Exhibit 14
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VOTING AGREEMENT
This Agreement is made as of April 13, 1999 by and among Xxxxxxx X.
Xxxxx ("Xxxxx"), Berkshire Realty Company, Inc., a Delaware corporation (the
"Company") and BRI OP Limited Partnership, a Delaware limited partnership (the
"Partnership").
WHEREAS, the Company, Berkshire Realty Holdings, L.P. ("Parent") and
BRI Acquisition, LLC (the "Buyer") have entered into an Agreement and Plan of
Merger dated as of the date hereof (the "Merger Agreement") providing for the
merger of the Buyer with and into the Company as the surviving entity; and
WHEREAS, the Partnership, Parent and BRI Acquisition Sub, LP have
entered into an Agreement and Plan of Merger dated as of the date hereof (the
"Partnership Merger Agreement") providing for the merger of BRI Acquisition Sub,
LP with and into the Partnership, with the Partnership as the surviving entity;
and
WHEREAS, Xxxxx and persons or entities affiliated with Xxxxx
(collectively, the "Xxxxx Entities") own shares of common stock, $.01 par value
per share, of the Company ("Common Stock") and units of limited partnership
interest in the Partnership ("OP Units"); and
WHEREAS, in order to induce the Company and the Partnership to enter
into the Merger Agreement and the Partnership Merger Agreement, respectively,
Xxxxx is making the covenants set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Xxxxx agrees to cause each of the Xxxxx Entities (i) to vote the
Common Stock they own (including any Common Stock issued after the date hereof)
in favor of adoption of the Merger Agreement and approval of the transactions
contemplated thereby and (ii) to vote the OP Units they own (including any OP
Units issued after the date hereof) in favor of adoption of the Partnership
Merger Agreement and approval of the transactions contemplated thereby.
2. Xxxxx agrees, on behalf of the Xxxxx Entities that own Common Stock
or subsequently are issued Common Stock, that no such Xxxxx Entity shall demand
appraisal rights pursuant to Section 262 of the Delaware General Corporation Law
of the State of Delaware with respect to such shares of Common Stock in
connection with the transactions contemplated by the Merger Agreement.
3. Xxxxx shall be relieved from his obligations hereunder if the Board
of Directors of the Company withdraws its recommendation that stockholders of
the Company vote to adopt the Merger Agreement and approve the transactions
contemplated thereby or if the Board of
Directors of the Company fails to confirm its recommendation with respect to the
Merger Agreement within ten days of being requested to do so by the Buyer.
4. This Agreement constitutes the entire agreement among the parties
hereto and supersedes any prior understandings, agreements or representations by
or between the parties, written or oral, that may have related in any way to the
subject matter hereof.
5. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Delaware (without regard to any
conflicts-of-law principles that would result in the application of the law of
any other jurisdiction).
6. No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by Xxxxx and the Company.
7. Xxxxx acknowledges and agrees that the Company would be damaged
irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached.
Accordingly, Xxxxx agrees that the Company shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof having
jurisdiction over the parties and the matter, in addition to any other remedy to
which the Company may be entitled, at law or in equity.
8. This Agreement shall terminate upon the termination of the Merger
Agreement, provided that Xxxxx shall remain liable for any breaches of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
BERKSHIRE REALTY COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
BRIOP Limited Partnership
By: Berkshire Apartments, Inc., its
general partner
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
