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EXHIBIT 3
VOTING AGREEMENT
(XXXXXX XXXX)
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into as of
February 11, 2000 by and among Cornerstone Properties Inc, a Nevada corporation
("CORNERSTONE"), Cornerstone Properties Limited Partnership, a Delaware limited
partnership ("CORNERSTONE PARTNERSHIP"), and Xxxxxx Xxxx (such person, together
with the other signatories hereto (other than Cornerstone and Cornerstone
Partnership), individually and collectively, the "EQUITY OFFICE
SECURITYHOLDER").
WHEREAS, Cornerstone, Cornerstone Partnership, Equity Office
Properties Trust, a Maryland real estate investment trust ("EQUITY OFFICE") and
EOP Operating Limited Partnership, a Delaware limited partnership ("EOP
Partnership") will enter into an Agreement and Plan of Merger dated as of the
date hereof (the "MERGER AGREEMENT"), pursuant to which (i) Cornerstone
Partnership will be merged with and into EOP Partnership (the "PARTNERSHIP
MERGER"), with EOP Partnership as the survivor of the Partnership Merger, and
(ii) Cornerstone will be merged with and into Equity Office (the "MERGER"), 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 Equity Office Securityholder is the beneficial
and record owner of 1,546,001 issued and outstanding shares of common stock,
$0.01 par value per share, of Equity Office (such shares, together with any
shares acquired hereafter, the "EQUITY OFFICE COMMON SHARES"), as more
particularly described on Schedule 1;
WHEREAS, the Equity Office Securityholder is the beneficial
and record owner of 11,701,076 issued and outstanding units of limited
partnership interest in EOP Partnership (such units, together with any units
acquired hereafter, the "EOP OP UNITS") as more particularly described on
Schedule 1; and
WHEREAS, in accordance with the Recitals of the Merger
Agreement, the Equity Office Securityholder desires to execute and deliver this
Agreement solely in its capacity as a holder of Equity Office Common Shares and
EOP 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 as follows:
SECTION 1. DISPOSITION OF EQUITY OFFICE COMMON SHARES AND EOP OP UNITS
During the period from the date hereof through the earlier of
(i) the date on which the Merger is consummated or (ii) 30 days after the date
on which the Merger Agreement is terminated according to its terms (such period
hereinafter referred to as the "TERM"), the Equity Office 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
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disposition of, any Equity Office Common Shares or EOP OP Units (except for
redemptions of EOP OP Units for Equity Office Common Shares pursuant to the
partnership agreement of EOP Partnership), (b) grant any proxies for any Equity
Office Common Shares or EOP 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 the Equity Office Common Shares or the EOP OP Units in a
manner required by paragraphs (a) and (b) of Section 2 hereof), (c) deposit any
Equity Office Common Shares or EOP OP Units into a voting trust or enter into a
voting agreement with respect to any Equity Office Common Shares or EOP OP Units
with respect to any of the matters described in paragraphs (a) or (b) of Section
2 hereof, or tender any Equity Office Common Shares or EOP OP Units in a
transaction other than a transaction contemplated by the Merger Agreement, or
(d) take any action which is intended to have the effect of preventing or
disabling the Equity Office Securityholder from performing its obligations under
this Agreement; provided, however, that nothing herein shall prevent the sale,
transfer, pledge, encumbrance, assignment or other disposition of any of such
Equity Office Common Shares or EOP OP Units, either (i) provided that the
purchaser, transferee, pledgee or assignee thereof agrees in writing to be bound
by the terms of this Agreement, or (ii) in connection with the replacement or
substitution of an existing pledge thereof (whether or not the pledgee agrees to
be bound by this Agreement). Cornerstone and Cornerstone Partnership each
acknowledges the existence of pledges made by Equity Office Securityholder that
are currently in place and that such pledges (and any replacements thereof or
substitutions therefor) do not and will not violate the terms hereof.
SECTION 2. VOTING
(a) During the Term, the Equity Office Securityholder shall
cast or cause to be cast all votes attributable to the Equity Office Common
Shares, at any annual or special meeting of shareholders of Equity Office,
including any adjournments or postponements thereof, or in connection with any
written consent or other vote of Equity Office shareholders, (i) in favor of
adoption of the Merger Agreement and approval of the Merger and the other
transactions contemplated by the Merger Agreement (including any amendments or
modifications of the terms of the Merger Agreement approved by the board of
trustees of Equity Office that would not materially adversely affect the Equity
Office Securityholder in its capacity as beneficial owner of Equity Office
Common Stock or EOP OP Units) 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 Equity Office Securityholder shall
cast or cause to be cast all votes attributable to the EOP OP Units at any
meeting of the partners of EOP Partnership at which, and in connection with any
written consent or other vote with respect to which, the Equity Office
Securityholder is entitled to vote, (i) in favor of adoption of the Merger
Agreement and approval of the Merger, the Partnership Merger and the other
transactions contemplated by the Merger Agreement (including any amendments or
modifications of the terms of the Merger Agreement approved by the board of
trustees of Equity Office that would not materially adversely affect the Equity
Office Securityholder in its capacity as beneficial owner of Equity Office
Common Stock or EOP OP Units) 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 Equity Office Securityholder will retain the right to
vote its Equity Office Common Shares and EOP OP Units, in its sole discretion,
on all matters other than those described in paragraphs (a) or (b) of this
Section 2, and the Equity Office Securityholder may grant proxies and enter into
voting agreements or voting trusts for its Equity Office Common Shares and EOP
OP Units in respect of such other matters.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE EQUITY OFFICE SECURITYHOLDER
The Equity Office Securityholder represents and warrants to
Cornerstone and Cornerstone Partnership as follows:
(a) The Equity Office Securityholder has the legal capacity,
power, authority and right (contractual or otherwise) to execute and deliver
this Agreement and to perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by the
Equity Office Securityholder and constitutes a valid and binding obligation of
the Equity Office 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 Equity Office
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 which the Equity Office
Securityholder is a party or by which the Equity Office Securityholder is bound
or affected, which conflict, violation, breach or default would materially and
adversely affect the Equity Office Securityholder's ability to perform any of
its obligations under this Agreement.
(d) Subject to any required filings under the Securities
Exchange Act of 1934 (the " '34 Act"), the Equity Office 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 Equity Office 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 Equity Office Securityholder for the performance of the Equity Office
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 Equity Office
Securityholder's ability to perform this Agreement.
(e) Equity Office Common Shares and EOP OP Units set forth
opposite the name of the Equity Office Securityholder on Schedule 1 hereto are
the only Equity Office Common Shares and EOP OP Units owned beneficially or of
record by the Equity Office Securityholder or over which it exercises voting
control.
SECTION 4. FURTHER ASSURANCES
During the Term, the Equity Office Securityholder shall make
such filings as may be required under the '34 Act and, upon the request of
Cornerstone, execute and deliver such documents and take such actions as
Cornerstone may reasonably deem necessary to effectuate the purposes of this
Agreement.
SECTION 5. 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.
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SECTION 6. 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 7. 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 operation of law or otherwise.
SECTION 8. 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 Equity Office 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 Maryland with respect to any matters to which the Equity
Office Securityholder has submitted to jurisdiction in this Section 8. The
Equity Office Securityholder irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in any Maryland state
court or any federal court located in the State of Maryland, and hereby
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum. THE EQUITY OFFICE SECURITYHOLDER
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT.
SECTION 9. 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 10. 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.
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SECTION 11. 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 12. CAPACITY OF EQUITY OFFICE SECURITYHOLDER
The Equity Office Securityholder has executed this Agreement
solely in his capacity as a securityholder of Equity Office or EOP Partnership
and not in his capacity as an officer, director, employee or manager of Equity
Office or EOP Partnership. Without limiting the foregoing, nothing in this
Agreement shall limit or affect any actions taken by the Equity Office
Securityholder in his capacity as an officer, director, employee or manager of
Equity Office or EOP Partnership in connection with the exercise of Equity
Office's or EOP Partnership's rights under the Merger Agreement.
SECTION 13. TERMINATION
This Agreement shall terminate immediately upon the earlier of
(i) 30 days after 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 Equity Office Securityholder from any
liability arising from any breach of any of its representations, warranties,
covenants or agreements in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, or have caused this Agreement to be duly executed and
delivered in their names and on their behalf, as of the date first written
above.
CORNERSTONE PROPERTIES INC.
By: /s/
-------------------------------
Name:
Title:
CORNERSTONE PROPERTIES LIMITED
PARTNERSHIP
By: Cornerstone Properties Inc.,
its general partner
By: /s/
---------------------------
Name:
Title:
/s/ Xxxxxx Xxxx
----------------------------------
Xxxxxx Xxxx
EGI Holdings, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
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Samstock/ZFT L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
Samstock/Alpha L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
Samstock/SZRT L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
Samstock/ZGP L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
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Schedule 1
NAME OF RECORD AND # OF SHARES OF EQUITY # OF EOP TERMS OF
BENEFICIAL OWNER OFFICE COMMON STOCK OP UNITS PLEDGEE(1) PLEDGE
-------------------------------------------------------------------------------------------------------
Xxx Xxxx 8,175 0
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EGI Holdings, Inc. 12,834 1,919,706
Samstock/Alpha, L.L.C. 258,178 1,990,579
Samstock/ZFT L.L.C. 1,239,472 6,010,399
Samstock/SZRT L.L.C. 27,348 1,775,065
Samstock/ZGPI, L.L.C. 0 5,321
Any process, summons, notice or document delivered by mail pursuant to Section 8
hereof to the beneficial or record holder set forth on this Schedule 1, should
be delivered to:
With a copy to:
--------------
Equity Office Securityholder Xxxxx & Xxxxxxx L.L.P.
c/o Equity Group Investments, L.L.C. 000 Xxxxxxxxxx Xxxxxx, X.X.
Two North Riverside Plaza Washington, D.C. 20004-1109
Xxxxxxx, XX 00000 Attention: J. Xxxxxx Xxxxxxx, Xx.
Attention: Xxxxxx X. Xxxxxxxxxxx Xxxxxx X. Xxxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
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(1) Disclose all of Xx. Xxxx'x pledge and terms of pledge information in columns
4 and 5.
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