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EXHIBIT 10.14
VOTING AGREEMENT
July 30, 1998
Developers Diversified Realty Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxx
Re: Voting Agreement
Ladies and Gentlemen:
The undersigned understands that Developers Diversified Realty
Corporation, an Ohio corporation ("DDRC"), and American Industrial Properties
REIT, a Texas real estate investment trust ("AIP"), are entering into a Share
Purchase Agreement to be dated on or about the date hereof (the "Purchase
Agreement"), and, together with DDR Office Flex Corporation, a Delaware
corporation, a Merger Agreement to be dated on or about the date hereof (the
"Merger Agreement" and, together with the Purchase Agreement, the "Agreements"),
providing for, among other things, the purchase of common shares, $.10 par value
per share, of AIP by DDRC (the "Share Purchase"). Under the rules of the New
York Stock Exchange, consummation of the Share Purchase will require the
approval of the shareholders of AIP.
The undersigned is a shareholder of AIP (the "Shareholder")
and is entering into this letter agreement at your request, in exchange for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, to induce you to enter into the Agreements and to consummate the
transactions contemplated thereby.
The Shareholder confirms its agreement with you as follows:
1. The Shareholder represents and warrants that Schedule I
annexed hereto sets forth the shares of beneficial interest of AIP of which the
Shareholder or any affiliate (as defined under the Securities Exchange Act of
1934, as amended) of the Shareholder controlled by the Shareholder (a
"Controlled Affiliate") is the beneficial owner (the "Shares") and that the
Shareholder and the Controlled Affiliates are on the date hereof the lawful
owners of the number of Shares set forth in Schedule I, free and clear of all
liens, charges, encumbrances, voting agreements and commitments of any kind,
except as disclosed in Schedule I. Except for the Shares set forth in Schedule
I, neither the Shareholder nor any Controlled Affiliate owns or holds any rights
to acquire any additional shares of beneficial interest of AIP (other than
pursuant to options or conversion rights with regard to any of the Shares, in
each case as disclosed in Schedule I) or any interest therein or any voting
rights with respect to any such additional shares.
2. Until the earliest date referred to in Section 12, the
Shareholder agrees that it will not, and will not permit any Controlled
Affiliate to, contract to sell, sell or otherwise transfer
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Developers Diversified Realty Corporation
July 30, 1998
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or dispose of any of the Shares or any interest therein or securities
convertible into shares of beneficial interest of AIP, or any voting rights with
respect thereto, without your prior written consent.
3. The Shareholder agrees that, during the term of this letter
agreement, neither it nor any Controlled Affiliate will take any action that AIP
would at that time be prohibited from taking under Section 5.4 of the Purchase
Agreement.
4. The Shareholder agrees that during the term of this letter
agreement (a) all of the shares of beneficial interest of AIP beneficially owned
by the Shareholder or any Controlled Affiliate, or over which the Shareholder or
any Controlled Affiliate has voting power or control, directly or indirectly
(including any such shares acquired after the date hereof) at the record date
for any meeting of shareholders of AIP called to consider and vote on the Share
Purchase and the Agreements and the transactions contemplated thereby or any
Competing Transaction (as such term is defined in the Purchase Agreement) will
be voted by the Shareholder or such Controlled Affiliates, or any representative
or proxy thereof, as applicable, in favor of the approval of the Share Purchase
and the Agreements and the transactions contemplated thereby and (b) neither the
Shareholder nor any Controlled Affiliate, nor any such representative or proxy,
will vote any such Shares in favor of any Competing Transaction.
5. The Shareholder agrees that the shares referred to in
Section 4 above that are owned at the record date for any meeting of
shareholders of AIP called to consider and vote on the election of members of
the Board of Trust Managers of the Trust (the "Board") will be voted by the
Shareholder or any Controlled Affiliate, or any representative or proxy thereof,
as applicable, in favor of the approval of the election of the representatives
of DDRC to the Board for so long as DDRC has the right to nominate members of
the Board under the Purchase Agreement.
6. The Shareholder hereby appoints Xxxx X. Xxxxxxx to attend
the special meeting of the shareholders of AIP held to consider and vote on the
Share Purchase and to vote the shares referred to in Section 4 above, with all
the power the Shareholder would possess if personally present, in favor of the
approval of the Share Purchase, the Agreements and the transactions contemplated
thereby. The Shareholder agrees to execute, and to cause each Controlled
Affiliate to execute, such proxies and other instruments, and to take and to
cause each Controlled Affiliate to take such actions, as may be necessary to
cause all of those shares to be so voted.
7. The Shareholder has all necessary power and authority to
enter into this letter agreement. This letter agreement is the legal, valid and
binding agreement of the Shareholder, and is enforceable against the Shareholder
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of equity.
This letter agreement shall inure to the benefit of the parties hereto and the
successors and assigns of DDRC.
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8. The Shareholder agrees that damages are an inadequate
remedy for the breach by Shareholder of any term or condition of this letter
agreement and that you shall be entitled to a temporary restraining order and
preliminary and permanent injunctive relief in order to enforce our agreements
herein.
9. Except to the extent that the laws of the jurisdiction of
organization of any party hereto, or any other jurisdiction, are mandatorily
applicable to matters arising under or in connection with this letter agreement,
this letter agreement shall be governed by the laws of the State of Ohio. All
actions and proceedings arising out of or relating to this letter agreement
shall be heard and determined in any United States District Court sitting in the
Northern District of Ohio.
10. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of any United States District Court located in the
Northern District of Ohio, for the purpose of any action or proceeding arising
out of or relating to this letter agreement and each of the parties hereto
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined exclusively in any federal court sitting in the Northern
District of Ohio. Each of the parties hereto agrees that a final judgment in any
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
The Shareholder hereby irrevocably appoints Xxxxx, Day, Xxxxxx
& Xxxxx, Cleveland, Ohio, as its lawful agent in and for the State of Ohio, for
and in its behalf, to accept and acknowledge service of, and upon whom may be
served, all necessary processes in any action, suit, or proceeding arising under
this Agreement that may be had or brought against it in any federal court in the
Northern District of Ohio, such service of process or notice, or the acceptance
thereof by said agent endorsed thereon, to have the same force and effect as if
served upon the Shareholder, provided that any such process or notice that may
be so served shall include a conspicuous statement to the effect that is to be
forwarded immediately to USAA Real Estate Company, 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000-0000, Attention: Legal Counsel (with a copy
to Xxxxxxxx X. Villareal, Jones, Day, Xxxxxx & Xxxxx, 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 75201). Nothing in this Section 10 shall affect the right of
any party hereto to serve legal process in any other manner permitted by law.
Shareholder hereby waives all defenses of improper venue and forum non
conveniens with respect to any action, suit, or proceeding brought in the any
United States District Court located in the Northern District of Ohio and
arising under this letter agreement.
11. This letter agreement constitutes the entire agreement
between the parties hereto with respect to the matters covered hereby and
supersedes all prior agreements, understandings or representations between the
parties, written or oral, with respect to the subject matter hereof.
12. This letter agreement and the proxy granted pursuant to
Section 6 hereof shall become effective upon the execution and delivery of the
Agreements by the respective parties thereto. Except as otherwise provided
herein, this letter agreement and the proxy granted pursuant to
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Section 6 hereof shall terminate automatically, without the need for any notice
or other action by either party, upon the earliest of (i) the date on which the
Purchase Agreement and the Merger Agreement are terminated, (ii) the Second
Closing Date, as defined in the Purchase Agreement, and (iii) the date that is
240 days after the date hereof.
13. Each of the parties hereto intends that AIP shall be a
third party beneficiary of this letter agreement, and shall be entitled to the
benefits hereof and shall have the ability to enforce the rights granted to DDRC
herein as fully as if it were a signatory of this letter agreement.
14. Notwithstanding anything to the contrary contained herein,
neither AIP nor any representative of the Shareholder serving on the Board of
Trust Managers of AIP shall be deemed to be a Controlled Affiliate.
Please confirm that the foregoing correctly states the
understanding between us by signing and returning to me a counterpart hereof.
USAA Real Estate Company
By: /s/ T. Xxxxxxx Xxxxxx
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Name: T. Xxxxxxx Xxxxxx
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Title: Senior Vice President
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Confirmed on the date
first above written
Developers Diversified Realty Corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: President
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Schedule I
Ownership of Shares of Beneficial Interest
Owned Beneficially (including Options to Purchase Shares)
Shares Shares
Owned of Subject to Total
Record Options Shares
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USAA Real Estate Company 1,674,086 6,000 1,680,086
