EXHIBIT 99.9
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement"), is made as of July 18, 2000,
among GOProLogis Incorporated, a Delaware corporation (the "Company"), K. Xxxx
Xxxxxxxxx, an individual ("Stockholder"), and ProLogis Trust, a Maryland real
estate investment trust ("ProLogis").
WITNESSETH:
WHEREAS, Stockholder owns all of the outstanding shares of common
stock, $0.01 par value per share (the "Common Stock"), of the Company and
ProLogis owns all of the outstanding shares of preferred stock, $0.01 par value
per share (the "Preferred Stock"), of the Company; and
WHEREAS, Stockholder and ProLogis wish to record their understanding
regarding certain matters relating to rights to acquire securities of the
Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties agree as follows:
ARTICLE I
CALL OPTION
1.1 Call Option. Subject to the terms and conditions in this Article I,
ProLogis shall have the right (the "Call Option"), to purchase all, but not less
than all, of the shares of Common Stock owned by Stockholder. Subject to the
foregoing, the Call Option shall be exercisable at any time from and after
January 1, 2001 and shall be exercised by ProLogis, if at all, by giving
Stockholder written notice of ProLogis' intention to exercise the Call Option.
Upon the closing of the transactions contemplated by an exercise of the Call
Option, ProLogis shall deliver to Stockholder an amount in cash (or by wire
transfer of immediately available funds) equivalent to the sum of (i)
$1,131,224.42 plus (ii) an amount equal to 8% of the amount in clause (i)
calculated like interest on an annual basis from the date hereof until the date
on which the closing of the transactions contemplated by the Call Option occurs.
Upon the closing of the transactions contemplated by an exercise of the Call
Option, Stockholder shall surrender to ProLogis all shares of Common Stock, free
and clear of all liens, claims, charges or encumbrances, duly endorsed for
transfer, then owned by Stockholder. The closing of the transactions upon the
exercise of the Call Option shall occur within 30 days of the exercise thereof.
1.2 Company Obligations. The Company agrees to take such actions as
ProLogis or Stockholder shall reasonably request in order to effect the
transactions contemplated by this Agreement.
ARTICLE II
MISCELLANEOUS
2.1 Notices. Any notice, request, instruction or other document to be
given hereunder by a party hereto shall be in writing and shall be deemed to
have been given, (a) when received if delivered in person or by courier or a
courier service, (b) on the date of transmission if sent by facsimile or other
wire transmission or (c) three days after being deposited in the U.S. mail,
certified or registered mail, postage prepaid, in each case:
(a) if to ProLogis, addressed as follows:
ProLogis Trust
00000 Xxxx 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
(b) if to Stockholder, addressed as follows:
K. Xxxx Xxxxxxxxx
c/o ProLogis Trust
00000 Xxxx 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided. Whenever this Agreement requires
notice to be given, or requires an action to be taken, as of a certain date,
such notice or action shall be deemed to have been timely given or taken if such
notice is given or such action is taken prior to the date called for by the
other provisions of this Agreement.
2.2 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective heirs, legal
representatives, executors, successors and permitted assigns.
2.3 Captions. The captions in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect any provision hereof
or interpretation hereof.
2.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.5 Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
2.6 Assignment. Neither this Agreement nor any right or obligation
hereunder is assignable in whole or in part, whether by operation of law or
otherwise, by any party hereto except with the prior written consent of each of
the other parties; provided, however, that ProLogis may assign all of its rights
and obligations hereunder to one or more of its affiliates.
2.7 Waivers. The failure of any party hereto at any time or times to
require performance of any provision hereof will in no way affect its right at a
later time to require the performance of that provision. No waiver by any party
of any condition or of any breach of any term or condition contained in this
Agreement will be effective unless in writing. No waiver in any one or more
instances will be deemed to be a further or continuing waiver of any condition
or breach in any other instance or waiver of any other condition or breach.
2.8 Specific Performance. The parties acknowledge that monetary damages
will be insufficient for a breach of many of the provisions of this Agreement.
Therefore, each party agrees that, upon a breach of any provision of this
Agreement, the nondefaulting party(ies) may xxx for and obtain an injunction or
specific performance of such provision in any appropriate court.
2.9 Entire Understanding. This Agreement sets forth the entire
agreement and understanding of the parties hereto and supersedes any and all
prior agreements, arrangements and understandings among the parties regarding
the subject matter hereof.
2.10 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
2.11 Amendments. This Agreement may be amended only by written
agreement signed by all of the parties hereto.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered effective as of the date first above written.
PROLOGIS TRUST
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Senior Vice President
/s/ K. Xxxx Xxxxxxxxx
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K. Xxxx Xxxxxxxxx
