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Exhibit 9.1
VOTING AGREEMENT
(EQUITY OFFICE PROPERTIES TRUST)
THIS VOTING AGREEMENT (this "Agreement") is entered into as of September
29, 1997 by and among Beacon Properties Corporation, a Maryland corporation
("BEACON"), Beacon Properties, L.P., a Delaware limited partnership (the
"BEACON PARTNERSHIP"), and each of the undersigned shareholders of Equity
Office Properties Trust, a Maryland real estate investment trust ("EOP"),
and/or limited partners in EOP Operating Limited Partnership, a Delaware
limited partnership ("EOP PARTNERSHIP") (such shareholders and/or limited
partners each individually referred to herein as a "EOP SECURITYHOLDER" and
collectively as the "EOP 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 42.4/100 percent (1.424%) of the beneficial
and record ownership of the issued and outstanding common shares of beneficial
interest, $.01 par value per share, of EOP (the "EOP SHARES") are held by the
EOP Securityholders (including those EOP Shares pledged or to be pledged by EOP
Securityholders); and
WHEREAS, approximately ninety-six and 44/100 percent (96.44%) of the
beneficial and record ownership of the issued and outstanding units of limited
partnership interest of EOP Partnership ("EOP OP UNITS") are held by the EOP
Securityholders (including those EOP OP Units pledged or to be pledged by EOP
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 EOP SHARES AND EOP OP UNITS
Each EOP 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 EOP Securityholder will not (except with regard to those EOP Shares
or EOP OP Units described in Schedule 1 hereto which are either subject to
existing pledge or other security agreements or will be pledged pursuant to
existing understandings or arrangements ("Pledged Securities")), directly or
indirectly, (a) sell, transfer, pledge, encumber,
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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 EOP Shares or EOP OP
Units, (b) grant any proxies, deposit any EOP Shares or EOP OP Units into a
voting trust or enter into a voting agreement with respect to any EOP Shares or
EOP OP Units, or tender any EOP Shares or EOP 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 EOP 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 or EOP OP Units, 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 EOP Securityholder agrees, during the Term, to cast all votes
attributable to EOP Shares now and hereafter beneficially owned by such EOP
Securityholder at any annual or special meeting of shareholders of EOP,
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 trustees of EOP), 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) If a vote by holders of EOP OP Units is required by applicable law or
deemed advisable by the general partner of EOP Partnership, each EOP
Securityholder agrees during the Term, to cast all votes attributable to EOP OP
Units now and hereafter beneficially owned by such EOP Securityholder at any
Meeting, (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 trustees of EOP), 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.
(c) Each EOP Securityholder agrees to cast all votes attributable to EOP
Shares held by such EOP Securityholder in favor of the election of Xxxx X.
Xxxxxxxxx and Xxxxx Xxxxxx as trustees of EOP as contemplated by, and in
accordance with, Section 1.7 of the Merger Agreement.
(d) Notwithstanding the foregoing provisions of this Section 2, with
respect to Pledged Securities as to which a pledgee's consent is required in
connection with any vote required by such foregoing provisions, as indicated in
Schedule 1 hereto, the EOP Securityholder of such Pledged Securities shall use
his or its reasonable best efforts to obtain such consent but shall be under no
obligation to vote such Pledged Securities unless and until such consent is
obtained.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE EOP SECURITYHOLDERS
Each of the EOP Securityholders represents and warrants to Beacon 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 law,
regulation, court order, judgment or decree applicable to such EOP
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 EOP Securityholder is a
party or by which such EOP Securityholder is bound or affected, which conflict,
violation, breach or default would materially and adversely affect such EOP
Securityholder's ability to perform this Agreement.
(b) Such EOP 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 such EOP
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 EOP Securityholder for the
performance of such EOP 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 EOP Securityholder's ability to perform this Agreement.
(c) EOP Shares and EOP OP Units set forth opposite the name of such EOP
Securityholder on Schedule 1 hereto are the only EOP Shares and EOP OP Units
owned beneficially or of record by such EOP Securityholder or over which such
person exercises voting control.
SECTION 4. UNDERSTANDING OF THIS AGREEMENT
Each EOP Securityholder has carefully read this Agreement and has
discussed its requirements, to the extent such EOP Securityholder believes
necessary, with its counsel (which may be counsel to EOP). 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.
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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.
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
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Name: Xxxxxxx X. Xxxxxxx
Title: EVP-Chief Legal Counsel
EOP OPERATING LIMITED
By: Equity Office Properties Trust, its
general partner
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: EVP-Chief Legal Counsel
BEACON PROPERTIES CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: General Counsel
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation, its
general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: General Counsel
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SECURITYHOLDERS:
EGI HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SAMSTOCK/SZRT, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SAMSTOCK/ZFT, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SAMSTOCK/ALPHA, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
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XXXX XXXXXXX XXXXX XXXX XXXXXX OPPORTUNITY
PARTNERS LIMITED PARTNERSHIP
By: Equity Office Properties Trust, its
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXX XXXXXXX XXXXX REAL ESTATE OPPORTUNITY
PARTNERS LIMITED PARTNERSHIP II
By: Equity Office Properties Trust, its
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXX XXXXXXX XXXXX REAL ESTATE OPPORTUNITY
PARTNERS LIMITED PARTNERSHIP III
By: Equity Office Properties Trust, its
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
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XXXX XXXXXXX XXXXX XXXX XXXXXX OPPORTUNITY
PARTNERS LIMITED PARTNERSHIP IV
By: Equity Office Properties Trust, its
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
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Schedule 1
# OF OP UNITS TERMS OF
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SECURITYHOLDER # OF SHARES PLEDGEE PLEDGE
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