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Exhibit 9.2
VOTING AGREEMENT
(BEACON PROPERTIES CORPORATION)
THIS VOTING AGREEMENT (this "Agreement") is entered into as of September
15, 1997 by and among Equity Office Properties Trust, a Maryland real estate
investment trust ("EOP"), EOP Operating Limited Partnership, a Delaware limited
partnership ("EOP PARTNERSHIP"), and each of the undersigned shareholders of
Beacon Properties Corporation, a Maryland corporation ("BEACON"), and/or
limited partners in Beacon Properties, L.P., a Delaware limited partnership
(the "BEACON PARTNERSHIP") (such shareholders and/or limited partners each
individually referred to herein as a "BEACON SECURITYHOLDER" and collectively
as the "BEACON SECURITYHOLDERS");
WHEREAS, EOP, EOP Partnership, Beacon and Beacon Partnership have entered
into an Agreement and Plan of Merger dated as of September 15, 1997 (the
"MERGER AGREEMENT") pursuant to which Beacon will be merged with and into EOP
(the "MERGER") and EOP shall be the survivor of the Merger and Beacon
Partnership will be merged with and into EOP Partnership pursuant to which EOP
Partnership will be the survivor of the Partnership Merger (all capitalized
terms used but not defined herein shall have the meanings set forth in the
Merger Agreement);
WHEREAS, approximately one and three-tenths percent (1.3 %) of the
beneficial and record ownership of the issued and outstanding shares of common
stock, $.01 par value per share, of Beacon (the "BEACON SHARES") are held by
the Beacon Securityholders; and
WHEREAS, approximately three and six-tenths percent (3.6 %) of the
beneficial and record ownership of the issued and outstanding units of limited
partnership interest in Beacon Partnership ("BEACON OP UNITS") are held by the
Beacon Securityholders;
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 BEACON SHARES AND BEACON OP UNITS
Each Securityholder agrees, for the period from the date hereof through
the record date for the Meeting (as defined below) at which the Merger is to be
considered or the date on which the Merger Agreement terminates, whichever is
earlier (such period hereinafter referred to as the "TERM"), that such
Securityholder will not (except with regard to those Beacon Shares as Beacon OP
Units described in Schedule 1 hereto which are subject to existing pledge or
other security agreements), 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 Beacon Shares or Beacon OP
Units, (b) grant any proxies, deposit any Beacon Shares or Beacon OP
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Units into a voting trust or enter into a voting agreement with respect to
any Beacon Shares or Beacon OP Units, or tender any Beacon Shares or Beacon OP
Units in a transaction other than the Merger, or (c) take any action which is
intended to have the effect of preventing or disabling the Beacon
Securityholder from performing its obligations under this Agreement; provided,
however, that nothing herein shall prevent the sale, transfer or pledge of any
of such EOP Shares, provided that the purchaser, transferee or pledgee thereof
agrees in writing to be bound by the terms of this Agreement.
SECTION 2. VOTING
(a) Each Beacon Securityholder agrees, during the Term, to cast all votes
attributable to Beacon Shares now and hereafter beneficially owned by such
Beacon Securityholder at any annual or special meeting of shareholders of
Beacon, including any adjournments or postponements thereof (a "MEETING"), (a)
in favor of adoption of the Merger Agreement and the transactions contemplated
thereby (including any amendments or modifications of the terms of the Merger
Agreement approved by the board of directors of Beacon), and (b) against
approval or adoption of any action or agreement (other than the Merger
Agreement or the transactions contemplated thereby) that would impede,
interfere with, delay, postpone or attempt to discourage the Merger.
(b) Each Beacon Securityholder agrees, during the Term, to cast all votes
attributable to Beacon OP Units now and hereafter beneficially owned by such
Beacon Securityholder at any meeting of Beacon Securityholders at which, and in
connection with any written consent with respect to which, such Beacon
Securityholder is entitled to vote, (a) in favor of the Partnership Merger and
the transactions contemplated thereby (including any amendments or
modifications of the terms of the Merger Agreement approved by the board of
directors of Beacon), and (b) against approval or adoption of any action or
agreement (other than the Merger Agreement or the transactions contemplated
thereby) that would impede, interfere with, delay, postpone or attempt to
discourage the Partnership Merger.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BEACON SECURITYHOLDERS
Each of the Beacon Securityholders represents and warrants to EOP as
follows:
(a) 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 such Beacon 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 such Beacon Securityholder is a party or by
which such Beacon Securityholder is bound or affected, which conflict,
violation, breach or default would materially and adversely affect such Beacon
Securityholder's ability to perform this Agreement.
(b) Such Beacon 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
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delivery of this Agreement or the performance of such Beacon
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 such Beacon Securityholder for the
performance of such Beacon 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 such Beacon Securityholder's ability to perform this
Agreement.
(c) Beacon Shares and Beacon OP Units set forth opposite the name of such
Beacon Securityholder on Schedule 1 hereto are the only Beacon Shares and
Beacon OP Units owned beneficially or of record by such Beacon Securityholder
or over which such person exercises voting control.
SECTION 4. UNDERSTANDING OF THIS AGREEMENT
Each Beacon Securityholder has carefully read this Agreement and has
discussed its requirements, to the extent such Beacon Securityholder believes
necessary, with its counsel (which may be counsel to Beacon). The undersigned
further understands that the parties to the Merger Agreement will be proceeding
in reliance upon 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.
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
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.
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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.
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. CONFLICT OF TERMS
In the event any provision of this Agreement is directly in conflict with,
or inconsistent with, any provision of the Merger Agreement, the provision of
the Merger Agreement shall control.
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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: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP - Chief Legal Counsel
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust, its
general partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP - Chief Legal Counsel
BEACON PROPERTIES CORPORATION
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: General Counsel
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation, its
general partner
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: General Counsel
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Schedule 1
SECURITYHOLDER # UNITS # SHARES
-------------- ------- --------
---------------
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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.
THE BONNYBROOK TRUST
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
As Trustee
THE BONNYBROOK TRUST
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
As Trustee
THE DARTMOUTH TRUST
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
As Trustee
THE DARTMOUTH TRUST
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
As Trustee
HOMATT LIMITED PARTNERSHIP
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Xxxx X. Xxxxxxxxx
General Partner
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Xxxxx X. Xxxxxx
General Partner
XXXXX LIMITED PARTNERSHIP
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Xxxx X. Xxxxxxxxx
General Partner
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Xxxxx X. Xxxxxx
General Partner
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THE XXXXXXXXX FAMILY
LIMITED PARTNERSHIP
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
Title:
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
Title:
PICKWICK TRUST
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
As Trustee
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
As Trustee
TRIDON LIMITED PARTNERSHIP
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Xxxx X. Xxxxxxxxx
General Partner
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Xxxxx X. Xxxxxx
General Partner
WYKEHAM TRUST
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------
As Trustee
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------------
As Trustee
/s/ XXXX XXXXXXXXX
-------------------------------------------
Xxxx Xxxxxxxxx
/s/ XXXX XXXXXXXXX
-------------------------------------------
Xxxx Xxxxxxxxx
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/s/ XXXXXX XXXXXXXXX
-------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx
/s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx
