VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of November 16, 1998, among
SECURITY CAPITAL GROUP INCORPORATED, a Maryland corporation (the "Stockholder"),
and MERIDIAN INDUSTRIAL TRUST, INC., a Maryland corporation ("MIT").
WHEREAS, MIT and ProLogis Trust, a Maryland real estate investment trust
("ProLogis"), propose to enter into an Agreement and Plan of Merger dated as of
the date hereof (as the same may be amended or supplemented, the "Merger
Agreement;" capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement) providing for the merger of MIT with
and into ProLogis (the "Merger"), upon the terms and subject to the conditions
set forth in the Merger Agreement;
WHEREAS, the Stockholder owns beneficially and SC Realty Incorporated, a
Nevada corporation and direct wholly-owned subsidiary of the Stockholder (the
"Record Holder"), owns of record or has the power to direct the vote of
49,903,814 common shares of beneficial interest, par value $.01 per share, of
ProLogis ("ProLogis Common Stock") (such shares of ProLogis Common Stock and any
other shares of beneficial interest of ProLogis acquired by the Stockholder
after the date hereof and during the term of this Agreement, being collectively
referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, MIT has requested that the Stockholder enter into this Agreement in
connection with the required approval of the holders of the ProLogis Common
Stock (as defined in the Merger Agreement);
NOW, THEREFORE, to induce MIT to enter into, and in consideration of its
entering into, the Merger Agreement, and in consideration of the premises and
the representations, warranties and agreements contained herein, the parties
agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholder
hereby represents and warrants to MIT as of the date hereof as follows:
(a) AUTHORITY; NONCONTRAVENTION. The Stockholder has all requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Stockholder, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on the part
of the Stockholder. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder enforceable in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof (including Section 3 of
this Agreement) will not, conflict with or result in any violation of or default
(with or without notice or lapse of time or both) under any provision of, the
articles of incorporation or bylaws of the Stockholder, any trust agreement,
loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance.
rule or regulation applicable to the Stockholder or to the Stockholder's
property or assets. The Stockholder owns of record and beneficially all of
the outstanding shares of capital stock of the Record Holder.
(b) THE SUBJECT SHARES. The Record Holder is the record owner of,
and has good and marketable title to, the Subject Shares, free and clear of any
claims, liens, encumbrances and security interests whatsoever. The Record
Holder does not own, of record or beneficially, any shares of capital stock of
ProLogis other than the Subject Shares. The Record Holder has the sole right to
vote the Subject Shares, provided that the Stockholder has the power to direct
the voting of the Subject Shares. None of the Subject Shares are subject to any
voting trust or other agreement, arrangement or restriction with respect to the
voting of the Subject Shares, except as contemplated by this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF MIT. MIT hereby represents and
warrants to the Stockholder as of the date hereof that MIT has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by MIT, and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of MIT. This
Agreement has been duly executed and delivered by MIT and constitutes a valid
and binding obligation of MIT enforceable in accordance with its terms. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time or both) under any provision of, the articles of incorporation
or bylaws of MIT, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to MIT or to MIT's property or assets.
3. COVENANTS OF THE STOCKHOLDER. Until the termination of this Agreement
in accordance with Section 6, the Stockholder agrees as follows:
(a) At any meeting of stockholders of ProLogis called to vote upon
the Merger and the Merger Agreement and the transactions contemplated thereby
(as defined in the Merger Agreement) or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of
such proposals and any of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of the stockholders of ProLogis or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or cause
to be voted) the Subject Shares against any amendment of ProLogis's declaration
of trust or bylaws or other proposal or transaction involving ProLogis or any of
its subsidiaries, which amendment or other proposal or transaction would in any
manner
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impede, frustrate, prevent or nullify the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement. The
Stockholder further agrees not to commit or agree to take any action
inconsistent with the foregoing.
(c) Except as provided in the immediately succeeding sentence of this
Section 3(c), the Stockholder agrees not to, directly or indirectly, sell,
transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, the "Transfer"), or enter into any contract, option or other
arrangement (including any profit sharing agreement) with respect to the
Transfer of the Subject Shares or its beneficial or record ownership interest in
the Record Holder to any person and agrees not to commit or agree to take any of
the foregoing actions (provided that the foregoing shall not preclude a pledge
of the Subject Shares as security with respect to a bona fide loan from a
financial institution). Notwithstanding the foregoing, the Stockholder shall
have the right to Transfer the Subject Shares to a transferee provided that, as
a condition to any such Transfer, each such transferee shall execute and deliver
to MIT a counterpart of this Agreement and expressly agree to be bound hereby.
Notwithstanding anything in this Agreement to the contrary, the Stockholder
shall have no obligations under this Section 3 if the Merger Agreement is
amended or supplemented in any substantive manner without the Stockholder's
consent.
4. FURTHER ASSURANCES. The Stockholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as MIT may reasonably request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement.
5. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by either of the parties without the
prior written consent of the other party. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns.
6. TERMINATION. This Agreement shall terminate upon the earlier of (a)
the termination of the Merger Agreement, or (b) the Effective Time of the
Merger.
7. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to MIT in accordance with
Section 8.3 of the Merger Agreement and to the Stockholder at its address set
forth on the signature pages hereto (or at such other address for a party as
shall be specified by like written notice).
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(c) INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein)(i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(f) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
8. ENFORCEMENT. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Maryland or in a Maryland state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court in the event any dispute arises out
of this Agreement or any of the transactions contemplated hereby,(ii) agrees
that such party will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court,(iii) agrees that such
party will not bring any action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court sitting in the state
of Maryland or a Maryland state court and (iv) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, MIT and the Stockholder each has caused this Agreement
to be signed by its officer thereunto duly authorized, all as of the date first
written above.
MERIDIAN INDUSTRIAL TRUST, INC., A
MARYLAND CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: President
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SECURITY CAPITAL GROUP
INCORPORATED, A MARYLAND CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Senior Vice President and Secretary
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Address: 000 Xxxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
(Signature Page to Voting Agreement)
