenue Office New York, NY 270,000 125,288
599 Lexington Avenue Office New York, NY 225,000 81,040
875 Third Avenue Office New York, NY 150,959 74,880
Riverfront Plaza Office Richmond, VA 115,647 18,000
100 East Pratt Street Office Baltimore, MD 91,851 27,562
Gateway Center Office San Francisco, CA 89,888 21,516
Reservoir Place Office Waltham, MA 73,858 18,207
Democracy Center Office Bethesda, MD 107,717 12,550
Two Independence Square Office Washington, DC 116,377 14,053
One and Two Reston Overlook Office Reston, VA 68,190 16,456
NIMA Building Office Reston, VA 21,495 10,567
Lockheed Martin Building Office Reston, VA 26,289 10,210
Candler Building Office Baltimore, MD - 12,500
One Independence Square Office Washington, DC 74,114 9,356
2300 N Street Office Washington, DC 66,000 16,509
Reston Corporate Center Office Reston, VA 24,809 9,135
Capital Gallery Office Washington, DC 57,161 4,725
191 Spring Street Office Lexington, MA 22,797 2,850
1301 New York Avenue Office Washington, DC 32,710 9,250
200 West Street Office Waltham, MA - 16,148
Sumner Square Office Washington, DC 28,298 624
University Place Office Cambridge, MA 25,253 -
500 E Street Office Washington, DC - 109
One Cambridge Center Office Cambridge, MA - 134
Orbital Sciences, Phase One Office Dulles, VA 25,761 3,150
Eight Cambridge Center Office Cambridge, MA 28,412 921
Ten Cambridge Center Office Cambridge, MA 35,741 1,299
Newport Office Park Office Quincy, MA 5,923 3,500
Bedford Business Park Office Bedford, MA 21,717 534
<CAPTION>
Costs
Capitalized
Subsequent Land
to Land and Building and Held for
Property Name Building Acquisition Improvements Improvements Development
- ------------- -------- ----------- ------------ ------------ -----------
<S> <C> <C> <C> <C> <C>
Embarcadero Center $996,442 $37,979 $212,149 $1,033,569 $ -
Prudential Center 443,180 234,421 77,850 479,060 28,095
Carnegie Center 340,259 14,814 107,415 338,486 -
280 Park Avenue 201,115 31,912 125,288 233,027 -
599 Lexington Avenue 100,507 71,381 81,040 171,888 -
875 Third Avenue 139,151 7,756 74,880 146,907 -
Riverfront Plaza 156,733 827 18,274 157,286 -
100 East Pratt Street 109,662 2,515 27,562 112,177 -
Gateway Center 86,395 14,517 22,290 87,537 193
Reservoir Place 88,018 5,130 18,207 93,148 -
Democracy Center 50,015 24,735 13,689 73,611 -
Two Independence Square 59,883 9,171 15,039 68,068 -
One and Two Reston Overlook 66,192 - 16,456 66,192 -
NIMA Building 67,431 2 10,567 67,433 -
Lockheed Martin Building 58,884 - 10,210 58,884 -
Candler Building 48,734 1,166 12,555 49,845 -
One Independence Square 33,701 17,504 9,634 50,927 -
2300 N Street 22,415 13,284 16,509 35,699 -
Reston Corporate Center 41,398 748 9,135 42,146 -
Capital Gallery 29,560 14,507 4,730 44,062 -
191 Spring Street 27,166 18,775 2,850 45,941 -
1301 New York Avenue 18,750 16,961 9,250 35,711 -
200 West Street 24,983 5 16,148 24,988 -
Sumner Square 28,745 10,349 958 38,760 -
University Place 37,091 973 27 38,037 -
500 E Street 22,420 11,448 1,569 32,408 -
One Cambridge Center 25,110 7,200 134 32,310 -
Orbital Sciences, Phase One 26,229 18 3,150 26,247 -
Eight Cambridge Center 25,042 262 1,101 25,124 -
Ten Cambridge Center 12,943 7,593 1,868 19,967 -
Newport Office Park 18,208 22 3,500 18,230 -
Bedford Business Park 3,403 16,135 534 19,538 -
<CAPTION>
Development
and Year(s)
Construction Accumulated Built Depreciable
Property Name in Progress Total Depreciation Renovated Lives (Years)
- ------------- ----------- ----- ------------ --------- -------------
<S> <C> <C> <C> <C> <C>
Embarcadero Center $ - $1,245,718 $57,032 1924/1989 (1)
Prudential Center 170,446 755,451 29,552 1965/1993 (1)
Carnegie Center 9,606 455,507 17,414 1983-1999 (1)
280 Park Avenue - 358,315 20,698 1968/95-96 (1)
599 Lexington Avenue - 252,928 79,874 1986 (1)
875 Third Avenue - 221,787 10,833 1982 (1)
Riverfront Plaza - 175,560 11,372 1990 (1)
100 East Pratt Street - 139,739 9,454 1975/1991 (1)
Gateway Center 12,408 122,428 2,938 1984/1986 (1)
Reservoir Place - 111,355 5,184 1955/1987 (1)
Democracy Center - 87,300 28,590 1985-88/94-96 (1)
Two Independence Square - 83,107 16,791 1992 (1)
One and Two Reston Overlook - 82,648 2,455 1999 (1)
NIMA Building - 78,000 4,917 1987/1988 (1)
Lockheed Martin Building - 69,094 4,293 1987/1988 (1)
Candler Building - 62,400 2,832 1911/1990 (1)
One Independence Square - 60,561 16,958 1991 (1)
2300 N Street - 52,208 13,094 1986 (1)
Reston Corporate Center - 51,281 3,105 1984 (1)
Capital Gallery - 48,792 21,395 1981 (1)
191 Spring Street - 48,791 15,093 1971/1995 (1)
1301 New York Avenue - 44,961 1,938 1983/1998 (1)
200 West Street - 41,136 1,270 1999 (1)
Sumner Square - 39,718 1,452 1985 (1)
University Place - 38,064 2,327 1985 (1)
500 E Street - 33,977 15,328 1987 (1)
One Cambridge Center - 32,444 11,909 1987 (1)
Orbital Sciences, Phase One - 29,397 526 2000 (1)
Eight Cambridge Center - 26,225 986 1999 (1)
Ten Cambridge Center - 21,835 7,479 1990 (1)
Newport Office Park - 21,730 1,594 1988 (1)
Bedford Business Park - 20,072 8,606 1980 (1)
</TABLE>
<PAGE>
Boston Properties, Inc.
Schedule 3 - Real Estate and Accumulated Depreciation
December 31, 2000
(dollars in thousands)
<TABLE>
<CAPTION>
Property Name Type Location Encumbrances Land
- ------------- ---- -------- ------------ ----
<S> <C> <C> <C> <C>
201 Spring Street Office Lexington, MA - 2,849
10 and 20 Burlington Mall
Road Office Burlington, MA 16,613 930
Montvale Center Office Gaithersburg, MD 7,564 1,574
Fullerton Square Office Springfield, VA - 3,045
The Arboretum Office Reston, VA - 2,850
Three Cambridge Center Office Cambridge, MA - 174
Lexington Office Park Office Lexington, MA - 998
181 Spring Street Office Lexington, MA - 1,066
Sugarland Business Park Office Herndon, VA - 1,569
Decoverly Three Office Rockville, MD - 2,650
Decoverly Two Office Rockville, MD - 1,994
7700 Boston Boulevard,
Building Twelve Office Springfield, VA - 1,105
7501 Boston Boulevard,
Building Seven Office Springfield, VA - 665
91 Hartwell Avenue Office Lexington, MA 11,322 784
92-100 Hayden Avenue Office Lexington, MA 9,065 594
195 West Street Office Waltham, MA - 1,611
Waltham Office Center Office Waltham, MA - 422
Eleven Cambridge Center Office Cambridge, MA - 121
7435 Boston Boulevard,
Building One Office Springfield, VA - 392
170 Tracer Lane Office Waltham, MA - 398
7450 Boston Boulevard,
Building Three Office Springfield, VA - 1,165
8000 Grainger Court,
Building Five Office Springfield, VA - 366
Fourteen Cambridge Center Office Cambridge, MA - 110
32 Hartwell Avenue Office Lexington, MA - 168
7600 Boston Boulevard,
Building Nine Office Springfield, VA - 127
7601 Boston Boulevard,
Building Eight Office Springfield, VA - 200
7500 Boston Boulevard,
Building Six Office Springfield, VA - 138
33 Hayden Avenue Office Lexington, MA - 266
8000 Corporate Court,
Building Eleven Office Springfield, VA - 136
7375 Boston Boulevard,
Building Ten Office Springfield, VA - 23
7451 Boston Boulevard,
Building Two Office Springfield, VA - 249
204 Second Avenue Office Waltham, MA - 37
7374 Boston Boulevard,
Building Four Office Springfield, VA - 241
<CAPTION>
Costs
Capitalized
Subsequent Land
to Land and Building and Held for
Property Name Building Acquisition Improvements Improvements Development
- ------------- -------- ----------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
201 Spring Street 15,303 63 2,849 15,366 -
10 and 20 Burlington Mall
Road 6,928 9,320 938 16,240 -
Montvale Center 9,786 4,361 2,399 13,322 -
Fullerton Square 11,522 622 3,045 12,144 -
The Arboretum 9,025 2,380 2,850 11,405 -
Three Cambridge Center 12,200 1,257 174 13,457 -
Lexington Office Park 1,426 11,088 1,073 12,439 -
181 Spring Street 9,520 1,924 1,066 11,444 -
Sugarland Business Park 5,955 4,108 1,569 10,063 -
Decoverly Three 8,465 40 2,650 8,505 -
Decoverly Two 8,814 94 1,994 8,908 -
7700 Boston Boulevard,
Building Twelve 9,077 259 1,105 9,336 -
7501 Boston Boulevard,
Building Seven 9,273 9 665 9,282 -
91 Hartwell Avenue 6,464 2,420 784 8,884 -
92-100 Hayden Avenue 6,748 2,229 594 8,977 -
195 West Street 6,652 622 1,611 7,274 -
Waltham Office Center 2,719 5,290 425 8,006 -
Eleven Cambridge Center 5,535 2,316 121 7,851 -
7435 Boston Boulevard,
Building One 3,822 2,277 486 6,005 -
170 Tracer Lane 4,601 1,396 418 5,977 -
7450 Boston Boulevard,
Building Three 4,681 248 1,327 4,767 -
8000 Grainger Court,
Building Five 4,282 995 453 5,190 -
Fourteen Cambridge Center 4,483 569 110 5,052 -
32 Hartwell Avenue 1,943 2,741 168 4,684 -
7600 Boston Boulevard,
Building Nine 2,839 1,743 189 4,520 -
7601 Boston Boulevard,
Building Eight 878 3,506 378 4,206 -
7500 Boston Boulevard,
Building Six 3,749 323 273 3,937 -
33 Hayden Avenue 3,234 181 266 3,415 -
8000 Corporate Court,
Building Eleven 3,071 153 271 3,089 -
7375 Boston Boulevard,
Building Ten 2,685 630 47 3,291 -
7451 Boston Boulevard,
Building Two 1,542 1,510 535 2,766 -
204 Second Avenue 2,402 822 37 3,224 -
7374 Boston Boulevard,
Building Four 1,605 439 303 1,982 -
<CAPTION>
Development
and Year(s)
Construction Accumulated Built Depreciable
Property Name in Progress Total Depreciation Renovated Lives (Years)
- ------------- ----------- ----- ------------ --------- -------------
<S> <C> <C> <C> <C> <C>
201 Spring Street - 18,215 1,620 1997 (1)
10 and 20 Burlington Mall
Road - 17,178 6,829 1984-1989/95-96 (1)
Montvale Center - 15,721 5,462 1987 (1)
Fullerton Square - 15,189 866 1987 (1)
The Arboretum - 14,255 709 1999 (1)
Three Cambridge Center - 13,631 4,522 1987 (1)
Lexington Office Park - 13,512 5,661 1982 (1)
181 Spring Street - 12,510 264 1999 (1)
Sugarland Business Park - 11,632 1,517 1986/1997 (1)
Decoverly Three - 11,155 548 1989 (1)
Decoverly Two - 10,902 656 1987 (1)
7700 Boston Boulevard,
Building Twelve - 10,441 902 1997 (1)
7501 Boston Boulevard,
Building Seven - 9,947 772 1997 (1)
91 Hartwell Avenue - 9,668 4,040 1985 (1)
92-100 Hayden Avenue - 9,571 3,521 1985 (1)
195 West Street - 8,885 2,142 1990 (1)
Waltham Office Center - 8,431 3,831 1968-1970/87-88 (1)
Eleven Cambridge Center - 7,972 2,974 1984 (1)
7435 Boston Boulevard,
Building One - 6,491 2,853 1982 (1)
170 Tracer Lane - 6,395 3,542 1980 (1)
7450 Boston Boulevard,
Building Three - 6,094 333 1987 (1)
8000 Grainger Court,
Building Five - 5,643 2,148 1984 (1)
Fourteen Cambridge Center - 5,162 2,067 1983 (1)
32 Hartwell Avenue - 4,852 3,497 1968-1979/1987 (1)
7600 Boston Boulevard,
Building Nine - 4,709 1,957 1987 (1)
7601 Boston Boulevard,
Building Eight - 4,584 1,711 1986 (1)
7500 Boston Boulevard,
Building Six - 4,210 1,597 1985 (1)
33 Hayden Avenue - 3,681 1,709 1979 (1)
8000 Corporate Court,
Building Eleven - 3,360 983 1989 (1)
7375 Boston Boulevard,
Building Ten - 3,338 1,207 1988 (1)
7451 Boston Boulevard,
Building Two - 3,301 2,028 1982 (1)
204 Second Avenue - 3,261 1,645 1981/1993 (1)
7374 Boston Boulevard,
Building Four - 2,285 896 1984 (1)
</TABLE>
<PAGE>
Boston Properties, Inc.
Schedule 3 - Real Estate and Accumulated Depreciation
December 31, 2000
(dollars in thousands)
<TABLE>
<CAPTION>
Property Name Type Location Encumbrances Land
- ------------- ---- -------- ------------ ----
<S> <C> <C> <C> <C>
164 Lexington Road Office Billerica, MA - 592
Hilltop Business Center Office San Francisco, CA 5,738 53
17 Hartwell Avenue Office Lexington, MA - 26
6201 Columbia Park Road,
Building Two Industrial Landover, MD - 505
38 Cabot Boulevard Industrial Langhorne, PA - 329
40-46 Harvard Street Industrial Westwood, MA - 351
2000 South Club Drive,
Building Three Industrial Landover, MD - 465
25-33 Dartmouth Street Industrial Westwood, MA - 273
2391 West Winton Avenue Industrial Hayward, CA - 182
430 Rozzi Place Industrial San Francisco, CA - 9
560 Forbes Boulevard Industrial San Francisco, CA - 9
Cambridge Center Marriott Hotel Cambridge, MA - 478
Long Wharf Marriott Hotel Boston, MA - 1,752
Residence Inn by Marriott Hotel Cambridge, MA - 2,307
Cambridge Center North
Garage Garage Cambridge, MA - 1,163
Five Times Square Development New York, NY 184,157 -
Times Square Tower Development New York, NY - -
New Dominion Technology
Park, One Development Herndon, VA 98,142 -
Plaza at Almaden Development San Jose, CA - -
2600 Tower Oaks Boulevard Development Rockville, MD 18,083 -
Waltham/Weston Corporate
Center Development Waltham, MA - -
Quorum Office Park Development Chelmsford, MA 11,111 -
Orbital Sciences, Phase Two Development Dulles, VA 8,032 -
One Preserve Parkway Development Rockville, MD - -
40 Shattuck Road Development Andover, MA 6,224 -
Broad Run Business Park,
Building E Development Loudon County, VA - -
Decoverly Seven Development Rockville, MD - -
ITT Educational Services
Building Development Springfield, VA - -
Tower Oaks Master Plan Land Rockville, MD - -
Washingtonian North Land Gaithersburg, MD - -
Crane Meadow Land Marlborough, MA - -
Broad Run Business Park Land Loudon County, VA - -
12050 Sunset Hills Road Land Reston, VA - -
<CAPTION>
Costs
Capitalized
Subsequent Land
to Land and Building and Held for
Property Name Building Acquisition Improvements Improvements Development
- ------------- -------- ----------- ------------ ------------ -----------
<S> <C> <C> <C> <C> <C>
164 Lexington Road 1,370 132 592 1,502 -
Hilltop Business Center 492 1,504 109 1,940 -
17 Hartwell Avenue 150 587 26 737 -
6201 Columbia Park Road,
Building Two 2,746 1,227 960 3,518 -
38 Cabot Boulevard 1,238 2,608 329 3,846 -
40-46 Harvard Street 1,782 1,327 351 3,109 -
2000 South Club Drive,
Building Three 2,125 740 859 2,471 -
25-33 Dartmouth Street 1,596 503 273 2,099 -
2391 West Winton Avenue 1,217 615 182 1,832 -
430 Rozzi Place 217 33 9 250 -
560 Forbes Boulevard 120 - 9 120 -
Cambridge Center Marriott 37,918 7,806 478 45,724 -
Long Wharf Marriott 31,904 9,302 1,752 41,206 -
Residence Inn by Marriott 22,732 75 2,307 22,807 -
Cambridge Center North
Garage 11,633 147 1,163 11,780 -
Five Times Square - 273,773 - - -
Times Square Tower - 175,724 - - -
New Dominion Technology
Park, One - 41,870 - - -
Plaza at Almaden - 26,956 - - -
2600 Tower Oaks Boulevard - 26,315 - - -
Waltham/Weston Corporate
Center - 20,533 - - -
Quorum Office Park - 16,165 - - -
Orbital Sciences, Phase Two - 13,642 - - -
One Preserve Parkway - 9,057 - - -
40 Shattuck Road - 8,381 - - -
Broad Run Business Park,
Building E - 6,531 - - -
Decoverly Seven - 5,290 - - -
ITT Educational Services
Building - 781 - - -
Tower Oaks Master Plan - 19,195 - - 19,195
Washingtonian North - 16,175 - - 16,175
Crane Meadow - 7,760 - - 7,760
Broad Run Business Park - 5,575 - - 5,575
12050 Sunset Hills Road - 5,529 - - 5,529
<CAPTION>
Development
and Year(s)
Construction Accumulated Built Depreciable
Property Name in Progress Total Depreciation Renovated Lives (Years)
- ------------- ----------- ----- ------------ --------- -------------
<S> <C> <C> <C> <C> <C>
164 Lexington Road - 2,094 199 1982 (1)
Hilltop Business Center - 2,049 914 early 1970's (1)
17 Hartwell Avenue - 763 579 1968 (1)
6201 Columbia Park Road,
Building Two - 4,478 1,650 1986 (1)
38 Cabot Boulevard - 4,175 2,581 1972/1984 (1)
40-46 Harvard Street - 3,460 3,100 1967/1996 (1)
2000 South Club Drive,
Building Three - 3,330 987 1988 (1)
25-33 Dartmouth Street - 2,372 1,564 1966/1996 (1)
2391 West Winton Avenue - 2,014 1,101 1974 (1)
430 Rozzi Place - 259 52 early 1970's (1)
560 Forbes Boulevard - 129 74 early 1970's (1)
Cambridge Center Marriott - 46,202 15,196 1986 (1)
Long Wharf Marriott - 42,958 18,909 1982 (1)
Residence Inn by Marriott - 25,114 735 1999 (1)
Cambridge Center North
Garage - 12,943 3,325 1990 (1)
Five Times Square 273,773 273,773 - Various N/A
Times Square Tower 175,724 175,724 - Various N/A
New Dominion Technology
Park, One 41,870 41,870 - Various N/A
Plaza at Almaden 26,956 26,956 - Various N/A
2600 Tower Oaks Boulevard 26,315 26,315 - Various N/A
Waltham/Weston Corporate
Center 20,533 20,533 - Various N/A
Quorum Office Park 16,165 16,165 - Various N/A
Orbital Sciences, Phase Two 13,642 13,642 - Various N/A
One Preserve Parkway 9,057 9,057 - Various N/A
40 Shattuck Road 8,381 8,381 - Various N/A
Broad Run Business Park,
Building E 6,531 6,531 - Various N/A
Decoverly Seven 5,290 5,290 - Various N/A
ITT Educational Services
Building 781 781 - Various N/A
Tower Oaks Master Plan - 19,195 - Various N/A
Washingtonian North - 16,175 - Various N/A
Crane Meadow - 7,760 - Various N/A
Broad Run Business Park - 5,575 - Various N/A
12050 Sunset Hills Road - 5,529 - Various N/A
</TABLE>
<PAGE>
Boston Properties, Inc.
Schedule 3 - Real Estate and Accumulated Depreciation
December 31, 2000
(dollars in thousands)
<TABLE>
<CAPTION>
Property Name Type Location Encumbrances Land
- ------------- ---- -------- ------------ ----
<S> <C> <C> <C> <C>
12280 Sunrise Valley Drive Land Reston, VA - -
New Dominion Technology
Park, Two Land Herndon, VA - -
599 Van Buren Street Land Herndon, VA - -
Decoverly Six Land Rockville, MD - -
Cambridge Master Plan Land Cambridge, MA - -
Decoverly Five Land Rockville, MD - -
Decoverly Four Land Rockville, MD - -
Seven Cambridge Center Land Cambridge, MA - -
30 Shattuck Road Land Andover, MA - -
Virginia Master Plan Land Springfield, VA - -
---------- --------
$3,414,891 $948,165
========== ========
<CAPTION>
Costs
Capitalized
Subsequent Land
to Land and Building and Held for
Property Name Building Acquisition Improvements Improvements Development
- ------------- -------- ----------- ------------ ------------ -----------
<S> <C> <C> <C> <C> <C>
12280 Sunrise Valley Drive - 3,902 - - 3,902
New Dominion Technology
Park, Two - 3,827 - - 3,827
599 Van Buren Street - 3,640 - - 3,640
Decoverly Six - 3,624 - - 3,624
Cambridge Master Plan - 2,969 - - 2,969
Decoverly Five - 1,806 - - 1,806
Decoverly Four - 1,785 - - 1,785
Seven Cambridge Center - 1,157 - - 1,157
30 Shattuck Road - 1,007 - - 1,007
Virginia Master Plan - 766 - - 766
---------- ---------- -------- ---------- --------
$3,718,234 $1,388,386 $965,140 $4,165,162 $107,005
========== ========== ======== ========== ========
<CAPTION>
Development
and Year(s)
Construction Accumulated Built Depreciable
Property Name in Progress Total Depreciation Renovated Lives (Years)
- ------------- ----------- ----- ------------ --------- -------------
<S> <C> <C> <C> <C> <C>
12280 Sunrise Valley Drive - 3,902 - Various N/A
New Dominion Technology
Park, Two - 3,827 - Various N/A
599 Van Buren Street - 3,640 - Various N/A
Decoverly Six - 3,624 - Various N/A
Cambridge Master Plan - 2,969 - Various N/A
Decoverly Five - 1,806 - Various N/A
Decoverly Four - 1,785 - Various N/A
Seven Cambridge Center - 1,157 - Various N/A
30 Shattuck Road - 1,007 - Various N/A
Virginia Master Plan - 766 - Various N/A
-------- ---------- --------
$817,478 $6,054,785 $553,264
======== ========== ========
</TABLE>
(1) Depreciation of the buildings and improvements are calculated over lives
ranging from the life of the lease to 40 years.
(2) The aggregate cost and accumulated depreciation for tax purposes was
approximately $4,900,000 and $820,000, respectively.
<PAGE>
Boston Properties, Inc.
Real Estate and Accumulated Depreciation
December 31, 2000
(dollars in thousands)
A summary of activity for real estate and accumulated depreciation is as
follows:
<TABLE>
<CAPTION>
2000 1999 1998
----------- ----------- -----------
<S> <C> <C> <C>
Real Estate:
Balance at the beginning of the year $ 5,570,887 $ 4,881,483 $ 1,754,780
Additions to and improvements of real estate 759,540 691,199 3,129,121
Assets sold and written-off (275,642) (1,795) (2,418)
----------- ----------- -----------
Balance at the end of the year $ 6,054,785 $ 5,570,887 $ 4,881,483
=========== =========== ===========
Accumulated Depreciation:
Balance at the beginning of the year $ 445,138 $ 336,165 $ 266,987
Depreciation expense 118,748 110,768 71,596
Assets sold and written-off (10,622) (1,795) (2,418)
----------- ----------- -----------
Balance at the end of the year $ 553,264 $ 445,138 $ 336,165
=========== =========== ===========
</TABLE>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.5
<SEQUENCE>2
<FILENAME>dex105.txt
<DESCRIPTION>CERT. OF DESIG. FOR SERIES Z PREFERED
<TEXT>
<PAGE>
Exhibit 10.5
BOSTON PROPERTIES LIMITED PARTNERSHIP
CERTIFICATE OF DESIGNATIONS
ESTABLISHING AND FIXING THE RIGHTS, LIMITATIONS AND
PREFERENCES OF A SERIES OF PREFERRED UNITS
DENOMINATED THE SERIES Z PREFERRED UNITS
Reference is made to the Second Amended and Restated Agreement of Limited
Partnership (the "Partnership Agreement") of Boston Properties Limited
Partnership, a Delaware limited partnership (the "Partnership"), of which this
Certificate of Designations (this "Certificate") shall become a part.
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the main part of the Partnership Agreement. Section references are
(unless otherwise specified) references to sections in this Certificate.
WHEREAS, Section 14.1.B(3) of the main part of the Partnership Agreement
permits the General Partner, without the consent of the Limited Partners, to
amend the Partnership Agreement for the purpose of setting forth and reflecting
in the Partnership Agreement the designations, rights, powers, duties, and
preferences of holders of any additional Partnership Interests issued pursuant
to Section 4.2.A of the main part of the Partnership Agreement; and
WHEREAS, the General Partner desires by this Certificate to so amend the
Partnership Agreement as of this __ day of December, 2000.
NOW, THEREFORE, the General Partner has set forth in this Certificate the
following description of the preferences and other rights, voting powers,
restrictions, limitations as to distributions, qualifications and terms and
conditions of redemption and conversion of a class and series of Partnership
Interest to be represented by Partnership Units which shall be referred to as
"Series Z Preferred Units":
1. Designation and Number. A series of Preferred Units, designated the
"Series Z Preferred Units," is hereby established.
2. Definitions. For purposes of this Certificate of Designations, the
following terms shall have the meanings indicated:
"Adjusted Fair Market Value" shall have the meaning set forth in paragraph
(b) of Section 5 hereof.
"Adjustment Event" shall have the meaning set forth in paragraph (d) of
Section 7 hereof.
"Adjustment Factor" shall mean a factor equal to one (1), unless one or
more Adjustment Events occur between the Signing Date and any of the Conversion
Date, a Redemption Date or
1
<PAGE>
an Option Strike Date, as applicable, in which case this factor shall be
recalculated pursuant to Section 7(d) hereof.
"Constituent Person" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
"Contribution Agreement" means that certain Contribution Agreement dated as
of February 11, 2000 by and among the Owner, as named therein, on the one hand,
and the Partnership, on the other hand (as may be amended, modified or
supplemented from time to time).
"Conversion Price" shall mean the Fair Market Value of a Common Unit as of
either the Conversion Date or the Option Strike Date, as applicable.
"Conversion Date" shall have the meaning set forth in Section 7(a) hereof.
"Current Market Price" of a REIT Share or of a publicly traded security of
any other issuer for any day shall mean the last reported sales price, regular
way, on such day, or, if no sale takes place on such day, the average of the
reported closing bid and asked prices on such day, regular way, in either case
as reported on the New York Stock Exchange ("NYSE") or, if such security is not
listed or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if not
listed or admitted for trading on any national securities exchange, on the
Nasdaq National Market or, if such security is not quoted on such Nasdaq
National Market, the average of the closing bid and asked prices on such day in
the over-the-counter market as reported by Nasdaq or, if bid and asked prices
for such security on such day shall not have been reported through Nasdaq, the
average of the bid and asked prices on such day as furnished by any NYSE member
firm regularly making a market in such security selected for such purpose by the
Chief Executive Officer of the Partnership or the General Partner. "Current
Market Price" of a Common Unit as of any day means the Current Market Price of a
REIT Share multiplied by the Conversion Factor, as such term is defined in the
main part of the Partnership Agreement.
"Distribution Payment Date" shall mean the dates upon which the General
Partner makes quarterly distributions in accordance with Section 5.1 of the main
part of the Partnership Agreement.
"Distribution Periods" shall have the meaning given such term in the main
part of the Partnership Agreement.
"Fair Market Value" shall mean the average of the daily Current Market
Prices per Common Unit during the ten (10) consecutive Trading Days ending not
later than (and including) the third business day immediately preceding the day
in question.
"Full Distribution Period" shall have the meaning set forth in paragraph
(a) of Section 3 hereof.
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<PAGE>
"Half Distribution Period" shall have the meaning set forth in paragraph
(a) of Section 3 hereof.
"Junior Units" shall mean the Common Units and any other class or series of
Partnership Units constituting junior units within the meaning set forth in
paragraph (c) of Section 9 hereof.
"Liquidation Event" shall have the meaning set forth in paragraph (a) of
Section 4 hereof.
"Liquidation Preference" shall have the meaning set forth in paragraph (a)
of Section 4 hereof.
"Non-Electing Unit" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
"Optional Conversion Notice" shall have the meaning set forth in paragraph
(a) of Section 6 hereof.
"Optional Conversion Right" shall have the meaning set forth in paragraph
(a) of Section 6 hereof.
"Option Strike Date" shall have the meaning set forth in paragraph (a) of
Section 6 hereof.
"Parity Units" shall have the meaning set forth in paragraph (b) of Section
9 hereof.
"Redemption Amount" shall have the meaning set forth in paragraph (a) of
Section 5 hereof.
"Redemption Date" shall have the meaning set forth in paragraph (a) of
Section 5 hereof.
"Redemption Notice" shall have the meaning set forth in paragraph (a) of
Section 5 hereof.
"Redemption Requirement" shall have the meaning set forth in paragraph (a)
of Section 5 hereof.
"Reference Record Date" shall have the meaning set forth in paragraph (a)
of Section 3 hereof.
"Registration Rights and Lock-Up Agreement" shall mean that certain
Registration Rights and Lock-Up Agreement, dated as of December __, 2000,
between the Company and the Holders named therein.
"Regular Common Unit Distribution" shall have the meaning set forth in
paragraph (a) of Section 3 hereof.
"Securities" shall have the meaning set forth in paragraph (d)(iii) of
Section 7 hereof.
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"Set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Partnership in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of a distribution by the General Partner, the allocation of funds to
be so paid on any series or class of Partnership Units; provided, however, that
if any funds for any class or series of Junior Units or Parity Units are placed
in a separate account of the Partnership or delivered to a disbursing, paying or
other similar agent, then "set apart for payment" with respect to the Series Z
Preferred Units shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
"Signing Date" shall mean February 11, 2000 (the date of signing of the
Contribution Agreement).
"Stated Distribution" shall have the meaning set forth in paragraph (a) of
Section 3 hereof.
"Trading Day" shall mean any day on which the securities in question are
traded on the New York Stock Exchange ("NYSE"), or if such securities are not
listed or admitted for trading on the NYSE, on the principal national securities
exchange on which such securities are listed or admitted, or if not listed or
admitted for trading on any national securities exchange, on the Nasdaq National
Market, or if such securities are not quoted on such Nasdaq National Market, in
the applicable securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in paragraph (e) of Section
7 hereof.
"Zero Distribution Period" shall have the meaning set forth in paragraph
(a) of Section 3 hereof.
3. Distributions.
(a) The holders of Series Z Preferred Units shall not be entitled to
receive any distributions until and including August 11, 2001 (18 months from
the Signing Date) (the "Zero Distribution Period"). After August 11, 2001 and
until and including February 11, 2002 (24 months from the Signing Date) (the
"Half Distribution Period"), in respect of each Distribution Payment Date,
when, as and if authorized and declared by the General Partner out of assets
legally available for that purpose, the holders of Series Z Preferred Units
shall be entitled to receive distributions in an amount per Series Z Preferred
Unit equivalent to one-half of the regular, quarterly cash distribution per
Common Unit (the "Regular Common Unit Distribution") paid to holders of record
of Common Units on the record date (the "Reference Record Date") established by
the General Partner with respect to such Distribution Payment Date. After
February 11, 2002 (24 months from the Signing Date), so long as Series Z
Preferred Units continue to be outstanding (the "Full Distribution Period"), in
respect of each Distribution Payment Date, when, as and if authorized and
declared by the General Partner out of assets legally available for that
purpose, the holders of Series Z Preferred Units shall be entitled to receive
Stated Distribution in an amount per Series Z Preferred Unit equivalent to the
Regular
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<PAGE>
Common Unit Distribution paid to holders of record of Common Units on the
Reference Record Date. If a Distribution Period includes portions of the Zero
Distribution Period and the Half Distribution Period or parts of the Half
Distribution Period and the Full Distribution Period, then the Stated
Distribution shall be pro rated as appropriate on the basis of the number of
days within such Distribution Period included in a Zero Distribution Period, a
Half Distribution Period or a Full Distribution Period, as applicable.
For purposes of determining the amount distributable to the holders of
Series Z Preferred Units on a per Series Z Preferred Units basis (the "Stated
Distribution"):
(i) if an Adjustment Event occurs after the Signing Date, then the
Stated Distribution for the applicable Distribution Period shall
be calculated by multiplying the applicable Regular Common Unit
Distribution by the Adjustment Factor, as recalculated to give
effect to such Adjustment Event; and
(ii) if a special cash distribution was paid to holders of Common
Units on the Reference Record Date or at any time prior to the
Reference Record Date and after the last record date for regular,
quarterly cash distributions, then the Stated Distribution shall
include, in addition to the Regular Distribution paid in respect
of the Reference Record Date, an amount equal to the applicable
proportionate share (depending on whether the payment is made
during a Zero Distribution Period, a Half Distribution Period or a
Full Distribution Period) of such special cash distribution paid
in respect of each Common Unit (for clarity, it is noted that the
effect of this sentence is to assure that in calculating the
Stated Distribution the holders of Series Z Preferred Units will
benefit from any cash distributions paid in respect of Common
Units even if such cash distributions might not be characterized
as "regular, quarterly cash distributions").
In the event that a Series Z Preferred Unit is outstanding for only a portion of
a Distribution Period, then the Stated Distribution with respect to such Series
Z Preferred Unit and such Distribution Period shall be determined as provided in
the preceding sentence but shall then be adjusted by multiplying such amount by
a fraction, the numerator of which equals the number of days such Series Z
Preferred Unit had been outstanding during such period and the denominator of
which shall equal the total number of days during such Distribution Period.
Such distributions shall, with respect to each Series Z Preferred Unit, be
payable in arrears on each Distribution Payment Date. Each such distribution
shall be payable to the holders of record of the Series Z Preferred Units, as
they appear on the records of the Partnership on the applicable Reference Record
Date.
(b) During any Distribution Period, so long as any Series Z Preferred Units
are outstanding, no distributions (whether in cash or in kind or upon
liquidation of the Partnership), except as described in the immediately
following sentence, shall be authorized and declared or paid on any series or
class or classes of Parity Units for such Distribution Period, unless full
distributions have been or contemporaneously are authorized and declared and
paid on the Series
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<PAGE>
Z Preferred Units for such Distribution Period. When distributions are not paid
in full upon the Series Z Preferred Units and any other class or classes of
Parity Units, all distributions authorized upon the Series Z Preferred Units and
any other class or classes of Parity Units shall be authorized and declared
ratably in proportion to the respective amounts of distributions unpaid on the
Series Z Preferred Units and such Parity Units (which shall not include any
accrual in respect of unpaid distributions for prior distribution periods if
such Parity Units do not have a cumulative distribution).
(c) During any Distribution Period, so long as any Series Z Preferred Units
are outstanding, no distributions (other than distributions paid solely in
Junior Units, or options, warrants or rights to subscribe for or purchase Junior
Units) shall be authorized and declared or paid or other distribution authorized
and declared or made upon Junior Units for any period, unless the full
distributions on all outstanding Series Z Preferred Units and any other Parity
Units shall have been paid or are contemporaneously paid for such Distribution
Period with respect to the Series Z Preferred Units.
(d) Without limiting the other provisions hereof, no distributions on
Series Z Preferred Units (other than liquidating distributions made in
accordance with Section 13.2 of the main part of the Partnership Agreement and
Section 4 hereof) shall be paid by the Partnership at such time as the terms and
provisions of any agreement of the Partnership or its affiliates or
subsidiaries, relating to bona fide indebtedness for borrowed money, prohibits
such declaration or payment or provides that such declaration or payment would
constitute a breach thereof or a default thereunder, or if such declaration or
payment shall be restricted or prohibited by law.
(e) Upon liquidation, dissolution or winding up of the Partnership, no
distributions shall be made to any series or class or classes of Junior Units
until after payment shall have been made in full to the holders of any Series Z
Preferred Units then outstanding, as provided in Section 4(a).
(f) With respect to Common Units issued upon conversion of Series Z
Preferred Units pursuant to Sections 6 or 7 hereof or upon redemption of Series
Z Preferred Units pursuant to Section 5 hereof, the first Regular Common Unit
Distribution subsequent to the date of conversion or redemption, as applicable,
shall be reduced by multiplying the amount of such distribution by a fraction,
the numerator of which equals the number of days such Common Units had been
outstanding during the quarterly period to which such distribution relates and
the denominator of which shall equal the total number of days during such
quarterly period.
4. Liquidation Preference.
----------------------
(a) In the event of any liquidation, dissolution or winding up of the
Partnership, whether voluntary or involuntary ("Liquidation Event"), before any
payment or distribution of the assets of the Partnership (whether capital or
surplus) shall be made to or set apart for the holders of Junior Units, the
holders of Series Z Preferred Units shall be entitled to receive Thirty-Seven
Dollars and Twenty-Five Cents ($37.25) per Series Z Preferred Unit (the
"Liquidation Preference").
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<PAGE>
If, upon any such Liquidation Event, the assets of the Partnership, or
proceeds thereof, distributable among the holders of Series Z Preferred Units
shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other Parity Units, then such assets, or the
proceeds thereof, shall be distributed among the holders of such Series Z
Preferred Units and any such other Parity Units ratably in accordance with the
respective amounts that would be payable on such Series Z Preferred Units and
any such other Parity Units if all amounts payable thereon were paid in full.
(b) Subject to the rights of the holders of Units of any series or class or
classes of Units ranking on a parity with or senior to the Series Z Preferred
Units upon any such Liquidation Event, after payment shall have been made in
full to the holders of the Series Z Preferred Units and Parity Units, as
provided in this Section 4, any series or class or classes of Junior Units
shall, subject to any respective terms and provisions applying thereto, be
entitled to receive any and all assets remaining to be paid or distributed.
(c) After payment of the full amount of the liquidating distributions to
which they are entitled pursuant to Sections 4(a) and (b), the holders of Series
Z Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
(d) The consolidation or merger of the Partnership with or into any other
corporation, partnership or entity or of any other corporation, partnership or
entity with or into the Partnership, or an exchange of Units or partnership
interests, or the sale, lease or conveyance of all or substantially all of the
property or business of the Partnership, shall not be deemed to constitute a
Liquidation Event.
5. Redemption.
----------
(a) If the Conversion Date has not occurred by August 11, 2002 (30 months
after the Signing Date) the General Partner shall give written notice on that
date as required below and must thereafter redeem for cash all but not less than
all of the Series Z Preferred Units which have not been converted pursuant to
Section 6 or Section 7 hereof on or before the Redemption Date (as defined
below). The obligation of the General Partner described in this paragraph 5(a)
shall be referred to as the "Redemption Requirement." Pursuant to the
Redemption Requirement, the General Partner shall deliver a notice on August
11, 2002 (30 months after the Signing Date) (the "Redemption Notice") to each
holder of record of Series Z Preferred Units. The date on which the Series Z
Preferred Units are to be redeemed (the "Redemption Date") shall be selected by
the General Partner, shall be specified in the Redemption Notice, and shall be
not less than thirty (30) days or more than sixty (60) days after August 11,
2002 (30 months after the Signing Date). The Redemption Notice shall be
delivered by the General Partner to each holder of record of outstanding Series
Z Preferred Units in accordance with Section 10. If the General Partner
delivers a Redemption Notice to the holders of Series Z Preferred Units, such
holders shall have the right, subject to Section 7(a) hereof, to convert their
Series Z Preferred Units pursuant to Section 6 hereof on or before the
Redemption Date. To the extent that Series Z Preferred Units are so converted,
the General Partner's obligation to redeem such units shall terminate effective
upon such conversion.
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<PAGE>
(b) Upon redemption of Series Z Preferred Units by the Partnership on the
Redemption Date, each holder of a Series Z Preferred Unit so redeemed shall be
entitled to receive from the Partnership an amount in cash with respect to each
Series Z Preferred Unit redeemed pursuant to the Redemption Requirement an
amount (the "Redemption Amount") determined in accordance with clause (i) or
clause (ii), as applicable, of this paragraph 5(b) in exchange for such Series Z
Preferred Unit:
(i) if on the Redemption Date the Adjusted Fair Market Value (as
defined below) of a Common Unit is equal to or greater than
the Liquidation Preference, then the Redemption Amount shall
equal the product of (A) the Fair Market Value of a Common
Unit as of the Redemption Date multiplied by (B) the
Adjustment factor;
(ii) If on the Redemption Date the Adjusted Fair Market Value of
a Common Unit is less than the Liquidation Preference, then
the Redemption Amount shall equal the Liquidation
Preference.
For purposes of this Section 5(b), the Adjusted Fair Market Value as of any date
shall equal the Fair Market Value as of such date multiplied by the Adjustment
Factor.
(c) A Redemption Notice shall be provided in the manner provided in Section
10. Any defect in a Redemption Notice or in the mailing thereof, to any
particular holder, shall not affect the sufficiency of the notice or the
validity of the proceedings for redemption with respect to the other holders.
Any Redemption Notice that was mailed in the manner herein provided shall be
conclusively presumed to have been duly given on the date of deemed delivery
provided in Section 10, whether or not the holder receives the notice. Notice
having been delivered as aforesaid, from and after the Redemption Date, said
Series Z Preferred Units shall no longer be deemed to be outstanding, and all
rights of the holders thereof as holders of Series Z Preferred Units of the
Partnership shall cease (except the rights to receive cash upon such
redemption).
(d) After the redemption of Series Z Preferred Units as aforesaid, the
Partnership shall deliver to such holder, upon his written request, a
certificate of the General Partner certifying the number of Series Z Preferred
Units held by such person immediately after such redemption.
(e) Each Series Z Preferred Unit holder covenants and agrees with the
Partnership that all Series Z Preferred Units delivered for redemption pursuant
to this Section 5 shall be delivered to the Partnership free and clear of all
liens, and, notwithstanding anything contained herein to the contrary, the
Partnership shall not be under any obligation to redeem Series Z Preferred Units
which are subject to any liens.
(f) The rights of each holder of Series Z Preferred Unit pursuant to this
Certificate of Designations in general and this Section 5 in particular arise
solely from such holder ownership as a limited partner of partnership interests
in the Partnership and not from such holder being a creditor of the Partnership,
and none of such rights with respect to any required redemption pursuant to this
Section 5 shall constitute a "claim" as such term is defined in Section 101 of
the United States Bankruptcy Code, as amended; provided, however, that any
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<PAGE>
rights in respect of such Series Z Preferred Units shall constitute equity
interests of each holder thereof hereunder, it being agreed and understood that
no holder of Series Z Preferred Units is waiving any equity interest such holder
has in the Partnership or any rights to assert any such interests in any
bankruptcy proceeding or otherwise.
6. Conversion at the Option of a Holder.
------------------------------------
Holders of Series Z Preferred Units shall have the right to convert all or
a portion of such units into Common Units, as follows:
(a) Subject to and upon compliance with the provisions of this Section 6,
on the earlier of (A) any day from and after February 11, 2002 (24 months from
the Signing Date) or (B) the effective time of a Liquidation Event or (C) the
effective time of a Transaction (each such day, an "Option Strike Date"), each
holder of Series Z Preferred Units, upon giving prior written notice as provided
below, shall have the right to convert all or any portion of such holder's
Series Z Preferred Units into a number of fully paid and non-assessable Common
Units equal to the greater of (i) one (1) multiplied by the Adjustment Factor or
(ii) Liquidation Preference of the Series Z Preferred Units to be converted
divided by the Conversion Price. Such right of each holder of Series Z
Preferred Units described in this Section 6(a) shall be referred to as the
"Optional Conversion Right."
In order to exercise its Optional Conversion Right, a holder of Series Z
Preferred Units shall deliver a notice (an "Optional Conversion Notice") in the
form attached hereto as Exhibit A to the Partnership (with a copy to the General
Partner) not less than 30 nor more than 60 days prior to an Option Strike Date;
provided, however, that the right of a holder of Series Z Preferred Units to
deliver an Optional Conversion Notice with respect to Series Z Preferred Units
called for redemption pursuant to Section 5 hereof shall terminate on that date
which is the third business day prior to the Redemption Date, unless the
Partnership shall default in making the cash payment required upon redemption on
the Redemption Date as provided in Section 5 hereof; and provided, further,
however, that if the General Partner has not given to the holders of Series Z
Preferred Units notice of a proposed or upcoming Liquidation Event or
Transaction at least forty-five (45) days prior to the effective date of such
Liquidation Event or Transaction, then holders of Series Z Preferred Units shall
have the right to deliver an Optional Conversion Notice until the earlier of (x)
the Twentieth day after such notice from the General Partner of a Liquidation
Event or Transaction or (y) the third business day immediately preceding the
effective date of the applicable Liquidation Event or Transaction.
(b) A conversion of Series Z Preferred Units for which the holder thereof
has given an Optional Conversion Notice shall occur automatically after the
close of business on the applicable Option Strike Date without any action on the
part of the holders of Series Z Preferred Units, and immediately after the close
of business on the Option Strike Date the holders of Series Z Preferred Units
who had all or a portion of their Series Z Preferred Units converted shall be
credited on the books and records of the Partnership with the issuance as of the
opening of business on the next day of the Common Units issuable upon such
conversion.
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<PAGE>
After the conversion of Series Z Preferred Units as aforesaid, the
Partnership shall deliver to such holder, upon his written request, a
certificate of the General Partner certifying the number of Common Units and
Preferred Units held by such person immediately after such conversion.
Each conversion shall be deemed to have been effected immediately prior to
the close of business on the Option Strike Date specified in the Optional
Conversion Notice and the Series Z Preferred Units so presented for conversion
shall be deemed converted into Common Units at the close of business on such
date, and such conversion shall be at the Conversion Price in effect on such
date (unless such day is not a Business Day, in which event such conversion
shall be deemed to have become effective at the close of business on the next
succeeding Business Day).
(c) No fractions of Common Units shall be issued upon conversion of the
Series Z Preferred Units. Instead of any fractional interest in a Common Unit
that would otherwise be deliverable upon the conversion of a Series Z Preferred
Unit, the Partnership shall pay to the holder of such Series Z Preferred Unit an
amount in cash based upon the Current Market Price of Common Units on the
Trading Day immediately preceding the date of conversion. If more than one
Series Z Preferred Unit shall be surrendered for conversion at one time by the
same holder, the number of full Common Units issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Series Z Preferred
Units so surrendered.
(d) The Partnership further covenants that any Common Units issued upon
conversion of the Series Z Preferred Units shall be validly issued, fully paid
and non-assessable.
(e) The Assignee of any Limited Partner pursuant to Section 11 hereof
and/or Section 11 of the main part of the Partnership Agreement (and pursuant to
the terms of the Registration Rights and Lock-Up Agreement) may exercise the
rights of such Limited Partner pursuant to this Section 6, and such Limited
Partner shall be deemed to have assigned such rights to such Assignee and shall
be bound by the exercise of such rights by the Assignee. In connection with any
exercise of such rights by an Assignee of a Limited Partner, the cash amount
shall be paid by the Partnership directly to such Assignee and not to such
Limited Partner.
(f) An Optional Conversion Notice shall be provided in the manner provided
in Section 10. Any defect in an Optional Conversion Notice or in the mailing
thereof to the Partnership shall not affect the sufficiency of the notice or the
validity of the proceedings for redemption with respect to the other holders.
Any notice that was mailed in the manner herein provided shall be conclusively
presumed to have been duly given on the date of deemed delivery provided in
Section 10, whether or not the holder receives the notice.
(g) Each Series Z Preferred Unit holder covenants and agrees with the
Partnership that all Series Z Preferred Units delivered for conversion pursuant
to this Section 6 shall be delivered to the Partnership free and clear of all
liens, and, notwithstanding anything contained herein to the contrary, the
Partnership shall not be under any obligation to convert Series Z Preferred
Units which are subject to any liens.
(h) Notwithstanding any thing to the contrary in the main part of the
Partnership Agreement, a holder of Series Z Preferred Units may deliver a
Redemption Notice pursuant to
10
<PAGE>
Section 8.6A of the main part of the Partnership Agreement relating to those
Common Units that will be issued to such holder upon conversion of such Series Z
Preferred Units into Common Units in advance of the Option Strike Date or
Conversion Date, as applicable; provided, however, that the redemption of such
Common Units by the Partnership shall in no event take place until such Common
Units are issued upon the conversion of the Series Z Preferred Units pursuant to
either Section 6 or Section 7 hereof. For clarity, it is noted that the
objective of this paragraph is to put a holder in a position where, if he so
wishes, the Common Units into which his Series Z Preferred Units will be
converted can be redeemed by the Partnership simultaneously with such
conversion, with the further consequence that, if the Partnership elects to
satisfy its redemption obligation with respect to such Common Units under
Section 6A of the main part of the Partnership Agreement by delivering to
such holder Common Shares (as defined in the Registration Rights and Lock-Up
Agreement) rather than cash, then such holder will have such common Shares
issued to him simultaneously with the conversion of his Series Z Preferred Units
into Common Units, such that such holder can be in a position to sell such
Common Shares as contemplated by the Registration Rights and Lock-Up Agreement
or otherwise without delay. The General Partner shall cooperate with a holder of
Series Z Preferred Units to coordinate the timing of the different events
described in the foregoing sentence (including the calculation of the number of
Common Units into which such holder's Series Z Preferred Units will convert and
the mechanics of issuing and delivering Common Units and Common Shares) and
shall use commercially reasonable efforts to cause the conversion of such
holder's Series Z Preferred Units, the redemption of the Common Units issued
upon such conversion and the issuance of the Common Shares to be issued upon
such redemption, if applicable, to occur in such a manner as to accomplish the
objective described in the foregoing sentence.
7. Mandatory Automatic Conversion.
------------------------------
(a) Unless redeemed by the Partnership pursuant to Section 5 hereof, or
previously converted at the election of the holders pursuant to Section 6
hereof, on the later of (a) February 11, 2002 (24 months from the Signing Date)
or (b) the expiration of the Lock-up (as defined in the Registration Rights and
Lock-Up Agreement) pursuant to Section 2(a) of the Registration Rights and Lock-
Up Agreement or (c) the earlier of either (i) the date upon which, pursuant to
and in accordance with the terms of the Registration Rights and Lock-Up
Agreement a Registration Statement (as defined therein) relating to all of the
Registrable Shares (as defined therein) has been declared effective by the
Securities and Exchange Commission, provided that the General Partner has given
at least five (5) trading days prior written notice to the holders of Series Z
Preferred Units that such declaration of effectiveness would be forthcoming on
such date or (ii) if such written notice has not been given at least five (5)
trading days prior to such a declaration of effectiveness, then the date that is
the fifth (5th) trading day after a written notice of such declaration of
effectiveness is given to the holders of Series Z Preferred Units by the General
Partner (the "Conversion Date"), each Series Z Preferred Unit that has not been
redeemed prior to such date pursuant to Section 5 hereof or converted pursuant
to Section 6 hereof shall automatically and without any notice or action being
required of the Partnership, the General Partner or any holder of Series Z
Preferred Units, be converted into a number of Common Unit(s) equal to the
greater of (i) one (1) multiplied by the Adjustment Factor or (ii) the
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Liquidation Preference of each Series Z Preferred Unit held by such holder
divided by the Conversion Price. Fractional Units shall be paid in dollars as
described in (c) below.
(b) The conversion of all unredeemed Series Z Preferred Units shall occur
automatically at the close of business on the Conversion Date, without any
action on the part of the holders of Series Z Preferred Units or the
Partnership, and immediately after the close of business on such date any holder
of Series Z Preferred Units who had all or a portion of its Series Z Preferred
Units converted shall be credited on the books and records of the Partnership
with the issuance as of the opening of business on the next day of the Common
Units issuable upon such conversion. The conversion shall be deemed to have
been effected immediately at the close of business on the Conversion Date, and
the Series Z Preferred Units shall be deemed converted into Common Units at the
close of business on such date. After the conversion of Series Z Preferred
Units as aforesaid, the Partnership shall deliver to such holder, upon his
written request, a certificate of the General Partner certifying the number of
Common Units held by such person immediately after such conversion.
Notwithstanding anything in this Section 7 to the contrary, if within ten (10)
trading days after a Conversion Date the Company initiates a Suspension Period
(as defined in Section 8(c) of the Registration Rights and Lock-Up Agreement) or
an Offering Blackout Period (as defined in Section 8(d) of the Registration
Rights and Lock-Up Agreement), then immediately upon such event (a "Reconversion
Event"), and retroactive as of the Conversion Date, all Common Units issued to
holders of Series Z Preferred Units upon conversion pursuant to this Section 7
which continue to be held by such holders on the date of the Reconversion Event
(the "Reconversion Date") shall be deemed to have been reconverted into the
corresponding original number of Series Z Preferred Units held by such holder on
the Conversion Date prior to such conversion. Following a Reconversion Event,
all provisions hereof (including without limitation this Section 7, including
without limitation this paragraph (b)) shall again apply to the Series Z
Preferred Units into which the Common Units shall have been reconverted to the
same extent as they applied before the original Conversion Date, except the new
Conversion Date shall be the business date immediately following the date on
which the Suspension Period or Offering Blackout Period, as applicable, ends, if
on such date the Registration Statement (as defined in the Registration Rights
and Lock-Up Agreement) is effective and available to holders of Registrable
Shares (as defined in the Registration Rights and Lock-Up Agreement) for resales
thereof. For clarity, it is noted that the objective of the preceding sentence
is to provide for the application of all of the provisions of this Certificate
as to any and all Series Z Preferred Units that are reconverted in accordance
with this Section, including, without limitation, the terms for reconversion set
forth in this Section, such that any Series Z Preferred Units that are again
converted into Common Units after previous reconversion(s) in accordance with
this Section will be subject to a further reconversion in the event of another
subsequent Suspension Period or Offering Blackout Period within the time frame
set forth above.
(c) No fractions of Common Units shall be issued upon conversion of the
Series Z Preferred Units. Instead of any fractional interest in a Common Unit
that would otherwise be deliverable upon the conversion of Series Z Preferred
Units, the Partnership shall pay to the holder of such Series Z Preferred Units
within two Business Days of the Conversion Date by certified check to or on the
order of the holders of Series Z Preferred Units, an amount in cash based upon
the Current Market Price of Common Units on the Trading Day immediately
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<PAGE>
preceding the date of conversion, it being understood that if a holder has more
than one Series Z Preferred Unit, then the number of full Common Units issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of Series Z Preferred Units held by such holder.
(d) (i) The following events shall be "Adjustment Events": if the
Partnership shall after the date hereof (A) make a distribution
on its Common Units in Common Units, (B) subdivide its
outstanding Common Units into a greater number of units, (C)
combine its outstanding Common Units into a smaller number of
units or (D) issue any units by reclassification of its Common
Units.
(ii) If one or more Adjustment Events occur between the Signing Date
and the Redemption Date, Option Strike Date, or Conversion Date,
as applicable, then on the Redemption Date, Option Strike Date,
or Conversion Date, as applicable, the Adjustment Factor shall be
recalculated once by using a single formula that takes into
account each and every Adjustment Event as if all Adjustment
Events occurred simultaneously the Redemption Date, Option Strike
Date, or Conversion Date, as applicable, as described in clause
(iii) of this Section 7(d).
(iii) With respect to each single Adjustment Event, the Adjustment
Factor shall be recalculated by multiplying it by a fraction (A)
the numerator of which shall be the number of Common Units
outstanding immediately after giving effect to such Adjustment
Event and (B) the denominator of which shall be the number of
Common Units outstanding immediately before giving effect to such
Adjustment Event.
(iv) Notwithstanding any other provisions of this Section 7, the
Partnership shall not be required to make any adjustment of the
Adjustment Factor for the issuance of any Common Units pursuant
to any employee benefit or compensation plan or other plan
providing for the reinvestment of distributions or interest
payable on securities of the Partnership and the investment of
additional optional amounts in Common Units under such plan (or
the issuance of any Common Units to the Company in respect of a
capital contribution by it resulting from an analogous sale of
its securities). All calculations under this Section 7 shall be
made to the nearest cent with $.005 being rounded upward) or to
the nearest one-tenth of a Unit (with .05 of a Unit being rounded
upward), as the case may be.
(e) If the Partnership shall be a party to any transaction (including
without limitation a merger, consolidation, unit exchange, self tender offer for
all or substantially all Common Units or sale of all or substantially all of the
Partnership's assets, but excluding any transaction which constitutes an
Adjustment Event for purposes of paragraph (d) of this Section 7) (each of the
foregoing being referred to herein as a "Transaction"), in each case as a result
of which Common Units shall be converted into the right to receive securities or
other property (including cash or any combination thereof), each Series Z
Preferred Unit shall automatically be converted
13
<PAGE>
into the right to receive in connection with such Transaction the kind and
amount of securities and other property (including cash or any combination
thereof) receivable upon the consummation of such Transaction by a holder of
that number of Common Units into which one Series Z Preferred Unit would have
been converted immediately prior to such Transaction pursuant to Section 6(a)
applied as of the effective date of such Transaction (assuming that such date
was the Option Strike Date), assuming such holder of Common Units (i) is not a
Person with which the Partnership consolidated or into which the Partnership
merged or which merged into the Partnership or to which such sale or transfer
was made, as the case may be (a "Constituent Person"), or an affiliate of a
Constituent Person and (ii) failed to exercise his or her rights of election, if
any, as to the kind or amount of securities and other property (including cash)
receivable upon such Transaction (provided that if the kind or amount of stock,
securities and other property (including cash) receivable upon such Transaction
is not the same for each Common Unit of the Partnership held immediately prior
to such Transaction by other than a Constituent Person or an affiliate thereof
and in respect of which such rights of election by such person shall not have
been exercised ("Non-Electing Unit"), then for the purpose of this paragraph (e)
the kind and amount of securities and other property (including cash) receivable
upon such Transaction by each Non-Electing Unit shall be deemed to be the kind
and amount so receivable per Unit by a plurality of the Non- Electing Units).
(f) If the Adjustment Factor is adjusted as herein provided, the
Partnership shall promptly file in the books and records of the Partnership an
officer's certificate setting forth the Adjustment Factor after such adjustment
as required by the terms hereof and setting forth a brief statement of the facts
requiring such adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment absent manifest error. Promptly after filing of
such certificate, the Partnership shall prepare a notice of such adjustment of
the Adjustment Factor setting forth the adjusted Adjustment Factor and the
effective date such adjustment becomes effective and shall mail such notice of
such adjustment of the Adjustment Factor to the holders of each Series Z
Preferred Unit at such holder's last address as shown on the records of the
Partnership.
(g) In any case in which paragraph (d) of this Section 7 provides that an
adjustment shall become effective upon the occurrence of an Adjustment Event,
the Partnership may defer until the occurrence of such event (A) issuing to the
holder of any Series Z Preferred Unit converted before the occurrence of such
event the additional Common Units issuable upon such conversion by reason of the
adjustment required by such event over and above the Common Units issuable upon
such conversion before giving effect to such adjustment and (B) paying to such
holder any amount of cash in lieu of any fractional Common Unit.
(h) There shall be no adjustment of the Adjustment Factor in case of the
issuance of any Units in a financing, reorganization, acquisition or other
similar business transaction except as specifically set forth in this Section 7.
If any action would require adjustment of the Adjustment Factor pursuant to more
than one paragraph of this Section 7, only one adjustment shall be made, and
such adjustment shall be the amount of adjustment that has the highest absolute
value.
14
<PAGE>
(i) If the Partnership shall take any action affecting the Common Units,
other than action described in this Section 7, that in the opinion of the
General Partner would materially adversely affect the conversion rights of the
holders of the Series Z Preferred Units, the Adjustment Factor may be adjusted,
to the extent permitted by law, in such manner, if any, and at such time, as the
General Partner, in its sole discretion, may determine to be equitable in the
circumstances.
(j) The Assignee of any Limited Partner pursuant to Section 11 hereof
and/or Section 11 of the main part of the Partnership Agreement (and pursuant to
the terms of the Registration Rights and Lock-Up Agreement) may exercise the
rights of such Limited Partner pursuant to this Section 7, and such Limited
Partner shall be deemed to have assigned such rights to such Assignee and shall
be bound by the exercise of such rights by the Assignee. In connection with any
exercise of such rights by an Assignee of a Limited Partner, the cash amount
shall be paid by the Partnership directly to such Assignee and not to such
Limited Partner.
(k) Notwithstanding any thing to the contrary in the main part of the
Partnership Agreement, a holder of Series Z Preferred Units may deliver a
Redemption Notice pursuant to Section 8.6A of the main part of the Partnership
Agreement relating to those Common Units that will be issued to such holder upon
conversion of such Series Z Preferred Units into Common Units in advance of the
Option Strike Date or Conversion Date, as applicable; provided, however, that
the redemption of such Common Units by the Partnership shall in no event take
place until such Common Units are issued upon the conversion of the Series Z
Preferred Units pursuant to either Section 6 or Section 7 hereof. For clarity,
it is noted that the objective of this paragraph is to put a holder in a
position where, if he so wishes, the Common Units into which his Series Z
Preferred Units will be converted can be redeemed by the Partnership
simultaneously with such conversion, with the further consequence that, if the
Partnership elects to satisfy its redemption obligation with respect to such
Common Units under Section 6A of the main part of the Partnership Agreement
by delivering to such holder Common Shares (as defined in the Registration
Rights and Lock-Up Agreement) rather than cash, then such holder will have such
Common Shares issued to him simultaneously with the conversion of his Series Z
Preferred Units into Common Units, such that such holder can be in a position to
sell such Common Shares as contemplated by the Registration Rights and Lock-Up
Agreement or otherwise without delay. The General Partner shall cooperate with a
holder of Series Z Preferred Units to coordinate the timing of the different
events described in the foregoing sentence (including the calculation of the
number of Common Units into which such holder's Series Z Preferred Units will
convert and the mechanics of issuing and delivering Common Units and Common
Shares) and shall use commercially reasonable efforts to cause the conversion of
such holder's Series Z Preferred Units, the redemption of the Common Units
issued upon such conversion and the issuance of the Common Shares to be issued
upon such redemption, if applicable, to occur in such a manner as to accomplish
the objective described in the foregoing sentence.
The Partnership further covenants that any Common Units issued upon
conversion or redemption of the Series Z Preferred Units shall be validly
issued, fully paid and non-assessable.
8. Voting Rights.
15
<PAGE>
(a) Holders of the Series Z Preferred Units will (a) have those voting
rights from time to time required by law, (b) have the same voting rights as a
holder of Common Units has under the main part of the Partnership Agreement,
voting as a single class with the Common Units, with each Series Z Preferred
Unit being treated as one (1) Common Unit for purposes of any such vote, and (c)
have those additional voting rights that are set forth below.
(b) So long as any Series Z Preferred Units remain outstanding, the
Partnership shall not, without the affirmative vote of the holders of at least a
majority of the Series Z Preferred Units outstanding at the time, given in
person or by proxy, either in writing or at a meeting (voting separately as a
class), amend, alter or repeal the provisions of the Partnership Agreement,
whether by merger, consolidation or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of the Series Z
Preferred Units or the holders thereof in their capacity as holders of Series Z
Preferred Units, unless such amendment, alteration, or repeal affects equally,
ratably and proportionately the rights, privileges and voting powers of the
holders of Common Units; but subject, in any event, to the following provisions:
(i) With respect to the occurrence of any merger, consolidation or
other business combination or reorganization, so long as the
Series Z Preferred Units are treated in accordance with paragraph
(e) of Section 7 hereof, the occurrence of any such event shall
not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers of the holders of the
Series Z Preferred Units.
(ii) Any creation or issuance of any Common Units or of any class or
series of Preferred Units, whether ranking senior to, junior to,
or on a parity with the Series Z Preferred Units with respect to
the payment of distributions and the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers of the holders of the Series Z
Preferred Units.
(c) The foregoing voting provisions will not apply if, at or prior to the
time when the act, with respect to which such vote would otherwise be required,
will be effected, all outstanding Series Z Preferred Units shall have been
redeemed or converted.
9. Ranking. The Series Z Preferred Units shall rank junior to all other
classes or series of Units of the Partnership whether now authorized or
outstanding or hereafter created, authorized or issued, except that (a) as to
distribution of assets upon liquidation, dissolution or winding up, the Series Z
Preferred Units shall rank senior to the Common Units, (b) as to the payment of
distributions, during the Half Distribution Period and any Full Distribution
Period, the Series Z Preferred Units shall rank pari passu with the Common
Units, and (c) as to the payment of distributions and as to distribution of
assets upon liquidation, dissolution or winding up, any class or series which by
its terms specifies that it shall rank junior ("Junior Units") to or on a parity
("Parity Units") with Series Z Preferred Units shall rank junior or pari passu,
as the case may be with the Series Z Preferred Units.
16
<PAGE>
10. Notices. All notices, demand, requests or other communications which
may be or are required to be given, served or sent hereunder will be in writing
and delivered by certified U.S. mail, return receipt required, with postage
prepaid, or by nationally recognized overnight courier service that provides
tracking and proof of receipt. Notices shall be deemed delivered upon the
earlier of (i) delivery, (ii) refusal of delivery by addressee, (iii) two
Business Days after deposit in the U.S. Mails in the case of certified U.S.
mail, or (iv) one Business Day after deposit with a nationally recognized
overnight courier. Notices to Series Z Preferred Unitholders shall be sent to
their address of record with the Partnership. Any Series Z Preferred Unitholder
may change its address of record by written notice as given as aforesaid.
Notices delivered to the Partnership shall be addressed to Boston Properties
Limited Partnership, Attn.: Chief Financial Officer, 800 Boylston Street, Suite
400, Boston, MA 02199-8001 or to such other address as the Partnership may have
notified holders in the manner provided in this Section 10.
11. Transfers. Subject to the terms of the Registration Rights and Lock-
Up Agreement, a holder of Series Z Preferred Units shall be entitled to transfer
such Series Z Preferred Units to the same extent that holders of Common Units
are entitled to transfer their Common Units pursuant to Article 11 of the main
part of the Partnership Agreement.
17
<PAGE>
IN WITNESS WHEREOF, Boston Properties, Inc., as General Partner of the
Partnership, has caused this Certificate of Designations to become effective,
and the Partnership Agreement is hereby amended by giving effect to the terms
set forth herein.
BOSTON PROPERTIES, INC.
By:_________________________________
Name:
Title:
Date: December __, 2000
18
<PAGE>
Exhibit A
---------
to the Certificate of Designations for the
Series Z Preferred Units
NOTICE OF ELECTION BY PARTNER TO CONVERT
SERIES Z PREFERRED UNITS INTO COMMON UNITS
The undersigned Series Z Preferred Unitholder hereby irrevocably (i) elects
to convert the number of Series Z Preferred Units in Boston Properties Limited
Partnership (the "Partnership") set forth below into Common Units in accordance
with the terms of the Second Amended and Restated Agreement of Limited
Partnership of the Partnership and the Certificate of Designations relating to
the Series Z Preferred Units that is a part thereof; and (ii) directs that any
cash in lieu of Common Units that may be deliverable upon such conversion be
delivered to the address specified below. The undersigned hereby represents,
warrants, and certifies that the undersigned (a) has title to such Series Z
Preferred Units, free and clear of the rights or interests of any other person
or entity other than the Partnership; (b) has the full right, power, and
authority to cause the conversion of such Series Z Preferred Units as provided
herein; and (c) has obtained the consent or approval of all persons or entities,
if any, having the right to consent or approve such conversion.
Name of Series Z Preferred Unit holder:_____________________________________
(Please Print: Exact Name as Registered with Partnership)
Date of this Notice:
_________________________________________
(Signature of Limited Partner: Sign Exact
Name as Registered with Partnership)
_________________________________________
(Street Address)
_________________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_________________________________________
19
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.6
<SEQUENCE>3
<FILENAME>dex106.txt
<DESCRIPTION>1997 AMENDED STOCK OPTION PLAN
<TEXT>
<PAGE>
Exhibit 10.6
BOSTON PROPERTIES, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
AS AMENDED AND RESTATED ON JANUARY 24, 2000
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
----------------------------------------
The name of the plan is the Boston Properties, Inc. 1997 Stock Option and
Incentive Plan (the "Plan"). The purpose of the Plan is to encourage and enable
the officers, employees, Independent Directors and other key persons of Boston
Properties, Inc. (the "Company"), and the employees and other key persons of
Boston Properties Limited Partnership (the "Operating Partnership") and the
Company's other Subsidiaries, upon whose judgment, initiative and efforts the
Company largely depends for the successful conduct of its business to acquire a
proprietary interest in the Company. It is anticipated that providing such
persons with a direct stake in the Company's welfare will assure a closer
identification of their interests with those of the Company, thereby stimulating
their efforts on the Company's behalf and strengthening their desire to remain
with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended from time to
time.
"Administrator" is defined in Section 2(a).
"Award" or "Awards," except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Restricted Stock Awards, Deferred Stock Awards, Unrestricted Stock
Awards, Performance Share Awards, Dividend Equivalent Rights and Other Stock-
Based Awards.
"Board" means the Board of Directors of the Company as constituted from
time to time.
"Change of Control" is defined in Section 16.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor Code, and related rules, regulations and
interpretations.
"Committee" means the Committee of the Board referred to in Section 2.
"Company" means Boston Properties, Inc., a Delaware corporation, and any
successor thereto.
"Deferred Stock Award" means Awards granted pursuant to Section 7.
"Dividend Equivalent Right" means Awards granted pursuant to Section 10.
<PAGE>
"Effective Date" means the date on which the Plan is initially approved by
stockholders as set forth in Section 18.
"Fair Market Value" on any given date means the last reported sale price at
which Stock is traded on such date or, if no Stock is traded on such date, the
next preceding date on which Stock was traded, as reflected on the principal
stock exchange or, if applicable, any other national stock exchange on which the
Stock is traded or admitted to trading. Notwithstanding the foregoing, the Fair
Market Value on the first day of the Company's initial public offering of Stock
shall be the initial public offering price as set forth in the final prospectus
for the Company's initial public offering.
"Incentive Stock Option" means any Stock Option that qualifies as and is
designated in writing in the related Option agreement as constituting an
"incentive stock option" as defined in Section 422 of the Code.
"Independent Director" means a member of the Board who is not also an
employee of the Company or any Subsidiary.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Operating Partnership" means Boston Properties Limited Partnership, a
Delaware limited partnership, and any successor thereto.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Other Stock-Based Award" means Awards granted pursuant to Section 11.
"Performance Share Award" means Awards granted pursuant to Section 9.
"Restricted Stock Award" means Awards granted pursuant to Section 6.
"Retirement" means the employee's termination of employment with the
Company and its Subsidiaries after attainment of the age and/or service
requirements to qualify for early or normal retirement under the Company's
qualified retirement plan.
"Stock" means the Common Stock, par value $.01 per share, of the Company,
subject to adjustments pursuant to Section 3.
"Subsidiary" means any corporation or other entity (other than the Company)
in any unbroken chain of corporations or other entities beginning with the
Company if each of the corporations or entities (other than the last corporation
or entity in the unbroken chain) owns
2
<PAGE>
stock or other interests possessing 50 percent or more of the economic interest
or the total combined voting power of all classes of stock or other interests in
one of the other corporations or entities in the chain.
"Unrestricted Stock Award" means any Award granted pursuant to Section 8.
SECTION 2. ADMINISTRATION OF PLAN; ADMINISTRATOR AUTHORITY TO SELECT
---------------------------------------------------------
PARTICIPANTS AND DETERMINE AWARDS
---------------------------------
(a) Committee. The Plan shall be administered by either the Board or a
committee of not less than two Independent Directors (in either case, the
"Administrator"). Each member of the Committee shall be a "non-employee
director" within the meaning of Rule 16b-3(b)(3)(i) promulgated under the Act,
or any successor definition under said rule. Each member of the Committee shall
also be an "outside director" within the meaning of Section 162(m) of the Code
and the regulations promulgated thereunder.
(b) Powers of Administrator. The Administrator shall have the power and
authority to grant Awards consistent with the terms of the Plan, including the
power and authority:
(i) to select the individuals to whom Awards may from time to time be
granted;
(ii) to determine the time or times of grant, and the extent, if any,
of Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock
Awards, Deferred Stock Awards, Unrestricted Stock Awards, Performance Share
Awards, Dividend Equivalent Rights and Other Stock-Based Awards, or any
combination of the foregoing, granted to any one or more participants;
(iii) to determine the number of shares of Stock to be covered by any
Award;
(iv) to determine and modify from time to time the terms and
conditions, including restrictions, not inconsistent with the terms of the
Plan, of any Award, which terms and conditions may differ among individual
Awards and participants, and to approve the form of written instruments
evidencing the Awards; provided, however, that except as otherwise provided
in Section 3(b) or 3(c), the Administrator is not permitted to reduce the
exercise price of stock options or effect repricing through cancellation
and re-grants;
(v) to accelerate at any time the exercisability or vesting of all or
any portion of any Award in circumstances involving a Change of Control or
the death, disability or termination of employment of a Plan participant;
(vi) subject to the provisions of Section 5(a)(iii), to extend at any
time the post-termination period in which Stock Options may be exercised;
3
<PAGE>
(vii) to determine at any time whether, to what extent, and under
what circumstances Stock and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the
participant and whether and to what extent the Company shall pay or credit
amounts constituting deemed interest (at rates determined by the
Administrator) or dividends or deemed dividends on such deferrals; and
(viii) at any time to adopt, alter and repeal such rules, guidelines
and practices for administration of the Plan and for its own acts and
proceedings as it shall deem advisable; to interpret the terms and
provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in connection
with the Plan; and to otherwise supervise the administration of the Plan.
All decisions and interpretations of the Administrator shall be made in the
Administrator's sole and absolute discretion and shall be final and binding on
all persons, including the Company and Plan participants.
(c) Delegation of Authority to Grant Awards. The Administrator, in its
discretion, may delegate to the Chief Executive Officer of the Company all or
part of the Administrator's authority and duties with respect to Awards,
including the granting thereof, to individuals who are not subject to the
reporting and other provisions of Section 16 of the Act or "covered employees"
within the meaning of Section 162(m) of the Code. Any such delegation by the
Administrator shall include a limitation as to the amount of Awards that may be
awarded during the period of the delegation and shall contain guidelines as to
the determination of the exercise price of any Option, the conversion ratio or
price of other Awards and the vesting criteria. The Administrator may revoke or
amend the terms of a delegation at any time but such action shall not invalidate
any prior actions of the Administrator's delegate or delegates that were
consistent with the terms of the Plan.
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; RECAPITALIZATIONS; MERGERS;
----------------------------------------------------------
SUBSTITUTE AWARDS
-----------------
(a) Stock Issuable. The maximum number of shares of Stock reserved and
available for issuance under the Plan shall be increased from 9,699,162 shares
to 14,699,162 shares as of the date of this restatement, an increase of
5,000,000 shares; plus (ii) as of the first day of each calendar quarter after
January 1, 2000, 9.5 percent of any net increase since the first day of the
preceding calendar quarter in the total number of shares of Stock actually
outstanding (assuming all units of partnership interests in the Operating
Partnership that are subject to redemption rights are converted into Stock).
Notwithstanding the foregoing, the maximum number of shares of Stock for which
Awards other than Options may be granted under the Plan shall not exceed
2,000,000 shares in the aggregate. The foregoing limitation shall apply to
shares available for issuance under the Plan prior to this restatement as well
as shares added to the Plan as a result of this restatement. For purposes of
the limitations of this
4
<PAGE>
Section 3(a), if any portion of an Award is forfeited, cancelled, reacquired by
the Company, satisfied without the issuance of Stock or otherwise terminated,
the shares of Stock underlying such portion of the Award shall be added back to
the shares of Stock available for issuance under the Plan. With respect to
grants made or compensation earned under the Plan, Stock Options with respect to
no more than 1,500,000 shares of Stock may be granted to any one individual
participant during any one calendar year period. The shares available for
issuance under the Plan may be authorized but unissued shares of Stock or shares
of Stock reacquired by the Company.
(b) Recapitalizations. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, the outstanding shares of
Stock are increased or decreased or are exchanged for a different number or kind
of shares or other securities of the Company, or additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Stock or other securities, the
Administrator may make an appropriate or proportionate adjustment in (i) the
maximum number of shares reserved for issuance under the Plan, (ii) the number
of Stock Options that can be granted to any one individual participant, (iii)
the number and kind of shares or other securities subject to any then
outstanding Awards under the Plan, and (iv) the price for each share subject to
any then outstanding Stock Options under the Plan, without changing the
aggregate exercise price (i.e., the exercise price multiplied by the number of
Stock Options) as to which such Stock Options remain exercisable. The
adjustment by the Administrator shall be final, binding and conclusive. No
fractional shares of Stock shall be issued under the Plan resulting from any
such adjustment, but the Administrator in its discretion may make a cash payment
in lieu of fractional shares.
(c) Mergers. In contemplation of and subject to the consummation of a
consolidation or merger or sale of all or substantially all of the assets of the
Company in which outstanding shares of Stock are exchanged for securities, cash
or other property of an unrelated corporation or business entity or in the event
of a liquidation of the Company (in each case, a "Transaction"), the Board, or
the board of directors of any corporation assuming the obligations of the
Company, may, in its discretion, take any one or more of the following actions,
as to outstanding Awards: (i) provide that such Awards shall be assumed or
equivalent awards shall be substituted, by the acquiring or succeeding
corporation (or an affiliate thereof), and/or (ii) upon written notice to the
participants, provide that all Awards will terminate immediately prior to the
consummation of the Transaction. In the event that, pursuant to clause (ii)
above, Awards will terminate immediately prior to the consummation of the
Transaction, all vested Awards, other than Options, shall be fully settled in
cash or in kind at such appropriate consideration as determined by the
Administrator in its sole discretion after taking into account the consideration
payable per share of Stock pursuant to the business combination (the "Merger
Price") and all Stock Options shall be fully settled, in cash or in kind, in an
amount equal to the difference between (A) the Merger Price times the number of
shares of Stock subject to such outstanding Stock Options (to the extent then
exercisable at prices not in excess of the Merger Price) and (B) the aggregate
exercise price of all such
5
<PAGE>
outstanding Stock Options; provided, however, that each participant shall be
permitted, within a specified period determined by the Administrator prior to
the consummation of the Transaction, to exercise all outstanding Stock Options,
including those that are not then exercisable, subject to the consummation of
the Transaction.
(d) Substitute Awards. The Administrator may grant Awards under the Plan
in substitution for stock and stock based awards held by employees of another
corporation who become employees of the Company or a Subsidiary as the result of
a merger or consolidation of the employing corporation with the Company or a
Subsidiary or the acquisition by the Company or a Subsidiary of property or
stock of the employing corporation. The Administrator may direct that the
substitute awards be granted on such terms and conditions as the Administrator
considers appropriate in the circumstances.
SECTION 4. ELIGIBILITY
-----------
Participants in the Plan will be such full or part-time officers and other
employees, Independent Directors and key persons of the Company, the Operating
Partnership and the Company's other Subsidiaries who are responsible for or
contribute to the management, growth or profitability of the Company, the
Operating Partnership and the Company's other Subsidiaries as are selected from
time to time by the Administrator in its sole discretion.
SECTION 5. STOCK OPTIONS
-------------
Any Stock Option granted under the Plan shall be in such form as the
Administrator may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock Options
or Non-Qualified Stock Options. Incentive Stock Options may be granted only to
employees of the Company or any Subsidiary that is a "subsidiary corporation"
within the meaning of Section 424(f) of the Code. To the extent that any Option
does not qualify as an Incentive Stock Option, it shall be deemed a Non-
Qualified Stock Option.
No Incentive Stock Option shall be granted under the Plan after January 24,
2010.
(a) Stock Options Granted to Employees and Key Persons. The Administrator
in its discretion may grant Stock Options to eligible employees and key persons
of the Company or any Subsidiary. Stock Options granted pursuant to this
Section 5(a) shall be subject to the following terms and conditions and shall
contain such additional terms and conditions, not inconsistent with the terms of
the Plan, as the Administrator shall deem desirable. If the Administrator so
determines, Stock Options may be granted in lieu of cash compensation at the
participant's election, subject to such terms and conditions as the
Administrator may establish, as well as in addition to other compensation.
6
<PAGE>
(i) Exercise Price. The exercise price per share for the Stock
covered by a Stock Option granted pursuant to this Section 5(a) shall be
determined by the Administrator at the time of grant but shall not be less
than 100 percent of the Fair Market Value on the date of grant (other than
options granted in lieu of cash compensation). If an employee owns or is
deemed to own (by reason of the attribution rules of Section 424(d) of the
Code) more than 10 percent of the combined voting power of all classes of
stock of the Company or any parent or subsidiary corporation and an
Incentive Stock Option is granted to such employee, the option price of
such Incentive Stock Option shall be not less than 110 percent of the Fair
Market Value on the grant date.
(ii) Option Term. The term of each Stock Option shall be fixed by the
Administrator, but no Option shall be exercisable more than ten years after
the date the option is granted. If an employee owns or is deemed to own
(by reason of the attribution rules of Section 424(d) of the Code) more
than 10 percent of the combined voting power of all classes of stock of the
Company or any parent or subsidiary corporation and an Incentive Stock
Option is granted to such employee, the term of such option shall be no
more than five years from the date of grant.
(iii) Exercisability; Rights of a Stockholder. Stock Options shall
become exercisable at such time or times, whether or not in installments,
as shall be determined by the Administrator at or after the grant date;
provided, however, that Stock Options granted in lieu of compensation shall
be exercisable in full as of the grant date unless the Administrator
otherwise provides in the Award agreement; provided further, however, that
an optionee's Stock Options, other than those held by Mortimer B. Zuckerman
and Edward H. Linde, shall be exercisable in full upon and after such
optionee's attainment of age 65. The Administrator may at any time
accelerate the exercisability of all or any portion of any Stock Option.
An optionee shall have the rights of a stockholder only as to shares
acquired upon the exercise of a Stock Option and not as to unexercised
Stock Options.
(iv) Method of Exercise. Stock Options may be exercised in whole or
in part, by giving written notice of exercise to the Company, specifying
the number of shares to be purchased. Payment of the purchase price may be
made by one or more of the following methods to the extent provided in the
Option Award agreement:
(A) In cash, by certified or bank check or other instrument
acceptable to the Administrator;
(B) Through the delivery (or attestation to the ownership) of
shares of Stock that are not then subject to restrictions under any
Company plan and that have been beneficially owned by the optionee for
at least six months, if permitted by the Administrator in its
discretion. Such surrendered shares shall be valued at Fair Market
Value on the exercise date;
7
<PAGE>
(C) By the optionee delivering to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and acceptable
to the Company to pay the purchase price; provided that in the event
the optionee chooses to pay the purchase price as so provided, the
optionee and the broker shall comply with such procedures and enter
into such agreements of indemnity and other agreements as the
Administrator shall prescribe as a condition of such payment
procedure; or
(D) By the optionee delivering to the Company a promissory note
if the Administrator has expressly authorized the loan of funds to the
optionee for the purpose of enabling or assisting the optionee to
effect the exercise of his Stock Option; provided that at least so
much of the exercise price as represents the par value of the Stock
shall be paid other than with a promissory note.
Payment instruments will be received subject to collection. The delivery
of certificates representing the shares of Stock to be purchased pursuant
to the exercise of a Stock Option will be contingent upon receipt from the
optionee (or a purchaser acting in his stead in accordance with the
provisions of the Stock Option) by the Company of the full purchase price
for such shares and the fulfillment of any other requirements contained in
the Stock Option or applicable provisions of laws. In the event an
optionee chooses to pay the purchase price by previously-owned shares of
Stock through the attestation method, the number of shares of Stock
transferred to the optionee upon the exercise of the Stock Option shall be
net of the shares attested to.
(v) Annual Limit on Incentive Stock Options. To the extent required
for "incentive stock option" treatment under Section 422 of the Code, the
aggregate Fair Market Value (determined as of the time of grant) of the
shares of Stock with respect to which Incentive Stock Options granted under
this Plan and any other plan of the Company or its parent and subsidiary
corporations become exercisable for the first time by an optionee during
any calendar year shall not exceed $100,000. To the extent that any Stock
Option exceeds this limit, it shall constitute a Non-Qualified Stock
Option.
(b) Reload Options. At the discretion of the Administrator and subject to
such restrictions, terms and conditions as the Administrator may establish,
Options granted under the Plan may include a "reload" feature pursuant to which
an optionee exercising an option by the delivery of a number of shares of Stock
in accordance with Section 5(a)(iv)(B) hereof would automatically be granted an
additional Option (with an exercise price equal to the Fair Market Value of the
Stock on the date the additional Option is granted and with such other terms as
the Administrator may provide) to purchase that number of shares of Stock equal
to the number delivered to exercise the original Option with an Option term
equal to the remainder of the original Option term unless the Administrator
otherwise determines in the Award agreement for the original Option grant.
8
<PAGE>
(c) Stock Options Granted to Independent Directors.
(i) Automatic Grant of Options.
(A) Each person who was an Independent Director on the effective
date of the Company's initial public offering was granted on such date
a Non-Qualified Stock Option to acquire 10,000 shares of Stock. The
exercise price per share for the Stock covered by such Non-Qualified
Stock Option shall be the initial public offering price as set forth
in the final prospectus for the Company's initial public offering.
(B) Each Independent Director who is first elected to serve as a
Director after the effective date of the Company's initial public
offering shall be granted, on the fifth business day after his
election, a Non-Qualified Stock Option to acquire 10,000 shares of
Stock.
(C) Each Independent Director who is serving as Director of the
Company on the fifth business day after each annual meeting of
shareholders, beginning with the 1998 annual meeting, shall
automatically be granted on such day a Non-Qualified Stock Option to
acquire 5,000 shares of Stock.
(D) The exercise price per share for the Stock covered by a Stock
Option granted under this Section 5(c)(i)(B) and (C) shall be equal to
the Fair Market Value of the Stock on the date the Stock Option is
granted.
(E) The Board, in its discretion, may grant additional Non-
Qualified Stock Options to Independent Directors. Any such grant may
vary among individual Independent Directors.
(ii) Exercise; Termination.
(A) Unless otherwise determined by the Administrator, an Option
granted under Section 5(c)(i)(A), (B) or (C) shall be exercisable with
respect to 50 percent of the underlying shares on the first
anniversary of the grant date and shall be exercisable with respect to
all of the underlying shares on the second anniversary of the grant
date. An Option granted under Section 5(c)(i)(E) shall be subject to
such vesting and exercisability provisions as the Board may provide at
the time of grant. An Option issued under this Section 5(c) shall not
be exercisable after the expiration of ten years from the date of
grant.
(B) Options granted under this Section 5(c) may be exercised only
by written notice to the Company specifying the number of shares to be
purchased. Payment of the full purchase price of the shares to be
purchased may be made by one or more of the methods specified in
Section 5(a)(iv). An optionee shall
9
<PAGE>
have the rights of a stockholder only as to shares acquired upon the
exercise of a Stock Option and not as to unexercised Stock Options.
(d) Non-transferability of Options. No Stock Option shall be transferable
by the optionee otherwise than by will or by the laws of descent and
distribution and all Stock Options shall be exercisable, during the optionee's
lifetime, only by the optionee. Notwithstanding the foregoing, the
Administrator, in its sole discretion, may provide in the Award agreement
regarding a given Option that the optionee may transfer, without consideration
for the transfer, his Non-Qualified Stock Options to members of his family, to
trusts for the benefit of such family members, or to partnerships in which such
family members are the only partners, provided that the transferee agrees in
writing with the Company to be bound by all of the terms and conditions of this
Plan and the applicable option agreement.
(e) Termination.
(i) Except as may otherwise be provided by the Administrator either in
the Award agreement, or subject to Section 14 below, in writing after the
Award agreement is issued, an optionee's rights in all Stock Options shall
automatically terminate upon the participant's termination of employment
(or cessation of business relationship) with the Company and its
Subsidiaries for any reason, except by reason of Retirement.
(ii) Any Stock Option held by an optionee, other than Mortimer B.
Zuckerman and Edward H. Linde, whose employment by the Company and its
Subsidiaries is terminated by reason of Retirement may thereafter be
exercised, to the extent it was exercisable at the time of such
termination, for a period of 24 months (or such other period as the
Administrator shall specify at any time) from the date of such termination
of employment by reason of Retirement, or until the expiration of the
stated term of the Stock Option, if earlier.
SECTION 6. RESTRICTED STOCK AWARDS
-----------------------
(a) Nature of Restricted Stock Awards. A Restricted Stock Award is an
Award entitling the recipient to acquire, at par value or such other higher
purchase price determined by the Administrator, shares of Stock subject to such
restrictions and conditions as the Administrator may determine at the time of
grant ("Restricted Stock"). Conditions may be based on continuing employment
(or other business relationship) and/or achievement of pre-established
performance goals and objectives. The grant of a Restricted Stock Award is
contingent on the participant executing the Restricted Stock Award agreement.
The terms and conditions of each such agreement shall be determined by the
Administrator, and such terms and conditions may differ among individual Awards
and participants.
10
<PAGE>
(b) Rights as a Stockholder. Upon execution of the Restricted Stock Award
agreement and paying any applicable purchase price, a participant shall have the
rights of a stockholder with respect to the voting of the Restricted Stock,
subject to such terms and conditions as may be contained in the Restricted Stock
Award agreement. Unless the Administrator shall otherwise determine,
certificates evidencing the Restricted Stock shall remain in the possession of
the Company until such Restricted Stock is vested as provided in Section 6(d)
below, and the participant shall be required, as a condition of the grant, to
deliver to the Company a stock power endorsed in blank.
(c) Restrictions. Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered or disposed of except as specifically provided
herein or in the Restricted Stock Award agreement. If a participant's
employment (or other business relationship) with the Company and its
Subsidiaries terminates for any reason, the Company shall have the right to
repurchase Restricted Stock that has not vested at the time of termination at
its original purchase price, from the participant or the participant's legal
representative.
(d) Vesting of Restricted Stock. The Administrator at the time of grant
shall specify the date or dates and/or the attainment of pre-established
performance goals, objectives and other conditions on which the non-
transferability of the Restricted Stock and the Company's right of repurchase or
forfeiture shall lapse. Subsequent to such date or dates and/or the attainment
of such pre-established performance goals, objectives and other conditions, the
shares on which all restrictions have lapsed shall no longer be Restricted Stock
and shall be deemed "vested." The vesting period of a Restricted Stock Award
shall be at least three years, except that in the case of a Restricted Stock
Award that may become transferable and no longer subject to forfeiture upon the
attainment of pre-established performance goals, the vesting period shall be at
least one year. Except as may otherwise be provided by the Administrator either
in the Award agreement or, subject to Section 14 below, in writing after the
Award agreement is issued, a participant's rights in any shares of Restricted
Stock that have not vested shall automatically terminate upon the participant's
termination of employment (or other business relationship) with the Company and
its Subsidiaries and such shares shall be subject to the Company's right of
repurchase as provided in Section 6(c) above.
(e) Waiver, Deferral and Reinvestment of Dividends. The Restricted Stock
Award agreement may require or permit the immediate payment, waiver, deferral or
reinvestment (in the form of additional Restricted Stock) of dividends paid on
the Restricted Stock.
SECTION 7. DEFERRED STOCK AWARDS
---------------------
(a) Nature of Deferred Stock Awards. A Deferred Stock Award is an Award
of phantom stock units to a participant, subject to restrictions and conditions
as the Administrator may determine at the time of grant. Conditions may be
based on continuing employment (or other business relationship) and/or
achievement of pre-established performance goals and
11
<PAGE>
objectives. Except in the case of Deferred Stock Awards granted pursuant to
Section 7(b) below, the vesting period of a Deferred Stock Award shall be at
least three years, except that in the case of a Deferred Stock Award that may
become transferable and no longer subject to forfeiture upon the attainment of
pre-established performance goals, the vesting period shall be at least one
year. The grant of a Deferred Stock Award is contingent on the participant
executing the Deferred Stock Award agreement. The terms and conditions of each
such agreement shall be determined by the Administrator, and such terms and
conditions may differ among individual Awards and participants. At the end of
the deferral period, the Deferred Stock Award, to the extent vested, shall be
paid to the participant in the form of shares of Stock.
(b) Election to Receive Deferred Stock Awards in Lieu of Compensation. The
Administrator may, in its sole discretion, permit a participant to elect to
receive a portion of the cash compensation or Restricted Stock Award otherwise
due to such participant in the form of a Deferred Stock Award. Any such
election shall be made in writing and shall be delivered to the Company no later
than the date specified by the Administrator and in accordance with rules and
procedures established by the Administrator. The Administrator shall have the
sole right to determine whether and under what circumstances to permit such
elections and to impose such limitations and other terms and conditions thereon
as the Administrator deems appropriate.
(c) Rights as a Stockholder. During the deferral period, a participant
shall have no rights as a stockholder; provided, however, that the participant
may be credited with Dividend Equivalent Rights with respect to the phantom
stock units underlying his Deferred Stock Award, subject to such terms and
conditions as the Administrator may determine.
(d) Restrictions. A Deferred Stock Award may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of during the deferral
period.
(e) Termination. Except as may otherwise be provided by the Administrator
either in the Award agreement or, subject to Section 14 below, in writing after
the Award agreement is issued, a participant's right in all Deferred Stock
Awards that have not vested shall automatically terminate upon the participant's
termination of employment (or cessation of business relationship) with the
Company and its Subsidiaries for any reason.
SECTION 8. UNRESTRICTED STOCK AWARDS
-------------------------
Grant or Sale of Unrestricted Stock. The Administrator may, in its sole
discretion, grant (or sell at par value or such other higher purchase price
determined by the Administrator) an Unrestricted Stock Award to any participant
pursuant to which such participant may receive shares of Stock free of any
restrictions ("Unrestricted Stock") under the Plan. Unrestricted Stock Awards
may be granted or sold as described in the preceding sentence in respect of past
services or other valid consideration, or in lieu of any cash compensation due
to such participant.
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SECTION 9. PERFORMANCE SHARE AWARDS
------------------------
(a) Nature of Performance Share Awards. A Performance Share Award is an
Award entitling the recipient to acquire shares of Stock upon the attainment of
specified performance goals. The Administrator may make Performance Share
Awards independent of or in connection with the granting of any other Award
under the Plan. The Administrator in its sole discretion shall determine
whether and to whom Performance Share Awards shall be made, the performance
goals applicable under each such Award, the periods during which performance is
to be measured, and all other limitations and conditions applicable to the
awarded Performance Shares; provided, however, that the Administrator may rely
on the performance goals and other standards applicable to other performance
unit plans of the Company in setting the standards for Performance Share Awards
under the Plan.
(b) Rights as a Stockholder. A participant receiving a Performance Share
Award shall have the rights of a stockholder only as to shares actually received
by the participant under the Plan and not with respect to shares subject to the
Award but not actually received by the participant. A participant shall be
entitled to receive a stock certificate evidencing the acquisition of shares of
Stock under a Performance Share Award only upon satisfaction of all conditions
specified in the written instrument evidencing the Performance Share Award (or
in a performance plan adopted by the Administrator).
(c) Termination. Except as may otherwise be provided by the Administrator
either in the Award agreement or, subject to Section 14 below, in writing after
the Award agreement is issued, a participant's rights in all Performance Share
Awards shall automatically terminate upon the participant's termination of
employment (or cessation of business relationship) with the Company and its
Subsidiaries for any reason.
(d) Acceleration, Waiver, Etc. At any time prior to the participant's
termination of employment (or other business relationship) by the Company and
its Subsidiaries, the Administrator may in its sole discretion accelerate, waive
or, subject to Section 14, amend any or all of the goals, restrictions or
conditions imposed under any Performance Share Award.
SECTION 10. DIVIDEND EQUIVALENT RIGHTS
--------------------------
(a) Dividend Equivalent Rights. A Dividend Equivalent Right is an Award
entitling the recipient to receive credits based on cash dividends that would
have been paid on the shares of Stock specified in the Dividend Equivalent Right
(or other award to which it relates) if such shares had been issued to and held
by the recipient. A Dividend Equivalent Right may be granted hereunder to any
participant as a component of another Award or as a freestanding award. The
terms and conditions of Dividend Equivalent Rights shall be specified in the
grant. Dividend equivalents credited to the holder of a Dividend Equivalent
Right may be paid currently or may be deemed to be reinvested in additional
shares of Stock, which may thereafter accrue additional equivalents. Any such
reinvestment shall be at Fair
13
<PAGE>
Market Value on the date of reinvestment. Dividend Equivalent Rights may be
settled in cash or shares of Stock or a combination thereof, in a single
installment or installments. A Dividend Equivalent Right granted as a component
of another Award may provide that such Dividend Equivalent Right shall be
settled upon exercise, settlement, or payment of, or lapse of restrictions on,
such other award, and that such Dividend Equivalent Right shall expire or be
forfeited or annulled under the same conditions as such other award. A Dividend
Equivalent Right granted as a component of another Award may also contain terms
and conditions different from such other award.
(b) Interest Equivalents. Any Award under this Plan that is settled in
whole or in part in cash on a deferred basis may provide in the grant for
interest equivalents to be credited with respect to such cash payment. Interest
equivalents may be compounded and shall be paid upon such terms and conditions
as may be specified by the grant.
(c) Termination. Except as may otherwise be provided by the Administrator
either in the Award agreement or, subject to Section 14 below, in writing after
the Award agreement is issued, a participant's rights in all Dividend Equivalent
Rights or interest equivalents shall automatically terminate upon the
participant's termination of employment (or cessation of business relationship)
with the Company and its Subsidiaries for any reason.
SECTION 11. OTHER STOCK-BASED AWARDS
------------------------
(a) Nature of Other Stock-Based Awards. An Other Stock-Based Award
includes other Awards of Stock and other Awards that are valued in whole or in
part by reference to, or are otherwise based on, Stock, including without
limitation, convertible preferred stock, convertible debentures, exchangeable
securities and Awards valued by reference to book value or subsidiary
performance. An Other Stock-Based Award may be granted to any participant
either along side or in addition to or in tandem with Stock Options, Restricted
Stock or Deferred Stock granted under the Plan and/or cash awards made outside
of the Plan. Stock (including securities convertible into Stock) issued on a
bonus basis under this Section 11 may be issued for no cash consideration.
Stock (including securities convertible into Stock) purchased with a purchase
right awarded under this Section 11 shall be priced at least 25 percent of the
Fair Market Value of the Stock on the date of grant. The grant of an Other
Stock-Based Award may be subject to restrictions and conditions as the
Administrator may determine at the time of grant, including conditions based on
continuing employment (or other business relationship) and/or achievement of
pre-established performance goals and objectives. The grant of an Other Stock-
Based Award is contingent on the participant executing the Award agreement. The
terms and conditions of each such agreement shall be determined by the
Administrator, and such terms and conditions may differ among individual Awards
and participants.
(b) Rights as a Stockholder. Until such time as an Other Stock-Based Award
is actually paid out in shares of Stock, a participant shall have no rights as a
holder of Stock.
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<PAGE>
(c) Restrictions. An Other Stock-Based Award may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein or in the Award agreement.
(d) Termination. Except as may otherwise be provided by the Administrator
in the Award agreement or, subject to Section 14 below, in writing after the
Award agreement is issued, a participant's right in his Other Stock-Based Awards
that have not vested shall automatically terminate upon the participant's
termination of employment (or cessation of business relationship) with the
Company and its Subsidiaries for any reason.
SECTION 12. TAX WITHHOLDING
---------------
(a) Payment by Participant. Each participant shall, no later than the date
as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Administrator regarding payment of, any Federal, state, or
local taxes of any kind required by law to be withheld with respect to such
income. The Company and its Subsidiaries shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise
due to the participant. The Company's obligation to deliver stock certificates
to any participant is subject to and conditioned on tax obligations being
satisfied by the participant.
(b) Payment in Stock. Subject to approval by the Administrator, a
participant may elect to have the minimum tax withholding obligation satisfied,
in whole or in part, by (i) authorizing the Company to withhold from shares of
Stock to be issued pursuant to any Award a number of shares with an aggregate
Fair Market Value (as of the date the withholding is effected) that would
satisfy the minimum withholding amount due, or (ii) transferring to the Company
shares of Stock owned by the participant with an aggregate Fair Market Value (as
of the date the withholding is effected) that would satisfy the minimum
withholding amount due, or (iii) any combination of (i) and (ii).
SECTION 13. TRANSFER, LEAVE OF ABSENCE, ETC.
-------------------------------
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or from
the Company to a Subsidiary, or from one Subsidiary to another Subsidiary; or
(b) an approved leave of absence for military service or sickness, or for
any other purpose approved by the Company, if the employee's right to re-
employment is guaranteed either by a statute or by contract or under the written
policy pursuant to which the leave of absence was granted or if the
Administrator otherwise so provides in writing.
15
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SECTION 14. AMENDMENTS AND TERMINATION
--------------------------
The Administrator may, at any time, amend or discontinue the Plan and the
Administrator may, at any time, amend or cancel any outstanding Award for the
purpose of satisfying changes in law or for any other lawful purpose, but no
such action shall adversely affect rights under any outstanding Award without
the holder's written consent. Except as provided in Section 3(b) or 3(c), in no
event may the Administrator exercise its discretion to reduce the exercise price
of outstanding Stock Options or effect repricing through cancellation and re-
grants. If and to the extent determined by the Administrator to be required by
the Code to ensure that Incentive Stock Options granted under the Plan are
qualified under Section 422 of the Code or ensure that compensation earned under
Stock Options granted under the Plan qualifies as performance-based compensation
under Section 162(m) of the Code, if and to the extent intended to so qualify,
Plan amendments shall be subject to approval by the Company stockholders
entitled to vote at a meeting of stockholders. Nothing in this Section 14 shall
limit the Board's authority to take any action permitted pursuant to Section
3(c).
SECTION 15. STATUS OF PLAN
--------------
Unless the Administrator shall otherwise expressly determine in writing,
with respect to the portion of any Award which has not been exercised and any
payments in cash, Stock or other consideration not received by a participant, a
participant shall have no rights greater than those of a general creditor of the
Company. In its sole discretion, the Administrator may authorize the creation
of trusts or other arrangements to meet the Company's obligations to deliver
Stock or make payments with respect to Awards hereunder, provided that the
existence of such trusts or other arrangements is consistent with the foregoing
sentence.
SECTION 16. CHANGE OF CONTROL PROVISIONS
----------------------------
(a) Upon the occurrence of a Change of Control as defined in this Section
16, all outstanding Options shall become immediately exercisable in full, and
all other Awards under the Plan shall become fully vested.
(b) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) any "person," as such term is used in Sections 13(d) and 14(d) of
the Act (other than the Company, any of its Subsidiaries, Mortimer B.
Zuckerman, Edward H. Linde, any "affiliate" or "associate" (as such terms
are defined in Rule 12b-2 under the Act) of Mortimer B. Zuckerman or Edward
H. Linde, or any trustee, fiduciary or other person or entity holding
securities under any employee benefit plan or trust of the Company or any
of its Subsidiaries), together with all "affiliates" and "associates" (as
such terms are defined in Rule 12b-2 under the Act) of such person, shall
become the "beneficial owner" (as such term is defined in Rule 13d-3 under
the Act), directly or indirectly, of securities of the Company representing
25 percent or
16
<PAGE>
more of the combined voting power of the Company's then outstanding
securities having the right to vote in an election of the Company's Board
of Directors ("Voting Securities") (other than as a result of an
acquisition of securities directly from the Company); provided that for
purposes of determining the "beneficial ownership" (as such term is defined
in Rule 13d-3 under the Act) of any "group" of which Mortimer B. Zuckerman,
Edward H. Linde or any of their affiliates or associates is a member (each
such entity or individual, a "Related Party"), there shall not be
attributed to the "beneficial ownership" (as such term is defined in Rule
13d-3 under the Act) of such group any shares beneficially owned by any
Related Party; or
(ii) persons who, as of the effective date of the Company's initial
public offering of Stock, constitute the Company's Board of Directors (the
"Incumbent Directors") cease for any reason, including, without limitation,
as a result of a tender offer, proxy contest, merger or similar
transaction, to constitute at least a majority of the Board, provided that
any person becoming a director of the Company subsequent to such date shall
be considered an Incumbent Director if such person's election was approved
by or such person was nominated for election by either (A) a vote of at
least two-thirds of the Incumbent Directors or (B) a vote of at least a
majority of the Incumbent Directors who are members of a nominating
committee comprised, in the majority, of Incumbent Directors; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company where the stockholders of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, "beneficially own" (as such
term is defined in Rule 13d-3 under the Act), directly or indirectly,
shares representing in the aggregate 60 percent or more of the voting
shares of the corporation issuing cash or securities in the consolidation
or merger (or of its ultimate parent corporation, if any), (B) any sale,
lease, exchange or other transfer to an unrelated party (in one transaction
or a series of transactions contemplated or arranged by any party as a
single plan) of all or substantially all of the assets of the Company or
(C) any plan or proposal for the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be deemed to
have occurred for purposes of the foregoing clause (i) solely as the result of
an acquisition of securities by the Company which, by reducing the number of
shares of Voting Securities outstanding, increases the proportionate number of
shares of Voting Securities beneficially owned by any person (as defined in the
foregoing clause (i)) to 25 percent or more of the combined voting power of all
then outstanding Voting Securities; provided, however, that if such person shall
thereafter become the beneficial owner of any additional shares of Voting
Securities (other than pursuant to a stock split, stock dividend, or similar
transaction or as a result of an acquisition of securities directly from the
Company), then a "Change of Control" shall be deemed to have occurred for
purposes of the foregoing clause (i).
17
<PAGE>
SECTION 17. GENERAL PROVISIONS
------------------
(a) No Distribution; Compliance with Legal Requirements. The Administrator
may require each person acquiring Stock pursuant to an Award to represent to and
agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange or similar
requirements have been satisfied. The Administrator may require the placing of
such stop-orders and restrictive legends on certificates for Stock and Awards as
it deems appropriate.
(b) Delivery of Stock Certificates. Stock certificates to be delivered to
participants under this Plan shall be deemed delivered for all purposes when the
Company or a stock transfer agent of the Company shall have mailed such
certificates in the United States mail, addressed to the participant, at the
participant's last known address on file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of this
Plan and the grant of Awards shall not confer upon any employee any right to
continued employment with the Company or any Subsidiary and shall not interfere
in any way with the right of the Company or any Subsidiary to terminate the
employment of any of its employees at any time.
(d) Trading Policy Restrictions. Option exercises and other Awards under
the Plan shall be subject to such Company insider-trading-policy-related
restrictions, terms and conditions as may be established by the Administrator,
or in accordance with policies set by the Administrator, from time to time.
SECTION 18. EFFECTIVE DATE OF PLAN
----------------------
This Plan became effective on June 11, 1997.
SECTION 19. GOVERNING LAW
-------------
This Plan and all Awards and actions taken thereunder shall be governed by,
and construed in accordance with, the laws of the State of Delaware, applied
without regard to conflict of law principles.
18
<PAGE>
DATE OF APPROVAL OF INITIAL PLAN BY BOARD OF DIRECTORS: June 11, 1997
DATE OF APPROVAL BY STOCKHOLDERS: June 11, 1997
DATE OF APPROVAL OF AMENDED AND RESTATED PLAN
BY COMPENSATION COMMITTEE OF THE BOARD: January 24, 2000
DATE OF APPROVAL OF AMENDED AND RESTATED PLAN BY SHAREHOLDERS: May 3, 2000.
19
<PAGE>
BOSTON PROPERTIES, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Pursuant to the Boston Properties, Inc. 1997 Stock Option and Incentive
Plan (the "Plan"), Boston Properties, Inc. (the "Company") hereby grants to
(the "Optionee"), a non-qualified stock option (the "Stock Option") to purchase
shares of Common Stock of the Company (the "Stock") at the price of $_____ per
share, subject to the terms of this Agreement and the Plan. The Stock Option is
granted as of the "Grant Date") and shall expire on (the
"Expiration Date"). All terms used herein that are defined in the Plan shall
have the same meaning given them in the Plan.
1. Timing of Exercise. Subject to Section 2 below and the discretion of
the Administrator to accelerate the vesting schedule hereunder, the Stock Option
shall become vested and exercisable with respect to the following whole number
of shares according to the timetable set forth below:
Number of Years Percentage of Shares Cumulative Percentage
After Date of Grant Becoming Available for Exercise Available
- ------------------- ------------------------------- ---------
Less than 3 years 0% 0%
At least 3 years 33 1/3% 33 1/3%
At least 4 years 33 1/3% 66 2/3%
5 or more years 33 1/3% 100%
Notwithstanding the foregoing, the Stock Option shall become fully vested
and exercisable for the reasons stated in Sections 2(a), 2(b), 2(c) and 2(d)
below. The Stock Option shall remain exercisable until the Expiration Date,
unless the Stock Option is terminated sooner as provided herein.
2. Termination of Employment. If the Optionee ceases to be an employee of
the Company or Subsidiary, the period within which to exercise the Stock Option
may be subject to earlier termination as set forth below.
(a) Termination Due to Death. If the Optionee ceases to be an
employee due to death, the Stock Option held by the Optionee shall become
fully vested and exercisable and may thereafter be exercised by the
Optionee's beneficiary or legal representative for a period of twelve (12)
months from the date of death, or until the Expiration Date, if earlier.
(b) Termination Due to Disability. If the Optionee ceases to be an
employee as a result of incapacity due to physical or mental illness or
disability which qualifies him to receive benefits under the Company's
long-term disability plan, the Stock Option held by the Optionee shall
become fully vested and exercisable and may thereafter be
<PAGE>
exercised by the Optionee (or Optionee's legal representative if Optionee
is incapacitated) for a period of twelve (12) months from the date of
termination or until the Expiration Date, if earlier.
(c) Termination by the Company without Cause or by Employee for Good
Reason. If the Optionee is terminated by the Company for reasons other
than "Cause" (as defined herein), or if the Optionee terminates for Good
Reason (as defined herein), the Stock Option held by the Optionee shall
become fully vested and exercisable and may thereafter be exercised by the
Optionee for a period of twelve (12) months from the date of termination or
until the Expiration Date, if earlier.
(d) Termination in Connection with a Change of Control. If the
Optionee is terminated by the Company for reasons other than "Cause" (as
defined herein) in connection with a Change of Control, or if the Optionee
terminates employment for "Good Reason" (as defined herein), the Stock
Option held by the Optionee shall become fully vested and exercisable and
may thereafter be exercised by the Optionee for a period of twelve (12)
months from the date of termination or until the Expiration Date, if
earlier. Notwithstanding the foregoing, nothing in this Section 2(d) shall
limit the Board's authority to take any action permitted pursuant to
Section 3(c) of the Plan.
(e) Termination for Cause. If the Optionee ceases to be an employee
for Cause (as defined herein), the Stock Option held by the Optionee shall
immediately terminate and be of no further force and effect.
(f) Other Termination. If the Optionee ceases to be an employee for
any reason other than those stated in Sections 2(a), 2(b), 2(c), 2(d) or
2(e) of this Agreement, the Stock Option held by the Optionee may be
exercised to the extent exercisable at the time of his or her termination,
for a period of three (3) months from the date of termination or until the
Expiration Date, if earlier. The remaining portion of the Stock Option
held by the Optionee shall immediately terminate and be of no further force
and effect.
For this purpose, neither a transfer of employment from the Company to a
Subsidiary (or from a Subsidiary to the Company) nor a leave of absence approved
in writing shall be deemed a "termination of employment."
3. Manner of Exercise. Subject to Section 5 below, the Stock Option may
be exercised in whole or in part by giving written notice of exercise to the
Company specifying the number of shares of Stock to be purchased. Payment of
the purchase price may be made by one or more of the following methods:
(a) In cash, by certified or bank check or other instrument acceptable
to the Administrator;
2
<PAGE>
(b) In the form of shares of Stock that the Optionee has beneficially
owned for more than six months and that are not then subject to
restrictions under any Company plan. Such surrendered shares shall be
valued at Fair Market Value on the exercise date; or
(c) By the Optionee delivering to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and acceptable to
the Company to pay the purchase price; provided that in the event the
Optionee chooses to pay the purchase price as so provided, the Optionee and
the broker shall comply with such procedures and enter into such agreements
of indemnity and other agreements as the Administrator shall prescribe as a
condition of such payment procedure.
Payment instruments will be received subject to collection. The delivery of
certificates representing the shares of Stock to be purchased pursuant to the
exercise of a Stock Option will be contingent upon receipt from the Optionee (or
a purchaser acting in the Optionee's stead in accordance with the provisions
contained in the Plan or this Agreement) by the Company of the full purchase
price for such shares and any required withholding taxes, and the fulfillment of
any other requirements contained in the Plan, this Agreement or applicable
provisions of law.
4. Definitions. For purposes of this Agreement:
(a) "Cause" shall mean: (A) gross negligence or willful misconduct
by Optionee in connection with the performance of his or her material
duties as an employee of the Company or any Subsidiary; (B) a breach by
Optionee of any of his or her material duties as an employee of the Company
or any Subsidiary and the failure of Optionee to cure such breach within
thirty (30) days after written notice thereof by the Company or any
Subsidiary; (C) conduct by Optionee against the material best interests of
the Company or any Subsidiary or a material act of common law fraud against
the Company, any Subsidiary or the employees of either the Company or any
Subsidiary; or (D) conviction of Optionee of a felony and such conviction
has a material adverse effect on the interests or reputation of the Company
or any Subsidiary.
(b) "Good Reason" shall mean the voluntary termination of employment
by Optionee following the occurrence of any of the following events: (A) a
substantial adverse change, not consented to by Optionee, in the nature or
scope of Optionee's responsibilities, authorities, powers, functions or
duties from the responsibilities, authorities, powers, functions or duties
exercised by Optionee immediately prior to a Change of Control; (B) an
involuntary reduction in Optionee's annual base salary except for across-
the-board salary reduction similarly affecting all or substantially all
employees; (C) the relocation of the company's offices at which Optionee is
principally employed or the relocation of the offices of Optionee's primary
workgroup to a location more than thirty (30) miles from such offices, or
the requirement by the Company for Optionee to be based anywhere other than
the Company's offices at such location on an extended basis,
except for required travel of the Company's business to an extent
substantially consistent
3
<PAGE>
with Optionee's business travel obligations; or (D) the failure by the
Company to pay the Optionee any portion of his compensation within fifteen
(15) days of the date such compensation is due without the prior written
consent of the Optionee.
5. Trading Policy Restrictions. Option exercises shall be subject to such
Company trading-policy-related restrictions, terms and conditions as may be
established by the Administrator, or in accordance with policies set by the
Administrator, from time to time.
6. The Stock Option Transferable in Limited Circumstances. Subject to
prior written notification to the Company by the Optionee, the Stock Option may
be transferred to a family member, a trust for the benefit of one or more family
members or a partnership in which family members are the only partners;
provided, however, that the transferee agrees in writing with the Company to be
bound by the terms of this Agreement and the Plan. Except as permitted in the
preceding sentence, the Stock Option is not transferable otherwise than by will
or by the laws of descent and distribution, and shall be exercisable during the
Optionee's lifetime only by the Optionee.
7. Stock Option Shares. The shares to be issued under the Plan are shares
of the Common Stock of the Company as constituted as of the date of this
Agreement, subject to adjustments pursuant to Section 3 of the Plan.
8. Rights as a Stockholder. The Optionee shall have the rights of a
stockholder only as to shares of Stock acquired upon exercise of the Stock
Option and not as to any shares of Stock covered by unexercised Stock Options.
No adjustment shall be made for dividends or other rights for which the record
date is prior to the date such shares are acquired.
9. Tax Withholding. No later than the date on which part or all of the
value of any shares of Stock received under the Plan first becomes includible in
the Optionee's gross income for Federal income tax purposes, the Optionee shall
make arrangements with the Administrator in accordance with Section 12 of the
Plan regarding the payment of any federal, state or local taxes required to be
withheld with respect to such income. Such payment may be either in cash or in
Stock, subject to approval by the Administrator.
10. Tax Status. The Stock Option is not intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code of 1986,
as amended.
11. The Plan. The Stock Option is subject in all respects to the terms,
conditions, limitations and definitions contained in the Plan. In the event of
any discrepancy or inconsistency between this Agreement and the Plan, the terms
and conditions of the Plan shall control.
12. No Obligation to Exercise Stock Option. The grant and acceptance of
the Stock Option imposes no obligation on the Optionee to exercise it.
4
<PAGE>
13. No Obligation to Continue Employment. Neither the Company nor any
Subsidiary is obligated by or as a result of the Plan or this Agreement to
continue the Optionee in employment and neither the Plan nor this Agreement
shall interfere in any way with the right of the Company or any Subsidiary to
terminate the employment of the Optionee at any time.
14. Notices. Notices hereunder shall be mailed or delivered to the
Company at its principal place of business and shall be mailed or delivered to
the Optionee at the address on file with the Company or, in either case, at such
other address as one party may subsequently furnish to the other party in
writing.
15. Purchase Only for Investment. To insure the Company's compliance with
the Securities Act of 1933, as amended, the Optionee agrees for himself or
herself, the Optionee's legal representatives and estate, or other persons who
acquire the right to exercise the Stock Option upon his or her death, that
shares will be purchased in the exercise of the Stock Option for investment
purposes only and not with a view to their distribution, as that term is used in
the Securities Act of 1933, as amended, unless in the opinion of counsel to the
Company such distribution is in compliance with or exempt from the registration
and prospectus requirements of that Act.
16. Governing Law. This Agreement and the Stock Option shall be governed
by, and construed in accordance with, the laws of the State of Delaware, applied
without regard to conflict of law principles.
17. Beneficiary Designation. The Optionee hereby designates the following
person(s) as the Optionee's beneficiary(ies) to whom shall be transferred any
rights under the Stock Option which survive the Optionee's death. If the
Optionee names more than one primary beneficiary and one or more of such primary
beneficiaries die, the deceased primary beneficiary's interest will be
apportioned among any surviving primary beneficiaries before any contingent
beneficiary receives any amount, unless the Optionee indicates otherwise in a
signed and dated additional page. The same rule shall apply within the category
of contingent beneficiaries. Unless the Optionee has specified otherwise
herein, any rights which survive the Optionee's death will be divided equally
among the Optionee's primary beneficiaries or contingent beneficiaries, as the
case may be. If no beneficiary survives the Optionee or there is no effective
beneficiary designation, the Optionee's estate shall be deemed to be his or her
beneficiary.
5
<PAGE>
PRIMARY BENEFICIARY(IES)
(Please Print)
Name Relationship % Address
(a)
----------------------- ------------ --------- ------------------------
(b)
----------------------- ------------ --------- ------------------------
(c)
----------------------- ------------ --------- ------------------------
CONTINGENT BENEFICIARY(IES)
(Please Print)
Name Relationship % Address
(a)
----------------------- ------------ --------- ------------------------
(b)
----------------------- ------------ --------- ------------------------
(c)
----------------------- ------------ --------- ------------------------
BOSTON PROPERTIES, INC.
By:
-------------------------------
Title:
----------------------------
The undersigned hereby acknowledges receipt of the foregoing Stock Option
and agrees to its terms and conditions:
-------------------------------------
Optionee
-------------------------------------
Date
6
<PAGE>
BOSTON PROPERTIES, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Pursuant to the Boston Properties, Inc. 1997 Stock Option and Incentive
Plan (the "Plan"), Boston Properties, Inc. (the "Company") hereby grants to
(the "Optionee"), a non-qualified stock option (the "Stock Option") to purchase
shares of Common Stock of the Company (the "Stock") at the price of $_____ per
share, subject to the terms of this Agreement and the Plan. The Stock Option is
granted as of the "Grant Date") and shall expire on (the
"Expiration Date"). All terms used herein that are defined in the Plan shall
have the same meaning given them in the Plan.
1. Timing of Exercise. Subject to Section 2 below and the discretion of
the Administrator to accelerate the vesting schedule hereunder, the Stock Option
shall become vested and exercisable with respect to the following whole number
of shares according to the timetable set forth below:
Number of Years Percentage of Shares Cumulative Percentage
After Date of Grant Becoming Available for Exercise Available
- ------------------- ------------------------------- ---------------------
Less than 3 years 0% 0%
At least 3 years 33 1/3% 33 1/3%
At least 4 years 33 1/3% 66 2/3%
5 or more years 33 1/3% 100%
Notwithstanding the foregoing, the Stock Option shall become fully vested
and exercisable for the reasons stated in Sections 2(a), 2(b), 2(c) and 2(d)
below. The Stock Option shall remain exercisable until the Expiration Date,
unless the Stock Option is terminated sooner as provided herein.
2. Termination of Employment. If the Optionee ceases to be an employee of
the Company or Subsidiary, the period within which to exercise the Stock Option
may be subject to earlier termination as set forth below.
(a) Termination Due to Death. If the Optionee ceases to be an
employee due to death, the Stock Option held by the Optionee shall become
fully vested and exercisable and may thereafter be exercised by the
Optionee's beneficiary or legal representative for a period of twelve (12)
months from the date of death, or until the Expiration Date, if earlier.
(b) Termination Due to Disability. If the Optionee ceases to be an
employee as a result of incapacity due to physical or mental illness or
disability which qualifies him to receive benefits under the Company's
long-term disability plan, the Stock Option held by the Optionee shall
become fully vested and exercisable and may thereafter be
<PAGE>
exercised by the Optionee (or Optionee's legal representative if Optionee
is incapacitated) for a period of twelve (12) months from the date of
termination or until the Expiration Date, if earlier.
(c) Termination by the Company without Cause or by Employee for Good
Reason. If the Optionee is terminated by the Company for reasons other
than "Cause" (as defined herein), or if the Optionee terminates for Good
Reason (as defined in the Employment Agreement dated June 14, 1997, between
the Company and the Optionee), the Stock Option held by the Optionee shall
become fully vested and exercisable and may thereafter be exercised by the
Optionee for a period of twelve (12) months from the date of termination or
until the Expiration Date, if earlier
(d) Termination in Connection with a Change of Control. If the
Optionee is terminated by the Company for reasons other than "Cause" (as
defined herein) in connection with a Change of Control, or if the Optionee
terminates employment for "Good Reason" (as defined herein), the Stock
Option held by the Optionee shall become fully vested and exercisable and
may thereafter be exercised by the Optionee for a period of twelve (12)
months from the date of termination or until the Expiration Date, if
earlier. Notwithstanding the foregoing, nothing in this Section 2(d) shall
limit the Board's authority to take any action permitted pursuant to
Section 3(c) of the Plan.
(e) Termination for Cause. If the Optionee ceases to be an employee
for Cause (as defined herein), the Stock Option held by the Optionee shall
immediately terminate and be of no further force and effect.
(f) Other Termination. If the Optionee ceases to be an employee for
any reason other than those stated in Sections 2(a), 2(b), 2(c), 2(d) or
2(e) of this Agreement, the Stock Option held by the Optionee may be
exercised to the extent exercisable at the time of his or her termination,
for a period of three (3) months from the date of termination or until the
Expiration Date, if earlier. The remaining portion of the Stock Option
held by the Optionee shall immediately terminate and be of no further force
and effect.
For this purpose, neither a transfer of employment from the Company to a
Subsidiary (or from a Subsidiary to the Company) nor a leave of absence approved
in writing shall be deemed a "termination of employment."
3. Manner of Exercise. Subject to Section 5 below, the Stock Option may
be exercised in whole or in part by giving written notice of exercise to the
Company specifying the number of shares of Stock to be purchased. Payment of
the purchase price may be made by one or more of the following methods:
(a) In cash, by certified or bank check or other instrument acceptable
to the Administrator;
2
<PAGE>
(b) In the form of shares of Stock that the Optionee has beneficially
owned for more than six months and that are not then subject to
restrictions under any Company plan. Such surrendered shares shall be
valued at Fair Market Value on the exercise date; or
(c) By the Optionee delivering to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and acceptable to
the Company to pay the purchase price; provided that in the event the
Optionee chooses to pay the purchase price as so provided, the Optionee and
the broker shall comply with such procedures and enter into such agreements
of indemnity and other agreements as the Administrator shall prescribe as a
condition of such payment procedure.
Payment instruments will be received subject to collection. The delivery
of certificates representing the shares of Stock to be purchased pursuant to the
exercise of a Stock Option will be contingent upon receipt from the Optionee (or
a purchaser acting in the Optionee's stead in accordance with the provisions
contained in the Plan or this Agreement) by the Company of the full purchase
price for such shares and any required withholding taxes, and the fulfillment of
any other requirements contained in the Plan, this Agreement or applicable
provisions of law.
4. Definitions. For purposes of this Agreement:
(a) "Cause" shall mean: (A) gross negligence or willful misconduct
by Optionee in connection with the performance of his or her material
duties as an employee of the Company or any Subsidiary; (B) a breach by
Optionee of any of his or her material duties as an employee of the Company
or any Subsidiary and the failure of Optionee to cure such breach within
thirty (30) days after written notice thereof by the Company or any
Subsidiary; (C) conduct by Optionee against the material best interests of
the Company or any Subsidiary or a material act of common law fraud against
the Company, any Subsidiary or the employees of either the Company or any
Subsidiary; or (D) conviction of Optionee of a felony and such conviction
has a material adverse effect on the interests or reputation of the Company
or any Subsidiary.
(b) "Good Reason" shall mean the voluntary termination of employment
by Optionee following the occurrence of any of the following events: (A) a
substantial adverse change, not consented to by Optionee, in the nature or
scope of Optionee's responsibilities, authorities, powers, functions or
duties from the responsibilities, authorities, powers, functions or duties
exercised by Optionee immediately prior to a Change of Control; (B) an
involuntary reduction in Optionee's annual base salary except for across-
the-board salary reduction similarly affecting all or substantially all
employees; (C) the relocation of the company's offices at which Optionee is
principally employed or the relocation of the offices of Optionee's primary
workgroup to a location more than thirty (30) miles from such offices, or
the requirement by the Company for Optionee to be based anywhere other than
the Company's offices at such location on an extended basis,
3
<PAGE>
except for required travel of the Company's business to an extent
substantially consistent with Optionee's business travel obligations; or
(D) the failure by the Company to pay the Optionee any portion of his
compensation within fifteen (15) days of the date such compensation is due
without the prior written consent of the Optionee.
5. Trading Policy Restrictions. Option exercises shall be subject to such
Company trading-policy-related restrictions, terms and conditions as may be
established by the Administrator, or in accordance with policies set by the
Administrator, from time to time.
6. The Stock Option Transferable in Limited Circumstances. Subject to
prior written notification to the Company by the Optionee, the Stock Option may
be transferred to a family member, a trust for the benefit of one or more family
members or a partnership in which family members are the only partners;
provided, however, that the transferee agrees in writing with the Company to be
bound by the terms of this Agreement and the Plan. Except as permitted in the
preceding sentence, the Stock Option is not transferable otherwise than by will
or by the laws of descent and distribution, and shall be exercisable during the
Optionee's lifetime only by the Optionee.
7. Stock Option Shares. The shares to be issued under the Plan are shares
of the Common Stock of the Company as constituted as of the date of this
Agreement, subject to adjustments pursuant to Section 3 of the Plan.
8. Rights as a Stockholder. The Optionee shall have the rights of a
stockholder only as to shares of Stock acquired upon exercise of the Stock
Option and not as to any shares of Stock covered by unexercised Stock Options.
No adjustment shall be made for dividends or other rights for which the record
date is prior to the date such shares are acquired.
9. Tax Withholding. No later than the date on which part or all of the
value of any shares of Stock received under the Plan first becomes includible in
the Optionee's gross income for Federal income tax purposes, the Optionee shall
make arrangements with the Administrator in accordance with Section 12 of the
Plan regarding the payment of any federal, state or local taxes required to be
withheld with respect to such income. Such payment may be either in cash or in
Stock, subject to approval by the Administrator.
10. Tax Status. The Stock Option is not intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code of 1986,
as amended.
11. The Plan. The Stock Option is subject in all respects to the terms,
conditions, limitations and definitions contained in the Plan. In the event of
any discrepancy or inconsistency between this Agreement and the Plan, the terms
and conditions of the Plan shall control.
12. No Obligation to Exercise Stock Option. The grant and acceptance of
the Stock Option imposes no obligation on the Optionee to exercise it.
4
<PAGE>
13. No Obligation to Continue Employment. Neither the Company nor any
Subsidiary is obligated by or as a result of the Plan or this Agreement to
continue the Optionee in employment and neither the Plan nor this Agreement
shall interfere in any way with the right of the Company or any Subsidiary to
terminate the employment of the Optionee at any time.
14. Notices. Notices hereunder shall be mailed or delivered to the
Company at its principal place of business and shall be mailed or delivered to
the Optionee at the address on file with the Company or, in either case, at such
other address as one party may subsequently furnish to the other party in
writing.
15. Purchase Only for Investment. To insure the Company's compliance with
the Securities Act of 1933, as amended, the Optionee agrees for himself or
herself, the Optionee's legal representatives and estate, or other persons who
acquire the right to exercise the Stock Option upon his or her death, that
shares will be purchased in the exercise of the Stock Option for investment
purposes only and not with a view to their distribution, as that term is used in
the Securities Act of 1933, as amended, unless in the opinion of counsel to the
Company such distribution is in compliance with or exempt from the registration
and prospectus requirements of that Act.
16. Governing Law. This Agreement and the Stock Option shall be governed
by, and construed in accordance with, the laws of the State of Delaware, applied
without regard to conflict of law principles.
17. Beneficiary Designation. The Optionee hereby designates the following
person(s) as the Optionee's beneficiary(ies) to whom shall be transferred any
rights under the Stock Option which survive the Optionee's death. If the
Optionee names more than one primary beneficiary and one or more of such primary
beneficiaries die, the deceased primary beneficiary's interest will be
apportioned among any surviving primary beneficiaries before any contingent
beneficiary receives any amount, unless the Optionee indicates otherwise in a
signed and dated additional page. The same rule shall apply within the category
of contingent beneficiaries. Unless the Optionee has specified otherwise
herein, any rights which survive the Optionee's death will be divided equally
among the Optionee's primary beneficiaries or contingent beneficiaries, as the
case may be. If no beneficiary survives the Optionee or there is no effective
beneficiary designation, the Optionee's estate shall be deemed to be his or her
beneficiary.
5
<PAGE>
PRIMARY BENEFICIARY(IES)
(Please Print)
Name Relationship % Address
(a)
-------------------------- -------- ------ ---------------------------
(b)
-------------------------- -------- ------ ---------------------------
(c)
-------------------------- -------- ------ ---------------------------
CONTINGENT BENEFICIARY(IES)
(Please Print)
Name Relationship % Address
(a)
-------------------------- -------- ------ ---------------------------
(b)
-------------------------- -------- ------ ---------------------------
(c)
-------------------------- -------- ------ ---------------------------
BOSTON PROPERTIES, INC.
By:
--------------------------------
Title: Vice President
-----------------------------
The undersigned hereby acknowledges receipt of the foregoing Stock Option
and agrees to its terms and conditions:
------------------------------------
Optionee
------------------------------------
Date
6
<PAGE>
BOSTON PROPERTIES, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Pursuant to the Boston Properties, Inc. 1997 Stock Option and Incentive
Plan (the "Plan"), Boston Properties, Inc. (the "Company") hereby grants to (the
"Optionee"), a non-qualified stock option (the "Stock Option") to purchase
shares of Common Stock of the Company (the "Stock") at the price of $ per share,
subject to the terms of this Agreement and the Plan. The Stock Option is granted
as of (the "Grant Date") and shall expire on (the "Expiration Date"). All terms
used herein that are defined in the Plan shall have the same meaning given them
in the Plan.
1. Timing of Exercise. Subject to Section 2 below and the discretion of
the Administrator to accelerate the vesting schedule hereunder, the Stock Option
shall become vested and exercisable with respect to the following whole number
of shares according to the timetable set forth below:
Number of Years Percentage of Shares Cumulative Percentage
After Date of Grant Becoming Available for Exercise Available
Less than 1 year 0% 0%
At least 1 year 33 1/3% 33 1/3%
At least 2 years 33 1/3% 66 2/3%
3 or more years 33 1/3% 100%
Notwithstanding the foregoing, the Stock Option shall become fully vested
and exercisable when the Optionee attains age 65, dies or becomes incapacitated
(as defined in Section 2(b) below) or upon a Change in Control (as defined in
the Plan) of the Company. The Stock Option shall remain exercisable until the
Expiration Date, unless the Stock Option is terminated sooner as provided
herein.
2. Termination of Employment. If the Optionee ceases to be an employee of
the Company or Subsidiary, the period within which to exercise the Stock Option
may be subject to earlier termination as set forth below.
(a) Termination Due to Death. If the Optionee ceases to be an
employee due to death, the Stock Option held by the Optionee shall become
fully vested and exercisable and may thereafter be exercised by the
Optionee's beneficiary or legal representative for a period of twelve (12)
months from the date of death, or until the Expiration Date, if earlier.
(b) Termination Due to Disability. If the Optionee ceases to be an
employee as a result of incapacity due to physical or mental illness or
disability which qualifies him or her to receive benefits under the
Company's long-term disability plan, the Stock
<PAGE>
Option held by the Optionee shall become fully vested and exercisable and
may thereafter be exercised by the Optionee (or Optionee's legal
representative if Optionee is incapacitated) for a period of twelve (12)
months from the date of termination or until the Expiration Date, if
earlier.
(c) Termination in Connection with Retirement. If the Optionee's
employment terminates by reason of Retirement (as defined in the Plan), the
Stock Option held by the Optionee may be exercised to the extent
exercisable at the time of his or her Retirement, for a period of twenty-
four (24) months from the date of Retirement or until the Expiration Date,
if earlier.
(d) Termination for Cause. If the Optionee ceases to be an employee
for Cause (as defined herein), the Stock Option held by the Optionee shall
immediately terminate and be of no further force and effect.
(e) Other Termination. If the Optionee ceases to be an employee for
any reason other than those stated in Sections 2(a), 2(b), 2(c) or 2(d) of
this Agreement, the Stock Option held by the Optionee may be exercised to
the extent exercisable at the time of his or her termination, for a period
of three (3) months from the date of termination or until the Expiration
Date, if earlier. The remaining portion of the Stock Option held by the
Optionee shall immediately terminate and be of no further force and effect.
For this purpose, neither a transfer of employment from the Company to a
Subsidiary (or from a Subsidiary to the Company) nor a leave of absence approved
in writing shall be deemed a "termination of employment."
3. Manner of Exercise. Subject to Section 5 below, the Stock Option may
be exercised in whole or in part by giving written notice of exercise to the
Company specifying the number of shares of Stock to be purchased. Payment of
the purchase price may be made by one or more of the following methods:
(a) In cash, by certified or bank check or other instrument acceptable
to the Administrator;
(b) In the form of shares of Stock that the Optionee has beneficially
owned for more than six months and that are not then subject to
restrictions under any Company plan. Such surrendered shares shall be
valued at Fair Market Value on the exercise date; or
(c) By the Optionee delivering to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Com