<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(A)
AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(A)
(AMENDMENT NO. __)
Globe Business Resources, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
379395 10 6
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(CUSIP Number)
GARY P. KREIDER, ESQ.
Keating, Muething & Klekamp
One East Fourth Street, 18th Floor
Cincinnati, Ohio 45202
(513) 579-6411
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 14, 2000
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
(Continued on the following pages)
<PAGE> 2
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CUSIP No. 379395 10 6 13D
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Mr. David D. Hoguet
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO - See Item 3
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States citizen
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 1,882,877 - See Item 4
REPORTING -----------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
782,630 - See Item 5
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,882,877 - See Item 4
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.0% - See Item 4
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 379395 10 6 13D
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Mr. Alvin Z. Meisel
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO - See Item 3
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States citizen
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 1,882,877 - See Item 4
REPORTING ------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
384,428 - See Item 5
------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,882,877 - See Item 4
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.0% - See Item 4
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 379395 10 6 13D
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Mr. Blair D. Neller
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
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3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO - See Item 3
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States citizen
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 1,882,877 - See Item 4
REPORTING ------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
715,819 - See Item 5
------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,882,877 - See Item 4
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.0% - See Item 4
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 5
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the common stock (the "Common Stock"), of
Globe Business Resources, Inc., an Ohio corporation ("Globe"). Globe's principal
executive offices are located at 11260 Chester Road, Suite 400, Cincinnati, Ohio
45246
ITEM 2. IDENTITY AND BACKGROUND.
DAVID D. HOGUET
(a) David D. Hoguet
(b) 11260 Chester Road, Suite 400, Cincinnati, Ohio 45246
(c) Mr. Hoguet serves as Chairman of the Board of
Directors and Chief Executive Officer of Globe, 11260
Chester Road, Suite 400, Cincinnati, Ohio 45246.
(d) Mr. Hoguet, during the last five (5) years, has not
been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) Mr. Hoguet, during the last five (5) years, has not
been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction which
resulted in Mr. Hoguet being at any time subject to a
judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or
finding any violation with respect to such laws.
(f) United States citizen.
ALVIN Z. MEISEL
(a) Alvin Z. Meisel
(b) 1620 Central Parkway, Cincinnati, Ohio 45214
(c) Mr. Meisel is President of The Globe Furniture
Company (d/b/a Globe Furniture Galleries), a
furniture retailer in Cincinnati, Ohio. The principal
address is 1620 Central Parkway, Cincinnati, Ohio
45214.
(d) Mr. Meisel, during the last five (5) years, has not
been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) Mr. Meisel, during the last five (5) years, has not
been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction which
resulted in Mr. Meisel being at any time subject to a
judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities
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<PAGE> 6
subject to, federal or state securities laws or
finding any violation with respect to such laws.
(f) United States citizen.
BLAIR D. NELLER
(a) Blair D. Neller
(b) 340 East Palm Lane, Suite 230, Phoenix, Arizona 85004.
(c) Mr. Neller serves as President and Chief Operating
Officer of Globe, 340 East Palm Lane, Suite 230,
Phoenix, Arizona 85004.
(d) Mr. Neller, during the last five (5) years, has not
been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) Mr. Neller, during the last five (5) years, has not
been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction which
resulted in Mr. Neller being at any time subject to a
judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or
finding any violation with respect to such laws.
(f) United States citizen.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The transaction reported in this Schedule 13D required no funds.
ITEM 4. PURPOSE OF TRANSACTION.
In connection with an Agreement and Plan of Merger (the "Agreement")
dated as of January 13, 2000 by and among Globe, Globe Holding Co., Inc., a
Delaware corporation and ERP Operating Limited Partnership, an Illinois limited
partnership ("ERP"), Messrs. Hoguet, Meisel and Neller have entered into voting
agreements providing that they will collectively vote 1,859,767 shares of Common
Stock held by them in favor of the Agreement.
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
I. MR. DAVID D. HOGUET
(a) See page 2, nos. 11 and 13.
(b) See page 2, nos. 7-10. Page 2, no. 9 includes options
to purchase 10,000 shares of Common Stock exercisable
within 60 days and 165 shares held by Mr. Hoguet
indirectly through Globe's 401(k) Plan.
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(c) None.
(d) None.
(e) Not Applicable.
II. MR. ALVIN Z. MEISEL
(a) See page 3, nos. 11 and 13.
(b) See page 3, nos. 7-10. Page 3, no. 9 includes
options to purchase 3,000 shares of Common Stock
exercisable within 60 days.
(c) None.
(d) None.
(e) Not Applicable.
III. MR. BLAIR D. NELLER
(a) See page 4, nos. 11 and 13.
(b) See page 4, nos. 7-10. Page 4, no. 9 includes options
to purchase 10,000 shares of Common Stock exercisable
within 60 days and 176 shares held by Mr. Neller
indirectly through Globe's 401(k) Plan.
(c) None.
(d) None.
(e) Not Applicable.
IV. MESSRS. HOGUET, MEISEL AND NELLER
(a) 1,882,877 shares or 39.0%
(b) See pages 2 and 3, nos. 7-10
(c) None.
(d) None.
(e) Not Applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Except with respect to the voting agreements referenced in Item 4,
Messrs. Hoguet, Meisel and Neller have no agreements with respect to voting or
disposition of the Common Stock.
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<PAGE> 8
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Powers of Attorney executed in connection with filings under
the Securities Exchange Act of 1934
2. Stockholder Voting Agreement between ERP and David D. Hoguet.
3. Stockholder Voting Agreement between ERP and Alvin Z. Meisel.
4. Stockholder Voting Agreement between ERP and Blair D. Neller.
Dated: January 21, 2000 *
--------------------------------
David D. Hoguet
*
--------------------------------
Alvin Z. Meisel
*
--------------------------------
Blair D. Neller
*By: /s/ Gary P. Kreider
----------------------------
Gary P. Kreider
Attorney-in-Fact
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EXHIBIT 1
POWER OF ATTORNEY
I, DAVID D. HOGUET, hereby appoint GARY P. KREIDER and MARK A. WEISS,
or either of them, as my true and lawful attorney-in-fact to sign on my behalf
individually and to file with the Securities and Exchange Commission any
schedules or other filings or amendments thereto made by me pursuant to Section
13(d) of the Securities and Exchange Act of 1934.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th day of
January, 2000.
/s/ David D. Hoguet
---------------------------
DAVID D. HOGUET
<PAGE> 10
EXHIBIT 1
POWER OF ATTORNEY
I, ALVIN Z. MEISEL, do hereby appoint GARY P. KREIDER and MARK A.
WEISS, or either of them, as my true and lawful attorney-in-fact to sign on my
behalf individually and to file with the Securities and Exchange Commission any
schedules or other filings or amendments thereto made by me pursuant to Section
13(d) of the Securities and Exchange Act of 1934.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th day of
January, 2000.
/s/ Alvin Z. Meisel
---------------------------
ALVIN Z. MEISEL
<PAGE> 11
EXHIBIT 1
POWER OF ATTORNEY
I, BLAIR D. NELLER, do hereby appoint GARY P. KREIDER and MARK A.
WEISS, or either of them, as my true and lawful attorney-in-fact to sign on my
behalf individually and to file with the Securities and Exchange Commission any
schedules or other filings or amendments thereto made by me pursuant to Section
13(d) of the Securities and Exchange Act of 1934.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th day of
January, 2000.
/s/ Blair D. Neller
---------------------------
BLAIR D. NELLER
<PAGE> 12
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (the "Agreement") dated as of January
13, 2000 between ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited
partnership ("ERP"), and the undersigned holder of shares of common stock, no
par value (the "Common Stock"), of GLOBE BUSINESS RESOURCES, INC., an Ohio
corporation (the "Company") for and on behalf of itself and each of its
affiliates which is a holder of Common Stock (the undersigned holder, the
"Stockholder" and, where the content requires, all such holders, the
"Stockholders" or each a "Stockholder").
WHEREAS, ERP, Globe Holding Co., Inc., a Delaware corporation
("Newco"), and the Company 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
"Agreement and Plan of Merger"; capitalized terms used but not defined herein
shall have the meanings set forth in the Agreement and Plan of Merger) providing
for the merger of Acquisition, an Ohio corporation to be formed, with and into
the Company (the "Merger"), upon the terms and subject to the conditions set
forth in the Agreement and Plan of Merger;
WHEREAS, the Stockholder owns the number of shares of Common Stock set
forth below his name on the signature page of this Agreement (such shares of
Common Stock, the "Existing Shares" and, together with any other shares of
capital stock of the Company acquired by such 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 Agreement
and Plan of Merger, ERP has requested that Stockholder enter into this
Agreement;
NOW, THEREFORE, 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. Stockholder
hereby represents and warrants to ERP as of the date hereof as follows:
(a) Stockholder has all requisite legal capacity, power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. 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
do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, conflict with, or result
in any breach or violation of, or default (with or without notice or
lapse of time or both) under any provision of, any agreement to which
any Stockholder is a party. Except as
<PAGE> 13
contemplated by that certain Formation and Investment Agreement dated
as of the date hereof (the "Formation Agreement"), the Existing Shares
are not subject to any lien, pledge or encumbrance of any kind except
for any encumbrances under the terms of the Stockholder's margin
account in which the Existing Shares are held, but with respect to such
margin account, only for the period permitted by, and subject to the
provisions of, the Formation Agreement.
(b) Each Stockholder is the record holder or beneficial owner
of the number of Existing Shares as is set forth on the signature page
hereto. On the date hereof, the Existing Shares set forth on the
signature page hereto constitute all of the outstanding shares of
Common Stock owned of record or beneficially by such Stockholder.
Stockholder does not have record or beneficial ownership of any shares
of Common Stock not set forth on the signature page hereto. Each
Stockholder has sole power of disposition with respect to all of the
Existing Shares set forth on the signature page hereto and sole voting
power with respect to the matters set forth in Section 3 hereof and
sole power to demand dissenter's or appraisal rights, in each case with
respect to all of the Existing Shares set forth on the signature page
hereto, with no restrictions on such rights, subject to the terms of
this Agreement.
(c) Each Stockholder's Existing Shares and the certificates
representing such shares and the Subject Shares and the certificates
representing such shares when acquired are now and at all times during
the term hereof will be held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising
hereunder or under the terms of the Stockholder's margin account in
which the Existing Shares are held, but with respect to such margin
account, only for the period permitted by, and subject to the
provisions of, the Formation Agreement.
(d) The Stockholder is a bona fide resident of the State set
forth below Stockholder's name on the signature page hereto.
2. REPRESENTATIONS AND WARRANTIES OF ERP. ERP hereby represents and
warrants to the Stockholder that ERP has all requisite limited partnership power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the general
partner of ERP, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary limited partnership action on the
part of ERP. This Agreement has been duly executed and delivered by the general
partner of ERP and constitutes a valid and binding obligation of ERP enforceable
in accordance with its terms.
3. COVENANTS OF STOCKHOLDER. From and after the date hereof and until
the termination of this Agreement in accordance with Section 7, Stockholder
agrees as follows:
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(a) At any meeting of stockholders of the Company called to
vote upon the Merger or the Agreement and Plan of Merger or any
adjournment thereof or in any other circumstances upon which a vote,
consent or other approval with respect to the Merger or the
transactions contemplated by the Agreement and Plan of Merger is
sought, each Stockholder shall vote (or cause to be voted) all of the
Subject Shares in favor of the Merger, the adoption by the Company of
the Agreement and Plan of Merger and the approval of the terms thereof
and the transaction contemplated thereby.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, each
Stockholder shall vote (or cause to be voted) all of the Subject Shares
against (i) any merger agreement or merger (other than the Agreement
and Plan of Merger and the Merger), consolidation, combination, sale of
assets, reorganization, recapitalization, dissolution, liquidation or
winding-up of or by the Company or any other takeover proposal
(collectively, "Takeover Proposal"), (ii) any action or agreement that
would result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Agreement
and Plan of Merger or this Agreement or (iii) (x) any material
amendment of the Company's articles of incorporation or code of
regulations, (y) any change in a majority of the persons who constitute
the Board of Directors of the Company or (z) any other proposal or
transaction involving the Company, which is intended by any Stockholder
to, or which ERP notifies any Stockholder that ERP reasonably believes
will, impede, frustrate, prevent, delay or nullify (A) the ability of
the Company to consummate the Merger or (B) any of the transactions
contemplated by this Agreement or the Agreement and Plan of Merger.
(c) Except as contemplated by the Formation Agreement,
Stockholder agrees not to (i) offer to sell, sell, transfer, encumber,
pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any contract, option or other
arrangement with respect to or consent to the Transfer of, the Subject
Shares or any interest therein to any person other than pursuant to the
terms of the Merger, (ii) except as contemplated hereby, grant any
proxies or powers of attorney with respect to the Subject Shares,
deposit any Subject Shares into a voting trust or enter into any voting
arrangement with respect to the Subject Shares, or any interest in the
foregoing, except with ERP, (iii) take any action that would make any
representation or warranty of such Stockholder contained herein untrue
or incorrect to have the effect of preventing or disabling the
Stockholder from performing any of its obligations under this Agreement
or (iv) commit or agree to take any of the foregoing actions.
(d) Stockholder hereby irrevocably waives and agrees not to
exercise any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
3
<PAGE> 15
(e) Stockholder agrees with, and covenants to, ERP that the
Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Subject Shares, unless such transfer is made in
compliance with this Agreement.
(f) Stockholder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to the sale, voting or
other disposition of the Existing Shares or a business combination
transaction involving the Company. Stockholder shall not directly or
indirectly, through any employee of the Company, representative, agent
or other person, solicit or encourage the initiation or submission of
any direct or indirect inquiries, proposals or offers regarding any
acquisition, merger, takeover bid or sale of all or any of the assets
or any shares of capital stock of the Company, whether or not in
writing and whether or not delivered to the Company or to the
stockholders of the Company generally (including, without limitation,
by way of a tender offer) by any party other than ERP or its affiliates
(any such inquiry, proposal or offer being referred to herein as an
"Acquisition Proposal"); provided, however, that nothing contained in
this Agreement shall prevent any Stockholder from considering or
negotiating, solely in his capacity as a director of the Company, an
unsolicited, bona fide Acquisition Proposal in accordance with Section
5.1 of the Agreement and Plan of Merger. Stockholder will immediately
notify ERP, orally and in writing, of any direct or indirect contact
related in any way to an Acquisition Proposal, including the identity
of the person involved in such contact, or on whose behalf such contact
is made, and the terms and conditions of any Acquisition Proposal made.
(g) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS ERP AND ANY
DESIGNEE OF ERP, AND EACH OF THEM INDIVIDUALLY, STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) PROXY AND
ATTORNEY-IN-FACT WITH FULL POWER OF SUBSTITUTION TO VOTE THE SUBJECT
SHARES OF STOCKHOLDER AS INDICATED IN SECTION 3(A) AND 3(B) ABOVE. THE
STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION
OF THIS AGREEMENT) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION TO REVOKE AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY STOCKHOLDER WITH RESPECT TO SUCH STOCK HOLDER'S SUBJECT
SHARES.
4. FORMATION AGREEMENT. Notwithstanding anything herein to the
contrary, the Stockholder's execution of the Formation Agreement shall not be
deemed to be a violation or breach of this Agreement in any manner.
5. 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
4
<PAGE> 16
instruments as ERP may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
6. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successor and assigns.
7. TERMINATION. This Agreement shall terminate, and no party shall have
any rights or obligations hereunder and this Agreement shall become null and
void and have no further effect upon the Effective Time or sooner termination of
the Agreement and Plan of Merger pursuant to Section 8.1 thereof, and the
payment, if required, by the Company to ERP of the Break-Up Fee or the ERP
Liquidated Damages Amount. Nothing in this Section 7 shall relieve any party of
liability for breach of this Agreement.
8. COSTS AND EXPENSES. All costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses.
9. 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 ERP in
accordance with Section 9.2 of the Agreement and Plan of Merger and to
Stockholder at its address set forth on the signature page of this
Agreement (or at such other address for a party as shall be specified
by like notice).
(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) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to
any party. Upon such determination that any
5
<PAGE> 17
term or other 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 a mutually acceptable manner in order that the
transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
(e) 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 one party, it being understood that each party need not sign the
same counterpart.
(f) 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.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Ohio regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
10. 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 Ohio or in an Ohio 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 located in the State of Ohio or any Ohio state
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 Ohio or an Ohio 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. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
6
<PAGE> 18
11. JOINDER. If the Stockholder resides in a community property state,
the Stockholder has delivered to ERP a spousal joinder or consent in the form
heretofore provided by ERP.
(signature page follows)
7
<PAGE> 19
IN WITNESS WHEREOF, ERP has caused this Agreement to be signed by its
general partner and Stockholder has signed this Agreement, all as of the date
first written above.
ERP OPERATING LIMITED
PARTNERSHIP
By: Equity Residential Properties Trust, its
general partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STOCKHOLDER
By:
-----------------------------------------
Name: David D. Hoguet
Address: 11260 Chester Road
Suite 400
Cincinnati, Ohio 45246
By:
-----------------------------------------
Name: David D. Hoguet, as custodian
for Jennifer L. Hoguet
Address: 11260 Chester Road
Suite 400
Cincinnati, Ohio 45246
By:
-----------------------------------------
Name: David D. Hoguet, as custodian
for Laura B. Hoguet
Address: 11260 Chester Road
Suite 400
Cincinnati, Ohio 45246
Aggregate Number of Existing Shares: 772,630
8
<PAGE> 20
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (the "Agreement") dated as of January
13, 2000 between ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited
partnership ("ERP"), and the undersigned holder of shares of common stock, no
par value (the "Common Stock"), of GLOBE BUSINESS RESOURCES, INC., an Ohio
corporation (the "Company") for and on behalf of itself and each of its
affiliates which is a holder of Common Stock (the undersigned holder, the
"Stockholder" and, where the content requires, all such holders, the
"Stockholders" or each a "Stockholder").
WHEREAS, ERP, Globe Holding Co., Inc., a Delaware corporation
("Newco"), and the Company 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
"Agreement and Plan of Merger"; capitalized terms used but not defined herein
shall have the meanings set forth in the Agreement and Plan of Merger) providing
for the merger of Acquisition, an Ohio corporation to be formed, with and into
the Company (the "Merger"), upon the terms and subject to the conditions set
forth in the Agreement and Plan of Merger;
WHEREAS, the Stockholder owns the number of shares of Common Stock set
forth below his name on the signature page of this Agreement (such shares of
Common Stock, the "Existing Shares" and, together with any other shares of
capital stock of the Company acquired by such 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 Agreement
and Plan of Merger, ERP has requested that Stockholder enter into this
Agreement;
NOW, THEREFORE, 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. Stockholder
hereby represents and warrants to ERP as of the date hereof as follows:
(a) Stockholder has all requisite legal capacity, power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. 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
do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, conflict with, or result
in any breach or violation of, or default (with or without notice or
lapse of time or both) under any provision of, any agreement to which
any Stockholder is a party. Except as
<PAGE> 21
contemplated by that certain Formation and Investment Agreement dated
as of the date hereof (the "Formation Agreement"), the Existing Shares
are not subject to any lien, pledge or encumbrance of any kind except
for any encumbrances under the terms of the Stockholder's margin
account in which the Existing Shares are held, but with respect to such
margin account, only for the period permitted by, and subject to the
provisions of, the Formation Agreement.
(b) Each Stockholder is the record holder or beneficial owner
of the number of Existing Shares as is set forth on the signature page
hereto. On the date hereof, the Existing Shares set forth on the
signature page hereto constitute all of the outstanding shares of
Common Stock owned of record or beneficially by such Stockholder.
Stockholder does not have record or beneficial ownership of any shares
of Common Stock not set forth on the signature page hereto. Each
Stockholder has sole power of disposition with respect to all of the
Existing Shares set forth on the signature page hereto and sole voting
power with respect to the matters set forth in Section 3 hereof and
sole power to demand dissenter's or appraisal rights, in each case with
respect to all of the Existing Shares set forth on the signature page
hereto, with no restrictions on such rights, subject to the terms of
this Agreement.
(c) Each Stockholder's Existing Shares and the certificates
representing such shares and the Subject Shares and the certificates
representing such shares when acquired are now and at all times during
the term hereof will be held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising
hereunder or under the terms of the Stockholder's margin account in
which the Existing Shares are held, but with respect to such margin
account, only for the period permitted by, and subject to the
provisions of, the Formation Agreement.
(d) The Stockholder is a bona fide resident of the State set
forth below Stockholder's name on the signature page hereto.
2. REPRESENTATIONS AND WARRANTIES OF ERP. ERP hereby represents and
warrants to the Stockholder that ERP has all requisite limited partnership power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the general
partner of ERP, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary limited partnership action on the
part of ERP. This Agreement has been duly executed and delivered by the general
partner of ERP and constitutes a valid and binding obligation of ERP enforceable
in accordance with its terms.
3. COVENANTS OF STOCKHOLDER. From and after the date hereof and until
the termination of this Agreement in accordance with Section 7, Stockholder
agrees as follows:
2
<PAGE> 22
(a) At any meeting of stockholders of the Company called to
vote upon the Merger or the Agreement and Plan of Merger or any
adjournment thereof or in any other circumstances upon which a vote,
consent or other approval with respect to the Merger or the
transactions contemplated by the Agreement and Plan of Merger is
sought, each Stockholder shall vote (or cause to be voted) all of the
Subject Shares in favor of the Merger, the adoption by the Company of
the Agreement and Plan of Merger and the approval of the terms thereof
and the transaction contemplated thereby.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, each
Stockholder shall vote (or cause to be voted) all of the Subject Shares
against (i) any merger agreement or merger (other than the Agreement
and Plan of Merger and the Merger), consolidation, combination, sale of
assets, reorganization, recapitalization, dissolution, liquidation or
winding-up of or by the Company or any other takeover proposal
(collectively, "Takeover Proposal"), (ii) any action or agreement that
would result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Agreement
and Plan of Merger or this Agreement or (iii) (x) any material
amendment of the Company's articles of incorporation or code of
regulations, (y) any change in a majority of the persons who constitute
the Board of Directors of the Company or (z) any other proposal or
transaction involving the Company, which is intended by any Stockholder
to, or which ERP notifies any Stockholder that ERP reasonably believes
will, impede, frustrate, prevent, delay or nullify (A) the ability of
the Company to consummate the Merger or (B) any of the transactions
contemplated by this Agreement or the Agreement and Plan of Merger.
(c) Except as contemplated by the Formation Agreement,
Stockholder agrees not to (i) offer to sell, sell, transfer, encumber,
pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any contract, option or other
arrangement with respect to or consent to the Transfer of, the Subject
Shares or any interest therein to any person other than pursuant to the
terms of the Merger, (ii) except as contemplated hereby, grant any
proxies or powers of attorney with respect to the Subject Shares,
deposit any Subject Shares into a voting trust or enter into any voting
arrangement with respect to the Subject Shares, or any interest in the
foregoing, except with ERP, (iii) take any action that would make any
representation or warranty of such Stockholder contained herein untrue
or incorrect to have the effect of preventing or disabling the
Stockholder from performing any of its obligations under this Agreement
or (iv) commit or agree to take any of the foregoing actions.
(d) Stockholder hereby irrevocably waives and agrees not to
exercise any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
3
<PAGE> 23
(e) Stockholder agrees with, and covenants to, ERP that the
Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Subject Shares, unless such transfer is made in
compliance with this Agreement.
(f) Stockholder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to the sale, voting or
other disposition of the Existing Shares or a business combination
transaction involving the Company. Stockholder shall not directly or
indirectly, through any employee of the Company, representative, agent
or other person, solicit or encourage the initiation or submission of
any direct or indirect inquiries, proposals or offers regarding any
acquisition, merger, takeover bid or sale of all or any of the assets
or any shares of capital stock of the Company, whether or not in
writing and whether or not delivered to the Company or to the
stockholders of the Company generally (including, without limitation,
by way of a tender offer) by any party other than ERP or its affiliates
(any such inquiry, proposal or offer being referred to herein as an
"Acquisition Proposal"); provided, however, that nothing contained in
this Agreement shall prevent any Stockholder from considering or
negotiating, solely in his capacity as a director of the Company, an
unsolicited, bona fide Acquisition Proposal in accordance with Section
5.1 of the Agreement and Plan of Merger. Stockholder will immediately
notify ERP, orally and in writing, of any direct or indirect contact
related in any way to an Acquisition Proposal, including the identity
of the person involved in such contact, or on whose behalf such contact
is made, and the terms and conditions of any Acquisition Proposal made.
(g) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS ERP AND ANY
DESIGNEE OF ERP, AND EACH OF THEM INDIVIDUALLY, STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) PROXY AND
ATTORNEY-IN-FACT WITH FULL POWER OF SUBSTITUTION TO VOTE THE SUBJECT
SHARES OF STOCKHOLDER AS INDICATED IN SECTION 3(A) AND 3(B) ABOVE. THE
STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION
OF THIS AGREEMENT) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION TO REVOKE AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY STOCKHOLDER WITH RESPECT TO SUCH STOCK HOLDER'S SUBJECT
SHARES.
4. FORMATION AGREEMENT. Notwithstanding anything herein to the
contrary, the Stockholder's execution of the Formation Agreement shall not be
deemed to be a violation or breach of this Agreement in any manner.
5. 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
4
<PAGE> 24
instruments as ERP may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
6. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successor and assigns.
7. TERMINATION. This Agreement shall terminate, and no party shall have
any rights or obligations hereunder and this Agreement shall become null and
void and have no further effect upon the Effective Time or sooner termination of
the Agreement and Plan of Merger pursuant to Section 8.1 thereof, and the
payment, if required, by the Company to ERP of the Break-Up Fee or the ERP
Liquidated Damages Amount. Nothing in this Section 7 shall relieve any party of
liability for breach of this Agreement.
8. COSTS AND EXPENSES. All costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses.
9. 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 ERP in
accordance with Section 9.2 of the Agreement and Plan of Merger and to
Stockholder at its address set forth on the signature page of this
Agreement (or at such other address for a party as shall be specified
by like notice).
(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) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to
any party. Upon such determination that any
5
<PAGE> 25
term or other 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 a mutually acceptable manner in order that the
transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
(e) 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 one party, it being understood that each party need not sign the
same counterpart.
(f) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including the documents and instruments referred to herein)
(i) constitutes the entire agree ment 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.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Ohio regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
10. 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 Ohio or in an Ohio 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 located in the State of Ohio or any Ohio state
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 Ohio or an Ohio 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. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
6
<PAGE> 26
11. JOINDER. If the Stockholder resides in a community property state,
the Stockholder has delivered to ERP a spousal joinder or consent in the form
heretofore provided by ERP.
(signature page follows)
7
<PAGE> 27
IN WITNESS WHEREOF, ERP has caused this Agreement to be signed by its
general partner and Stockholder has signed this Agreement, all as of the date
first written above.
ERP OPERATING LIMITED
PARTNERSHIP
By: Equity Residential Properties
Trust, its general partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
STOCKHOLDER
By:
-------------------------------------
Name: Alvin Z. Meisel
Address: 1650 Central Parkway
Cincinnati, Ohio 45210
Number of Existing Shares: 381,428
8
<PAGE> 28
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (the "Agreement") dated as of January
13, 2000 between ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited
partnership ("ERP"), and the undersigned holder of shares of common stock, no
par value (the "Common Stock"), of GLOBE BUSINESS RESOURCES, INC., an Ohio
corporation (the "Company") for and on behalf of itself and each of its
affiliates which is a holder of Common Stock (the undersigned holder, the
"Stockholder" and, where the content requires, all such holders, the
"Stockholders" or each a "Stockholder").
WHEREAS, ERP, Globe Holding Co., Inc., a Delaware corporation
("Newco"), and the Company 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
"Agreement and Plan of Merger"; capitalized terms used but not defined herein
shall have the meanings set forth in the Agreement and Plan of Merger) providing
for the merger of Acquisition, an Ohio corporation to be formed, with and into
the Company (the "Merger"), upon the terms and subject to the conditions set
forth in the Agreement and Plan of Merger;
WHEREAS, the Stockholder owns the number of shares of Common Stock set
forth below his name on the signature page of this Agreement (such shares of
Common Stock, the "Existing Shares" and, together with any other shares of
capital stock of the Company acquired by such 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 Agreement
and Plan of Merger, ERP has requested that Stockholder enter into this
Agreement;
NOW, THEREFORE, 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. Stockholder
hereby represents and warrants to ERP as of the date hereof as follows:
(a) Stockholder has all requisite legal capacity, power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. 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
do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, conflict with, or result
in any breach or violation of, or default (with or without notice or
lapse of time or both) under any provision of, any agreement to which
any Stockholder is a party. Except as
<PAGE> 29
contemplated by that certain Formation and Investment Agreement dated
as of the date hereof (the "Formation Agreement"), the Existing Shares
are not subject to any lien, pledge or encumbrance of any kind except
for any encumbrances under the terms of the Stockholder's margin
account in which the Existing Shares are held, but with respect to such
margin account, only for the period permitted by, and subject to the
provisions of, the Formation Agreement.
(b) Each Stockholder is the record holder or beneficial owner
of the number of Existing Shares as is set forth on the signature page
hereto. On the date hereof, the Existing Shares set forth on the
signature page hereto constitute all of the outstanding shares of
Common Stock owned of record or beneficially by such Stockholder.
Stockholder does not have record or beneficial ownership of any shares
of Common Stock not set forth on the signature page hereto. Each
Stockholder has sole power of disposition with respect to all of the
Existing Shares set forth on the signature page hereto and sole voting
power with respect to the matters set forth in Section 3 hereof and
sole power to demand dissenter's or appraisal rights, in each case with
respect to all of the Existing Shares set forth on the signature page
hereto, with no restrictions on such rights, subject to the terms of
this Agreement.
(c) Each Stockholder's Existing Shares and the certificates
representing such shares and the Subject Shares and the certificates
representing such shares when acquired are now and at all times during
the term hereof will be held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising
hereunder or under the terms of the Stockholder's margin account in
which the Existing Shares are held, but with respect to such margin
account, only for the period permitted by, and subject to the
provisions of, the Formation Agreement.
(d) The Stockholder is a bona fide resident of the State set
forth below Stockholder's name on the signature page hereto.
2. REPRESENTATIONS AND WARRANTIES OF ERP. ERP hereby represents and
warrants to the Stockholder that ERP has all requisite limited partnership power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the general
partner of ERP, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary limited partnership action on the
part of ERP. This Agreement has been duly executed and delivered by the general
partner of ERP and constitutes a valid and binding obligation of ERP enforceable
in accordance with its terms.
3. COVENANTS OF STOCKHOLDER. From and after the date hereof and until
the termination of this Agreement in accordance with Section 7, Stockholder
agrees as follows:
2
<PAGE> 30
(a) At any meeting of stockholders of the Company called to
vote upon the Merger or the Agreement and Plan of Merger or any
adjournment thereof or in any other circumstances upon which a vote,
consent or other approval with respect to the Merger or the
transactions contemplated by the Agreement and Plan of Merger is
sought, each Stockholder shall vote (or cause to be voted) all of the
Subject Shares in favor of the Merger, the adoption by the Company of
the Agreement and Plan of Merger and the approval of the terms thereof
and the transaction contemplated thereby.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, each
Stockholder shall vote (or cause to be voted) all of the Subject Shares
against (i) any merger agreement or merger (other than the Agreement
and Plan of Merger and the Merger), consolidation, combination, sale of
assets, reorganization, recapitalization, dissolution, liquidation or
winding-up of or by the Company or any other takeover proposal
(collectively, "Takeover Proposal"), (ii) any action or agreement that
would result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Agreement
and Plan of Merger or this Agreement or (iii) (x) any material
amendment of the Company's articles of incorporation or code of
regulations, (y) any change in a majority of the persons who constitute
the Board of Directors of the Company or (z) any other proposal or
transaction involving the Company, which is intended by any Stockholder
to, or which ERP notifies any Stockholder that ERP reasonably believes
will, impede, frustrate, prevent, delay or nullify (A) the ability of
the Company to consummate the Merger or (B) any of the transactions
contemplated by this Agreement or the Agreement and Plan of Merger.
(c) Except as contemplated by the Formation Agreement,
Stockholder agrees not to (i) offer to sell, sell, transfer, encumber,
pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any contract, option or other
arrangement with respect to or consent to the Transfer of, the Subject
Shares or any interest therein to any person other than pursuant to the
terms of the Merger, (ii) except as contemplated hereby, grant any
proxies or powers of attorney with respect to the Subject Shares,
deposit any Subject Shares into a voting trust or enter into any voting
arrangement with respect to the Subject Shares, or any interest in the
foregoing, except with ERP, (iii) take any action that would make any
representation or warranty of such Stockholder contained herein untrue
or incorrect to have the effect of preventing or disabling the
Stockholder from performing any of its obligations under this Agreement
or (iv) commit or agree to take any of the foregoing actions.
(d) Stockholder hereby irrevocably waives and agrees not to
exercise any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
3
<PAGE> 31
(e) Stockholder agrees with, and covenants to, ERP that the
Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Subject Shares, unless such transfer is made in
compliance with this Agreement.
(f) Stockholder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to the sale, voting or
other disposition of the Existing Shares or a business combination
transaction involving the Company. Stockholder shall not directly or
indirectly, through any employee of the Company, representative, agent
or other person, solicit or encourage the initiation or submission of
any direct or indirect inquiries, proposals or offers regarding any
acquisition, merger, takeover bid or sale of all or any of the assets
or any shares of capital stock of the Company, whether or not in
writing and whether or not delivered to the Company or to the
stockholders of the Company generally (including, without limitation,
by way of a tender offer) by any party other than ERP or its affiliates
(any such inquiry, proposal or offer being referred to herein as an
"Acquisition Proposal"); provided, however, that nothing contained in
this Agreement shall prevent any Stockholder from considering or
negotiating, solely in his capacity as a director of the Company, an
unsolicited, bona fide Acquisition Proposal in accordance with Section
5.1 of the Agreement and Plan of Merger. Stockholder will immediately
notify ERP, orally and in writing, of any direct or indirect contact
related in any way to an Acquisition Proposal, including the identity
of the person involved in such contact, or on whose behalf such contact
is made, and the terms and conditions of any Acquisition Proposal made.
(g) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS ERP AND ANY
DESIGNEE OF ERP, AND EACH OF THEM INDIVIDUALLY, STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) PROXY AND
ATTORNEY-IN-FACT WITH FULL POWER OF SUBSTITUTION TO VOTE THE SUBJECT
SHARES OF STOCKHOLDER AS INDICATED IN SECTION 3(A) AND 3(B) ABOVE. THE
STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION
OF THIS AGREEMENT) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION TO REVOKE AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY STOCKHOLDER WITH RESPECT TO SUCH STOCK HOLDER'S SUBJECT
SHARES.
4. FORMATION AGREEMENT. Notwithstanding anything herein to the
contrary, the Stockholder's execution of the Formation Agreement shall not be
deemed to be a violation or breach of this Agreement in any manner.
5. 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
4
<PAGE> 32
instruments as ERP may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
6. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successor and assigns.
7. TERMINATION. This Agreement shall terminate, and no party shall have
any rights or obligations hereunder and this Agreement shall become null and
void and have no further effect upon the Effective Time or sooner termination of
the Agreement and Plan of Merger pursuant to Section 8.1 thereof, and the
payment, if required, by the Company to ERP of the Break-Up Fee or the ERP
Liquidated Damages Amount. Nothing in this Section 7 shall relieve any party of
liability for breach of this Agreement.
8. COSTS AND EXPENSES. All costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses.
9. 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 ERP in
accordance with Section 9.2 of the Agreement and Plan of Merger and to
Stockholder at its address set forth on the signature page of this
Agreement (or at such other address for a party as shall be specified
by like notice).
(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) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to
any party. Upon such determination that any
5
<PAGE> 33
term or other 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 a mutually acceptable manner in order that the
transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
(e) 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 one party, it being understood that each party need not sign the
same counterpart.
(f) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including the documents and instruments referred to herein)
(i) constitutes the entire agree ment 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.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Ohio regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
10. 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 Ohio or in an Ohio 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 located in the State of Ohio or any Ohio state
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 Ohio or an Ohio 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. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
6
<PAGE> 34
11. JOINDER. If the Stockholder resides in a community property state,
the Stockholder has delivered to ERP a spousal joinder or consent in the form
heretofore provided by ERP.
(signature page follows)
7
<PAGE> 35
IN WITNESS WHEREOF, ERP has caused this Agreement to be signed by its
general partner and Stockholder has signed this Agreement, all as of the date
first written above.
ERP OPERATING LIMITED
PARTNERSHIP
By: Equity Residential Properties Trust, its
general partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STOCKHOLDER
By:
-----------------------------------------
Name: Blair D. Neller
Address: 340 E. Palm Lane
Suite 230
Phoenix, Arizona 85004
By:
-----------------------------------------
Name: Blair D. Neller, Trustee for the
Neller Trust
Address: 340 E. Palm Lane
Suite 230
Phoenix, Arizona 85004
Number of Existing Shares: 705,709
8
<PAGE> 36
JOINDER OF SPOUSE
I, Elizabeth P. Neller, spouse of Blair D. Neller, acknowledge that I
have read the Stockholder Voting Agreement and the Formation and Investment
Agreement, each dated as of January 13, 2000 both of which this Joinder is
attached as an addendum (each an "Agreement," and together the "Agreements") and
that I know the contents thereof. All capitalized terms not defined herein shall
have the meanings set forth in the Agreements.
I am aware that by the provisions of the Stockholder Voting Agreement
(a) my spouse is required to vote his Subject Shares in favor of the Merger, the
adoption by the Company of the Agreement and Plan of Merger and the approval of
the terms thereof and the transactions thereby; (b) certain other restrictions
are imposed upon the sale, transfer or other disposition of the Subject Shares;
(c) my spouse irrevocably waives and agrees not to exercise any rights of
appraisal or rights to dissent from the Merger that my spouse may have; (d) my
spouse must terminate any activities, negotiations or discussions with any
parties heretofore conducted with respect to the sale, voting or other
disposition of the Existing Shares or a business combination transaction
involving the Company; and (e) my spouse granted and appointed ERP and any
designee of ERP, his irrevocable (until termination of the Agreement) proxy and
attorney-in-fact to vote his Subject Shares.
I am aware that by the provisions of the Formation and Investment
Agreement (a) my spouse has agreed, subject to certain conditions, to contribute
certain of his shares of GBR Common Stock to Newco; (b) the shares of Class B
Common Stock that he would receive in exchange therefor will be subject to
certain restrictions on transfer (whether voluntary or involuntary) as set forth
in the Stockholders Agreement; (c) my spouses' shares of Class B Common Stock
are subject to certain buy-back provisions whereby ERP or an affiliate of ERP or
others may buy-back his shares of Class B Common Stock; (d) my spouses' shares
of Class B Common Stock will be subject to certain "drag-along" rights; (e) my
spouse will deposit certain shares of his GBR Common Stock into an escrow
account; and (f) if my spouse is terminated by the Company for any reason
(whether by death, disability, termination or otherwise), ERP may be entitled to
purchase his shares of Class B Common Stock at pre-determined valuation
I hereby agree that my interest, if any, in the Existing Shares subject
to the Stockholder Voting Agreement and the Formation and Investment Agreement
shall be irrevocably bound by the Agreement. I understand that the execution of
this Joinder of Spouse shall not create any right or interest in any of the
shares of stock described herein.
I am aware that the legal and related matters contained in the
Agreements are complex and that I am free to seek independent professional
guidance or counsel with respect to this Joinder. I have either sought such
guidance or counsel or determined after reviewing the Agreements carefully that
I will waive such right.
[signature page follows]
<PAGE> 37
Dated as of the 13th day of January, 2000.
By:
-----------------------------
Elizabeth P. Neller
