FORM OF VOTING AGREEMENT
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”) is entered into as of February 22, 2001 by and among EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate investment trust (“Equity Office”), EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership (“EOP Partnership”), (such person, together with the other signatories hereto (other than Equity Office and EOP Partnership), individually and collectively, the “Xxxxxxx Securityholder”).
WHEREAS, Equity Office, EOP Partnership, Xxxxxxx Properties, Inc., a Maryland corporation (“Xxxxxxx”), and Xxxxxxx Properties, L.P., a California limited partnership (“Xxxxxxx Partnership”), will enter into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), pursuant to which (i) Xxxxxxx Partnership will be merged with and into EOP Partnership (the “Partnership Merger”), with EOP Partnership as the survivor of the Partnership Merger, and (ii) Xxxxxxx will be merged with and into Equity Office (the “Merger” and, together with the Partnership Merger, the “Mergers”), with Equity Office as the survivor of the Merger (all capitalized terms used but not defined herein shall have the meanings set forth in the Merger Agreement);
WHEREAS, the Xxxxxxx Securityholder is the beneficial and record owner of issued and outstanding shares of common stock, par value $.0001 per share, of Xxxxxxx (such shares, together with any shares acquired hereafter, the “Xxxxxxx Common Shares”), as more particularly described on Schedule 1 hereto;
WHEREAS, the Xxxxxxx Securityholder is the beneficial and record owner of options to purchase Xxxxxxx Common Shares (such options, together with any options acquired hereafter, the “Xxxxxxx Options”), as more particularly described on Schedule 1 hereto;
WHEREAS, the Xxxxxxx Securityholder is the beneficial and record owner of issued and outstanding Partnership Units (as defined in the partnership agreement of Xxxxxxx Partnership) of Xxxxxxx Partnership, excluding all Partnership Units allocated to the Xxxxxxx Preferred OP Units (such Partnership Units, together with any units acquired hereafter, the “Xxxxxxx OP Units”), as more particularly described on Schedule 1 hereto; and
WHEREAS, in accordance with the Recitals of the Merger Agreement, the Xxxxxxx Securityholder desires to execute and deliver this Agreement solely in his capacity as a holder of Xxxxxxx Common Shares and Xxxxxxx OP Units;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree, intending to be legally bound hereby, as follows:
| SECTION 1. | Disposition of Xxxxxxx Common Shares and Xxxxxxx OP Units |
During the period from the date hereof through the earlier of (i) the date on which the Merger is consummated or (ii) the date on which the Merger Agreement is terminated according to its terms (such period hereinafter referred to as the “Term”), the Xxxxxxx Securityholder shall not, directly or indirectly, and shall cause each record holder not to, directly or indirectly, (a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other agreement or understanding with respect to the sale, transfer, pledge, encumbrance, assignment or other disposition of, any Xxxxxxx Common Shares, Xxxxxxx Options or Xxxxxxx OP Units (including, without limitation, any exercise of Xxxxxxx Options or redemption of Xxxxxxx OP Units for Xxxxxxx Common Shares pursuant to the partnership agreement of Xxxxxxx Partnership), (b) grant any proxies for any Xxxxxxx Common Shares or Xxxxxxx OP Units with respect to any matters described in paragraphs (a) or (b) of Section 2 hereof (other than a proxy directing the holder thereof to vote
SECTION 2. Voting
(a) During the Term, the Xxxxxxx Securityholder shall cast or cause to be cast all votes attributable to the Xxxxxxx Common Shares at any annual or special meeting of shareholders of Xxxxxxx, including any adjournments or postponements thereof, or in connection with any written consent or other vote of Xxxxxxx shareholders, (i) in favor of adoption of the Merger Agreement and approval of the Merger and the other transactions contemplated by the Merger Agreement and (ii) against approval or adoption of any action or agreement (other than the Merger Agreement or the transactions contemplated thereby) made or taken in opposition to or in competition with the Merger.
(b) During the Term, the Xxxxxxx Securityholder shall cast or cause to be cast all votes attributable to the Xxxxxxx OP Units at any meeting of the partners of Xxxxxxx Partnership at which, and in connection with any written consent or other vote with respect to which, the Xxxxxxx Securityholder is entitled to vote, (i) in favor of adoption of the Merger Agreement and approval of the Mergers and the other transactions contemplated by the Merger Agreement and (ii) against approval or adoption of any action or agreement (other than the Merger Agreement or the transactions contemplated thereby) made or taken in opposition to or in competition with the Merger or the Partnership Merger.
(c) The Xxxxxxx Securityholder will retain the right to vote his Xxxxxxx Common Shares and Xxxxxxx OP Units, in his sole discretion, on all matters other than those described in paragraphs (a) or (b) of this Section 2, and the Xxxxxxx Securityholder may grant proxies and enter into voting agreements or voting trusts for his Xxxxxxx Common Shares and Xxxxxxx OP Units in respect of such other matters.
SECTION 3. Option Tender Offer
The Xxxxxxx Securityholder shall duly and timely irrevocably tender and sell all of his Xxxxxxx Options to Equity Office under the tender offer to be made by Equity Office pursuant to Section 5.8(c) of the Merger Agreement.
SECTION 4. Representations and Warranties of the Xxxxxxx Securityholder
The Xxxxxxx Securityholder represents and warrants to Equity Office and EOP Partnership as follows:
| (a) The Xxxxxxx Securityholder has the legal capacity to execute and deliver this Agreement and to perform his obligations hereunder. | |
| (b) This Agreement has been duly executed and delivered by the Xxxxxxx Securityholder and constitutes a valid and binding obligation of the Xxxxxxx Securityholder enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights and general principles of equity. | |
| (c) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated will not conflict with or violate any court order, judgment or decree applicable to the Xxxxxxx Securityholder, or conflict with or result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under any contract or agreement to |
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| which the Xxxxxxx Securityholder is a party or by which the Xxxxxxx Securityholder is bound or affected, which conflict, violation, breach or default would materially and adversely affect the Xxxxxxx Securityholder’s ability to perform any of his obligations under this Agreement. | |
| (d) Subject to any required filings under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Xxxxxxx Securityholder is not required to give any notice or make any report or other filing with any governmental authority in connection with the execution or delivery of this Agreement or the performance of the Xxxxxxx Securityholder’s obligations hereunder and no waiver, consent, approval or authorization of any governmental or regulatory authority or any other person or entity is required to be obtained by the Xxxxxxx Securityholder for the performance of the Xxxxxxx Securityholder’s obligations hereunder, other than where the failure to make such filings, give such notices or obtain such waivers, consents, approvals or authorizations would not materially and adversely affect the Xxxxxxx Securityholder’s ability to perform his obligations under this Agreement. | |
| (e) The Xxxxxxx Common Shares, Xxxxxxx Options and Xxxxxxx OP Units set forth opposite the name of the Xxxxxxx Securityholder on Schedule 1 hereto are the only Xxxxxxx Common Shares, Xxxxxxx Options and Xxxxxxx OP Units owned beneficially or of record by the Xxxxxxx Securityholder or over which he exercises voting control. |
SECTION 5. Waiver of Dissenters Rights
The Xxxxxxx Securityholder hereby waives any dissenters, appraisal or other similar rights that the Xxxxxxx Securityholder may have under applicable law (including, without limitation, under Section 15679.2 of the California Revised Uniform Limited Partnership Act, as amended) in connection with the Merger Agreement, the Mergers or the other transactions contemplated by the Merger Agreement.
SECTION 6. Further Assurances
During the Term, upon the request of Equity Office, execute and deliver such documents and take such actions as Equity Office may reasonably deem necessary to effectuate the purposes of this Agreement.
SECTION 7. Descriptive Headings
The descriptive headings herein are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
SECTION 8. Counterparts
This Agreement may be executed in counterparts, each of which when so executed and delivered shall be an original, but all of such counterparts shall together constitute one and the same instrument.
SECTION 9. Entire Agreement; Assignment
This Agreement (i) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof and (ii) shall not be assigned by the Xxxxxxx Securityholder, by operation of law or otherwise.
| SECTION 10. | Governing Law; Consent to Jurisdiction; Waiver of Jury Trial |
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland without regard to the principles of conflicts of laws thereof.
(b) The Xxxxxxx Securityholder hereby submits and consents to non-exclusive personal jurisdiction in any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in a federal court located in the State of Maryland or in a Maryland state court. Any process, summons, notice or document delivered by mail to the address set forth on Schedule 1 hereto shall be effective service of process for any action, suit or proceeding in any Maryland state court or any federal court located in the State of
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SECTION 11. Specific Performance
The parties hereto agree that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.
SECTION 12. Parties in Interest
This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or persons any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
SECTION 13. Amendment; Waivers
This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by each of the parties hereto. No delay or failure on the part of any party hereto in exercising any right, power or privilege under this Agreement shall impair any such right, power or privilege or be construed as a waiver of any default or any acquiescence thereto. No single or partial exercise of any such right, power or privilege shall preclude the further exercise of such right, power or privilege, or the exercise of any other right, power or privilege. No waiver shall be valid against any party hereto, unless made in writing and signed by the party against whom enforcement of such waiver is sought, and then only to the extent expressly specified therein.
SECTION 14. Capacity of Xxxxxxx Securityholder
The Xxxxxxx Securityholder has executed this Agreement solely in his capacity as a securityholder of Xxxxxxx or Xxxxxxx Partnership and not in his capacity as an officer, director, employee or manager of Xxxxxxx or Xxxxxxx Partnership. Without limiting the foregoing, nothing in this Agreement shall limit or affect any actions taken by the Xxxxxxx Securityholder in his capacity as an officer, director, employee or manager of Xxxxxxx or Xxxxxxx Partnership in connection with the exercise of Xxxxxxx’x or Xxxxxxx Partnership’s rights under the Merger Agreement.
SECTION 15. Termination
This Agreement shall terminate immediately upon the earlier of (i) the date on which the Merger Agreement is terminated in accordance with its terms or (ii) the consummation of the Merger. None of the representations, warranties, covenants or agreements in this Agreement shall survive the termination of this Agreement; provided, however, that nothing contained herein shall release the Xxxxxxx Securityholder from any liability arising from any breach of any of his representations, warranties, covenants or agreements in this Agreement.
(signatures appear on next page)
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Voting Agreement, or have caused this Voting Agreement to be duly executed and delivered in their names and on their behalf, as of the date first written above.
| EQUITY OFFICE PROPERTIES TRUST |
| By: |
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| Name: | |
| Title: | |
| EOP OPERATING LIMITED PARTNERSHIP |
| By: | Equity Office Properties Trust, |
| its general partner |
| By: |
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| Name: | |
| Title: | |
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| [Xxxxxxx Securityholder] |
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Schedule 1
| # of Xxxxxxx | Terms | |||||||||||||||||||
| Name of Record and | Common | # of Xxxxxxx | # of Xxxxxxx | of | ||||||||||||||||
| Beneficial Owner | Shares | Options | OP Units | Pledgee | Pledge | |||||||||||||||
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TOTAL
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Any process, summons, notice or document delivered by mail pursuant to Section 10 hereof to the beneficial or record holder set forth on this Schedule 1, shall be delivered to:
Xxxxxxx Properties, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
| Attention: |
Xxxxx X. Xxxxxx, Co-Chief Executive Officer Xxxx X. Xxxxxx, Senior Vice President, General Counsel |
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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