BXP-B Boston Properties Inc

On May 17, 2023, Boston Properties, Inc. (the “Company”) and Boston Properties Limited Partnership, the Company’s operating partnership (the “Partnership”), filed an automatic shelf registration statement on Form (File No. 333-272012) ( “Universal Shelf Statement”) with the Securities and Exchange Commission (the “SEC”) to replace an existing shelf registration statement, which was scheduled to expire on May 22, 2023. In connection with the filing of this new registration statement, the Company also filed two new prospectus supplements. These prospectus supplements relate to (i) the Company’s new $600 million “at the market” equity offering program as described below, which replaced the Company’s prior $600 million “at the market” equity offering program that was scheduled to expire on May 22, 2023, and which is no longer effective, and (ii) the issuance of up to 256,073 shares of common stock of the Company that may be issued from time to time if, and to the extent that, the holders of previously issued common units of limited partnership interest in the Partnership present such units for redemption, which offerings had been covered by the prior registration statement. In addition, on May 17, 2023, the Company filed an automatic shelf registration statement on Form (File with the SEC to replace an existing shelf registration statement relating to its Dividend Reinvestment and Stock Purchase Plan, which was scheduled to expire on May 22, 2023.

In connection with the commencement of the “at the market” equity offering, the Company may sell up to an aggregate of $600 million of shares of its common stock (the “Shares”) from time to time during a period of up to three years in “at the market” equity offerings or certain other transactions (the “Offering”). The Company may sell the Shares in amounts and at times to be determined by the Company from time to time, but has no obligation to sell any of the Shares in the Offering. Actual sales will depend on a variety of factors to be determined by the Company from time to time, including (among others) market conditions, the trading price of the Company’s common stock, capital needs and determinations by the Company of the appropriate sources of funding for the Company.

The Offering will occur pursuant to thirteen separate sales agency financing agreements (each, individually, a “Sales Agreement” and, collectively, the “Sales Agreements”) entered into by the Company with each of BNY Mellon Capital Markets, LLC, BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Jefferies LLC, J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC (and in certain cases, certain of their respective agents or affiliates) for the offer and sale of the Shares. The Company refers to these entities, when acting in their capacity as sales agents for the Company or as principals, each, individually, as a “Sales Agent” and, collectively, as the “Sales Agents,” and when acting in their capacity as agents for the Forward Purchasers (as defined below), each, individually, as a “Forward Seller” and, collectively, as the “Forward Sellers.”

The Sales Agreements contemplate that, in addition to the issuance and sale of the Shares by the Company through or to the Sales Agents, acting as its sales agents or as principals, as applicable, the Company may also engage in forward sale transactions under separate master forward confirmations (collectively, the “Master Forward Confirmations”) and related supplemental confirmations (each, a “Forward Sale Agreement” and, collectively, the “Forward Sale Agreements”), with each of Bank of America, N.A., Citibank, N.A., Deutsche Bank AG, London Branch, Jefferies LLC, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Nomura Global Financial Products, Inc., The Bank of New York Mellon, The Bank of Nova Scotia, The Toronto-Dominion Bank, Truist Bank and Wells Fargo Bank, National Association (when acting in their capacity as purchasers under any forward sale transactions, each, individually, a “Forward Purchaser” and, collectively, the “Forward Purchasers”).

If the Company decides to engage in a forward sale transaction, it will deliver instructions to the relevant Forward Purchaser and Forward Seller to borrow and sell shares of the Company’s common stock. Subject to, among other things, the terms and conditions in the relevant Sales Agreement and the acceptance of such instructions from the Company by the relevant Forward Purchaser and Forward Seller, such Forward Purchaser will use its commercially reasonable efforts to borrow or cause its affiliate to borrow, offer and sell through the relevant Forward Seller, the applicable shares of the Company’s common stock to establish the initial forward sale price under the applicable Forward Sale Agreement. Following such sales, pursuant to the relevant Forward Sale Agreement, the Company generally will have the right during the term of the relevant Forward Sale Agreement to issue and sell to the relevant Forward Purchaser a number of shares of the Company’s common stock equal to the number of borrowed shares that were sold in exchange for the forward sale price or, in the sole discretion of the Company, to cash settle or net share settle the Forward Sale Agreement. At the end of the term of the relevant Forward Sale Agreement, the Company generally will be obligated to issue and sell such shares to the relevant Forward Purchaser for the forward sale price if the Forward Sale Agreement has not been previously settled. The forward price generally is based on the initial forward price, as adjusted on a daily basis based on a floating interest rate factor equal to the overnight bank funding rate less a spread, to be agreed upon by the Company and the Forward Purchaser under the relevant Forward Sale Agreement, and subject to decrease on certain dates specified in the relevant Forward Sale Agreement by the amount per share of quarterly dividends the Company expects to declare on its common stock during the term of the relevant Forward Sale Agreement.

 

Each Sales Agreement has a term of up to three years and provides that the Company may offer and sell from time to time pursuant to the Sales Agreements up to a combined total of $600 million of shares of its common stock during such three-year term through the Sales Agents. The Sales Agreements provide that each Sales Agent will be entitled to compensation that will not exceed, but may be lower than, 2.0% of the gross sales price of all shares sold through it as Sales Agent under the applicable Sales Agreement. In connection with any Forward Sale Agreement, the Company will pay the applicable Forward Seller a commission, in the form of a reduced initial forward sale price under the related Forward Sale Agreement, at a mutually agreed rate not exceeding 2.0% of the volume-weighted average of the sales prices per share of the borrowed shares of the Company’s common stock sold through such Forward Seller during the applicable forward hedge selling period for such transaction (subject to certain adjustments).

Sales of the Shares, if any, pursuant to the Sales Agreements may be made in transactions that are deemed to be “at the market” offerings as defined in Rule 415 under the Securities Act of 1933, as amended, including sales made directly on the New York Stock Exchange or sales made to or through a market maker or through an electronic communications network, as well as in negotiated or other transactions described in the prospectus supplement relating to the Offering, which may include block trades. The Company or any of the Sales Agents may at any time suspend solicitation and offers under the Sales Agreements or terminate the Sales Agreements.

The Shares will be issued pursuant to the prospectus supplement and the Universal Shelf Registration Statement described above. The forms of the Sales Agreements and Master Forward Confirmations are filed as Exhibits 1.1 and 1.2, respectively, to this Current Report on Form The descriptions of the Sales Agreements and Master Forward Confirmations do not purport to be complete and are qualified in their entirety by reference to the forms of the Sales Agreements and Master Forward Confirmations filed herewith as exhibits to this Current Report on Form and incorporated herein by reference.

Opinions of the Company’s counsel, Goodwin Procter LLP, regarding the legality of the shares of common stock covered by the prospectus supplements described above are filed as Exhibits 5.1 and 5.2 hereto and are incorporated herein by reference.

This Current Report on Form shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.