Exhibit 99.(D)(4)
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT (this "Agreement"), is entered into as of
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_____________ __, 2001, by and among CALWEST INDUSTRIAL PROPERTIES, LLC, a
California limited liability company ("CalWest"), ROOSTER ACQUISITION CORP., a
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Maryland corporation and wholly-owned subsidiary of CalWest ("Rooster
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Acquisition Corp."), CABOT INDUSTRIAL TRUST, a Maryland real estate investment
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trust ("Cabot"), CABOT INDUSTRIAL PROPERTIES, L.P., a Delaware limited
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partnership ("Cabot OP") and the holder identified on Schedule 1 hereto (the
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"Holder").
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A. The Holder is, as of the date hereof, the record and beneficial
owner of the number of (i) common shares of beneficial interest, par value $.01
per share, of Cabot (the "Cabot Common Shares") and/or (ii) partnership units
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issued to the limited partners of Cabot OP evidencing ownership in Cabot OP (the
"LP Units") in each case as set forth on Schedule 1 hereto;
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B. Concurrently herewith, CalWest, Rooster Acquisition Corp., Cabot and
Cabot OP have entered into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), which provides, among other things, for Rooster
Acquisition Corp. to conduct a tender offer for all of the issued and
outstanding Cabot Common Shares (the "Offer") and the merger (the "Merger") of
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Rooster Acquisition Corp. with and into Cabot with Cabot continuing as the
surviving entity; and
C. As a condition to the willingness of CalWest and Rooster Acquisition
Corp. to enter into the Merger Agreement and incurring the obligations set forth
therein, including the Offer, and as an inducement and in consideration
therefor, CalWest and Rooster Acquisition Corp. have required the Holder to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
Section 1. Representations and Warranties of the Holder. The Holder
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hereby represents and warrants to CalWest and Rooster Acquisition Corp. as
follows:
(a) Such Holder is the record and beneficial owner of, and has
good and valid title to, (i) the Cabot Common Shares (such Cabot Common Shares,
together with any Cabot Common Shares acquired by the Holder after the date of
this Agreement, whether upon the exercise of options to purchase Cabot Common
Shares or otherwise, all as may be adjusted from time to time pursuant to
Section 7 hereof, the "Shares" and together with the LP Units, the "Securities")
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and/or (ii) the LP Units in each case set forth opposite his, her or its name on
Schedule 1 to this Agreement. Schedule 1 lists separately all options, if any,
issued to such Holder.
(b) Such Holder, if an individual, has the legal capacity to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. Such Holder, if a
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corporation, partnership or limited liability company, is an entity duly
organized and validly existing under the laws of the jurisdiction in which it is
incorporated, formed or constituted, and such Holder has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement.
(c) This Agreement has been duly authorized, executed and
delivered by the Holder and constitutes the legal, valid and binding obligation
of such Holder, enforceable against such Holder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(d) 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, result in any violation of or default
(with or without notice or lapse of time or both) under, any provision of 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 Holder or to the Holder's property or assets. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, is required by or with
respect to the Holder in connection with the execution and delivery of this
Agreement or the consummation by the Holder of the transactions contemplated
hereby.
(e) At the time the Holder tenders his, her or its Shares into
the Offer, the Shares (including the Shares held by the Holder upon conversion
of the Holder's LP Units pursuant to Section 3(b)) will be held by the Holder,
or by a nominee or custodian for the benefit of the Holder, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
options, rights, adverse claims, understandings or arrangements, or any other
encumbrances whatsoever on title, transfer, or exercise of any rights of the
Holder in respect of such Shares (collectively, "Encumbrances"), except for any
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such Encumbrances arising hereunder.
Section 2. Representations and Warranties of CalWest and Rooster
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Acquisition Corp. Each of CalWest and Rooster Acquisition Corp. jointly and
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severally represents and warrants to the Holder as follows:
(a) CalWest is a California limited liability company duly
organized and validly existing and in good standing under the laws of the State
of California; and Rooster Acquisition Corp. is a corporation duly organized and
validly existing and is in good standing under the laws of the State of
Maryland. Each of CalWest and Rooster Acquisition Corp. has all requisite power
and authority to execute and deliver this Agreement and to consummate the
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transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by each of CalWest and Rooster Acquisition Corp. and constitutes the
legal, valid and binding obligation of each of CalWest and Rooster Acquisition
Corp., enforceable against each of them in accordance with its terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally, and (ii) the availability of the remedy of specific performance or
injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
(c) 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, result in any violation of or default
(with or without notice or lapse of time or both) under, any provision of 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 CalWest or Rooster Acquisition Corp. or to CalWest's or Rooster
Acquisition Corp's property or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, is required by or with respect to CalWest
or Rooster Acquisition Corp. in connection with the execution and delivery of
this Agreement or the consummation by CalWest or Rooster Acquisition Corp. of
the transactions contemplated hereby.
Section 3. Tender of the Shares.
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(a) The Holder shall tender his, her or its Shares into the
Offer as promptly as practicable, and in any event no later than the fifth
business day, following the commencement of the Offer pursuant to Section 1.1 of
the Merger Agreement. The Holder shall not withdraw any Shares so tendered
unless the Offer is terminated or has expired without Rooster Acquisition Corp.
purchasing all Cabot Common Shares validly tendered in the Offer.
(b) Immediately prior to and conditional upon Rooster
Acquisition Corp.'s acceptance for payment and payment for, pursuant to the
terms and conditions of the Offer, all Cabot Common Shares duly tendered
pursuant to the Offer and not withdrawn, the Holder shall exchange the LP Units
for Cabot Common Shares, pursuant to the conversion right of the limited
partners set forth in Section 4.2(e)(1) of the Second Amended and Restated
Agreement of Limited Partnership of Cabot OP. Upon such conversion, the Holder
shall immediately tender such Cabot Common Shares into the Offer. In connection
with such exchange of LP Units for Cabot Common Shares made pursuant to this
Section 3(b), Cabot hereby waives any notice requirements, including but not
limited to the notice requirement set forth in Section 4.2(e)(1) of the Second
Amended and Restated Agreement of Limited Partnership of Cabot OP, relating to
such exchange.
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Section 4. Sale of LP Units to Rooster Acquisition Corp.
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Notwithstanding any other provisions of this Agreement, at
Rooster Acquisition Corp.'s option and upon notice to the Holder, the Holder
shall (a) sell to CalWest or Rooster Acquisition Corp. the LP Units for the
aggregate cash consideration equal to the product of (i) the number of Cabot
Common Shares for which such LP Units may have been converted immediately prior
to such sale, multiplied by (ii) $24.00, or such greater amount as is offered
to the holders of Cabot Common Shares pursuant to the Officer and (b) not
convert the LP Units into Cabot Common Shares as contemplated by Section 3
hereof or otherwise; provided that the Holders's obligations pursuant to this
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Section 4 shall be conditioned upon Rooster Acquisition Corp's acceptance for
payment and payment for, pursuant to the terms and conditions of the Offer, all
Cabot Common Shares duly tendered pursuant to the Offer and not withdrawn.
Section 5. Transfer of the Securities.
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(a) The Holder shall not: (i) transfer, assign, sell,
gift-over, pledge or otherwise dispose of, or consent to any of the foregoing
(each, a "Transfer") with respect to, any or all of the Securities or any right
or interest therein; (ii) enter into any contract, option or other agreement,
arrangement or understanding with respect to any Transfer; (iii) grant any
proxy, power-of-attorney or other authorization or consent with respect to any
of the Securities; (iv) deposit any of the Securities into a voting trust, or
enter into a voting agreement or arrangement with respect to any of the
Securities or (v) take any other action that would in any way restrict, limit or
interfere with the performance of the Holder's obligations hereunder or the
consummation of the transactions contemplated hereby or by the Merger Agreement.
(b) The Holder agrees to surrender to Cabot or Cabot OP, as
applicable, or to the transfer agent for Cabot or Cabot OP, as applicable,
certificates evidencing the Securities, and shall cause Cabot or Cabot OP, as
applicable, or the transfer agent for Cabot or Cabot OP to place the following
legend on any and all certificates evidencing the Securities:
(i) in the case of Cabot Common Shares:
THE CABOT COMMON SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
CERTAIN SHAREHOLDER AGREEMENT, DATED AS OF ______________ __,
2001, BY AND AMONG CALWEST INDUSTRIAL PROPERTIES, LLC, ROOSTER
ACQUISITION CORP., CABOT INDUSTRIAL TRUST, CABOT INDUSTRIAL
PROPERTIES, L.P. AND THE HOLDER HEREOF. ANY TRANSFER OF SUCH
CABOT COMMON SHARES IN VIOLATION OF THE TERMS AND PROVISIONS
OF SUCH AGREEMENT SHALL BE NULL AND VOID AND OF NO EFFECT
WHATSOEVER.
(ii) in the case of LP Units:
THE PARTNERSHIP UNITS ISSUED TO LIMITED PARTNERS EVIDENCING
OWNERSHIP IN CABOT INDUSTRIAL PROPERTIES, L.P. REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER PURSUANT TO THAT CERTAIN SHAREHOLDER AGREEMENT, DATED
AS OF ______________ __, 2001, BY AND AMONG CALWEST INDUSTRIAL
PROPERTIES, LLC, ROOSTER ACQUISITION CORP., CABOT INDUSTRIAL
TRUST, CABOT INDUSTRIAL PROPERTIES, L.P. AND THE HOLDER
HEREOF. ANY TRANSFER OF SUCH PARTNERSHIP UNITS ISSUED TO
LIMITED PARTNERS EVIDENCING OWNERSHIP IN CABOT INDUSTRIAL
PROPERTIES, L.P. IN VIOLATION OF THE TERMS
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AND PROVISIONS OF SUCH AGREEMENT SHALL BE NULL
AND VOID AND OF NO EFFECT WHATSOEVER.
Section 6. Voting Arrangements.
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(a) At any meeting of the shareholders of Cabot (a "Cabot
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Shareholders' Meeting"), however called, and at every adjournment or
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postponement thereof, Holder shall (i) appear at the meeting or otherwise cause
such Holder's Shares to be counted as present thereat for purposes of
establishing a quorum, (ii) vote, or execute consents in respect of, such Shares
or cause such Shares to be voted, or consents to be executed in respect thereof,
in favor of the approval and adoption of the Merger Agreement (including any
revised or amended Merger Agreement approved by the board of trustees of Cabot,
and any action required in furtherance thereof and (iii) vote, or execute
consents in respect of, such Shares or cause such Shares to be voted, or
consents to be executed in respect thereof, against (A) any agreement or
transaction relating to any (i) (1) acquisition or purchase from Cabot by any
person or "group" (as defined under Section 13(d) of the Securities Exchange Act
of 1934, as amended ("Exchange Act") and the rules and regulations thereunder)
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of 15% or more of any class of equity securities (or voting debt) of Cabot or
Cabot OP, (2) any tender offer or exchange offer that if consummated would
result in any person or "group" (as so defined) beneficially owning 15% or more
of any class of equity securities (or voting debt) of Cabot or Cabot OP, or (3)
any merger, consolidation or other business combination, sale of shares of
beneficial interest, sale of assets, tender offer, exchange offer or similar
transaction or series of related transactions, which is structured to permit any
person or "group" (as so defined) to acquire beneficial ownership of more than
15% of the assets of Cabot and the Cabot Subsidiaries, taken as a whole, or 15%
or more of any class of equity securities (or voting debt) in Cabot or Cabot OP
(a "Competing Transaction"); (iii) any liquidation or dissolution of Cabot or
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Cabot OP; (iv) any proposal to approve the grant of voting rights upon "control
shares" (as defined in Title 3, Subtitle 7 of the Corporations and Associations
Article of the Annotated Code of Maryland ("Title 3") of Cabot acquired in any
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"control share acquisition" (as defined in Title 3) or (v) any transaction or
occurrence that if proposed and offered to Cabot or its shareholders (or any of
them) would constitute a transaction described in foregoing clause (A) or (B)
any amendment of Cabot's Declaration of Trust or By-laws or other proposal,
action or transaction involving Cabot or any of its Subsidiaries or any of its
shareholders, which amendment or other proposal, action or transaction could
reasonably be expected to prevent or materially impede or delay the consummation
of the Merger or the other transactions contemplated by the Merger Agreement or
the consummation of the transactions contemplated by this Agreement or to
deprive CalWest of any material portion of the benefits anticipated by CalWest
to be received from the consummation of the Merger or the other transactions
contemplated by the Merger Agreement or this Agreement, or change in any manner
the voting rights of Cabot Common Shares presented to the shareholders of Cabot
(regardless of any recommendation of the Board of Directors of Cabot) or in
respect of which vote or consent of the shareholder is requested or sought.
(b) No Proxy Solicitation. Each Holder shall not, and shall
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not permit any Affiliate of the Holder to: (i) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to a Competing Transaction or otherwise
encourage or assist any party in taking or planning any action that
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would compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms of the Merger
Agreement, (ii) initiate a vote or action by written consent in lieu of a Cabot
Shareholders' Meeting, or (iii) become a member of a "group" (as defined under
Section 13(d) of the Exchange Act and the rules and regulations thereunder) with
respect to any voting securities of Cabot or Cabot OP, as applicable, with
respect to any matter or transaction described in this Section 6(a).
(c) Irrevocable Proxy. As security for the Holder's
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obligations under Section 6(a), the Holder hereby irrevocably constitutes and
appoints CalWest as such Holder's attorney and proxy, with full power of
substitution and resubstitution, to cause the Shares to be counted as present at
any Cabot Shareholders' Meeting, to vote the Shares thereat, however called, and
execute consents in respect of the Shares as and to the extent provided in
Section 6(a). THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH
AN INTEREST. The Holder hereby revokes all other proxies and powers of attorney
with respect to the Shares that the Holder may have heretofore appointed or
granted, and no subsequent proxy or power of attorney shall be granted.
Section 7. Certain Events.
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In the event of any change in the Securities by reason of a
stock dividend, stock split, split-up, recapitalization, reorganization,
business combination, consolidation, exchange of shares or common units, or any
similar transaction or other change in the capital structure of Cabot or Cabot
OP affecting the Securities or the acquisition of additional shares or common
units, as applicable, of Securities or other securities or rights of Cabot or
Cabot OP by any Holder (whether through the exercise of any options, warrants or
other rights to purchase Securities or otherwise): (a) the number of Shares or
LP Units, applicable, owned by the Holder shall be adjusted appropriately and
(b) this Agreement and the obligations hereunder shall attach to any additional
shares or units of Securities or other securities or rights of Cabot or Cabot OP
issued to or acquired by each of the Holders.
Section 8. Competing Transactions; Non-Solicitation.
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(a) Competing Transactions. Each Holder will notify CalWest
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and Rooster Acquisition Corp. promptly if any proposals are received by, any
information is requested from, or any negotiations or discussions are sought to
be initiated or continued with such Holder, Cabot, Cabot OP, Cabot's and Cabot
OP's officers, trustees, employees, investment bankers, attorneys, accountants
or other agents, if any (each, a "Representative"), in each case in connection
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with any Competing Transaction indicating, in connection with such notice, the
name of the person making such proposal, requesting such information, or seeking
to initiate negotiations or discussions with the Holder or any officers,
trustees or agents of Cabot and Cabot OP that relate to a Competing Transaction
and the material terms and conditions of any proposals or offers. Such Holder
will keep CalWest and Rooster Acquisition Corp. fully informed, on a current
basis, of the status and terms of any Competing Transaction.
(b) Non-Solicitation. Each Holder agrees that it shall
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immediately cease any discussions, negotiations or communications with any
persons with respect to any Competing
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Transaction. Such Holder shall not and shall not authorize or permit its
Representatives to directly or indirectly (i) solicit, initiate, encourage,
facilitate or participate in any discussions or negotiations regarding, or
furnish to any person or group (as defined in Section l3(d)(3) of the Exchange
Act) any information or data with respect to or access to the properties,
offices, books, records, officers, directors or employees of, or take any other
action to knowingly, directly or indirectly, facilitate, solicit or encourage
the making of any proposal that constitutes, or may reasonably be expected to
lead to, any Competing Transaction; or (ii) enter into any agreement with
respect to any Competing Transaction. Any violation of the foregoing
restrictions by the Holder or its Representative, whether or not the Holder or
Representative is so authorized by Cabot or Cabot OP and whether or not the
Holder or Representative is purporting to act on behalf of Cabot or Cabot OP or
any other stockholder of Cabot or unitholder of Cabot OP or otherwise, shall be
deemed to be a breach of this Agreement by the Holder. It is understood that
this Section 8 limits the rights of the Holder only to the extent that the
Holder is acting in the Holder's capacity as a Holder. Nothing herein shall be
construed as preventing a Holder who is an officer or trustee of Cabot or Cabot
OP from fulfilling the obligations of such office or position.
Section 9. Further Assurances. The Holder shall, upon request of
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CalWest or Rooster Acquisition Corp., execute and deliver any additional
documents and take such further actions as are necessary or desirable to carry
out the provisions hereof.
Section 10. Termination. This Agreement, and all rights and obligations
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of the parties hereunder, shall terminate immediately upon the earlier of (a)
contemporaneously with any termination of the Merger Agreement in accordance
with its terms or (b) the Merger Effective Time; provided, however, that
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Sections 11 and 12 shall survive any termination of this Agreement.
Section 11. Expenses. All fees, costs and expenses incurred in
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connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees, costs and expenses.
Section 12. Public Announcements. The Holder shall not issue any press
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release or otherwise make any public statement or disclosure with respect to
this Agreement or the transactions contemplated hereby without the prior consent
of CalWest; provided, however, that such disclosure may be made without
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obtaining such prior consent if (i) the disclosure is required by any Law or
Order and (ii) Holder has first used its reasonable best efforts to consult with
CalWest about the form and substance of such disclosure. The Holder shall not
disclose in any manner or for any reason any confidential or proprietary
information concerning the business or properties of Cabot or any Cabot
Subsidiary, unless such disclosure is required by Law or Order.
Section 13. Miscellaneous.
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(a) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by a nationally recognized overnight
courier service, such as Federal Express (providing
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proof of delivery), to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to the Holder, at the address set forth on the signature
page hereto:
If to CalWest or Rooster Acquisition Corp., to:
CalWest Industrial Properties, LLC
c/o RREEF Real Estate Investment Managers
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Cabot, to:
Cabot Industrial Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) Headings. The headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed manually or by
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facsimile by the parties hereto, in any number of counterparts, each of which
shall be considered one and the same agreement and shall become effective when a
counterpart hereof shall have been signed by each of the parties and delivered
to the other parties.
(d) Entire Agreement. This Agreement constitutes the entire agreement
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among the parties with respect to the subject matter hereof and thereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof and
thereof.
(e) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Maryland, without giving effect to the
principles of conflicts of law thereof.
(f) Assignment. Neither this Agreement nor any of the rights, interests
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or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties except that CalWest and Rooster Acquisition Corp. may assign, in their
sole discretion and without the consent of any other party, any or all of their
rights, interests and obligations hereunder to each other or to one or more
direct or indirect wholly owned subsidiaries of CalWest (each, an "Assignee").
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Any such Assignee may thereafter assign, in its sole discretion and without the
consent of any other party, any or all of its rights, interests and obligations
hereunder to one or more additional Assignees. 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, and the
provisions of this Agreement are not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(g) Severability of Provisions. If any term or provision of this
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Agreement is invalid, illegal or incapable of being enforced by rule of law or
public policy, all other provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal substance of the
transactions contemplated by this Agreement is not affected in any manner
adverse to any party. Upon such determination that any provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
(h) Specific Performance. The parties hereto acknowledge that money
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damages would be an inadequate remedy for any breach of this Agreement by any
party hereto, and that the obligations of the parties hereto shall be
enforceable by any party hereto through injunctive or other equitable relief.
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(i) Amendment. No amendment, modification or waiver in respect of this
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Agreement shall be effective against any party unless it shall be in writing and
signed by such party.
(j) Binding Nature. This Agreement is binding upon and is solely for
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the benefit of the parties hereto and their respective successors, legal
representatives and assigns.
(k) Defined Terms. Capitalized terms used herein and not defined herein
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shall the meanings given to them in the Merger Agreement.
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IN WITNESS WHEREOF, CalWest, Rooster Acquisition Corp., Cabot, Cabot OP
and the Holder have caused this Agreement to be duly executed and delivered
as of the date first written above.
CALWEST INDUSTRIAL PROPERTIES, LLC
By: ________________________________________
Name: _______________________________________
Title: ______________________________________
ROOSTER ACQUISITION CORP.
By: ________________________________________
Name: _______________________________________
Title: ______________________________________
CABOT INDUSTRIAL TRUST
By: ________________________________________
Name: _______________________________________
Title: ______________________________________
CABOT INDUSTRIAL PROPERTIES, L.P.
By: ________________________________________
Name: _______________________________________
Title: ______________________________________
HOLDER
By: ________________________________________
Name: _______________________________________
Title: ______________________________________
Address:_____________________________________
_____________________________________
_____________________________________
Schedule 1
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------------------------------- ----------------------------- ----------------------------- -----------------------------
Name of Holder Number of Cabot Number of Options Number of LP Units
Common Shares
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------------------------------- ----------------------------- ----------------------------- -----------------------------