AGREEMENT AND PLAN OF
MERGER
EQUITY OFFICE PROPERTIES
TRUST,
EOP OPERATING LIMITED
PARTNERSHIP,
BLACKHAWK ACQUISITION
TRUST
BLACKHAWK ACQUISITION
L.P.
Dated as of January 24,
2007
THIS
AMENDMENT NO. 2 TO THE AGREEMENT AND PLAN OF MERGER, dated as of
January 24, 2007 (this “ Amendment ”), is
entered into by and among Equity Office Properties Trust, a
Maryland real estate investment trust (the “ Company
”), EOP Operating Limited Partnership, a Delaware limited
partnership (the “ Operating Partnership ”, and
together with the Company, the “ Company Parties
”), Blackhawk Parent LLC, a Delaware limited liability
company (“ Parent ”), Blackhawk Acquisition
Trust, a Maryland real estate investment trust and a wholly-owned
subsidiary of Parent (“ MergerCo ”), and
Blackhawk Acquisition L.P., a Delaware limited partnership whose
general partner is MergerCo (“ Merger Partnership
” and together with Parent and MergerCo, the “ Buyer
Parties ”). Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Agreement and Plan
of Merger, dated as of November 19, 2006, as amended prior to
the date of this Amendment, by and among the Company Parties and
the Buyer Parties (the “ Merger Agreement
”).
WHEREAS,
the parties desire to amend the Merger Agreement so as to, among
other things, increase the Company Common Share Merger
Consideration from $48.50 to $54.00 , increase the Operating
Partnership Cash Merger Consideration from $48.50 to $54.00 and
increase the liquidation preference of the Class H Preferred
Units from $48.50 to $54.00;
WHEREAS,
the Board of Trustees of the Company, on behalf of the Company and
on behalf of the Company on behalf of the Operating Partnership,
and each of the Buyer Parties have approved this
Amendment;
WHEREAS,
the Board of Trustees of the Company recommends the approval of the
Merger Agreement, as amended by this Amendment, and the Company
Merger by the Company’s shareholders; and
WHEREAS,
the parties have agreed to amend the Merger Agreement as provided
in this Amendment.
NOW,
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Amendment of Section 3.01 . The reference to
“$48.50” in Section 3.01(c) of the Merger
Agreement is hereby amended to be “$54.00”.
2.
Additional Representation and Warranty of the Company and the
Operating Partnership . Section 4.19 of the Merger
Agreement is hereby amended and restated in its entirety to read as
follows:
“(a)
The Company has received an opinion of the Company Financial
Advisor to the effect that as of November 19, 2006
(i) the Company Common Share Merger Consideration (as such
term was defined in this Agreement as of November 19, 2006) to
be received by the holders of the Company Common Shares is fair
from a financial point of view to the holders of such shares, other
than Parent and its affiliates, and (ii) the Operating
Partnership Cash Merger Consideration (as such term was defined in
this Agreement as of November 19, 2006) to be received by the
holders of Class A Units (other than the Company or any of its
Subsidiaries) is fair from a financial point of view
2
to such holders
(assuming such holders receive the Operating Company Merger Cash
Consideration). The Company has made available to Parent a complete
and correct copy of such opinion (or, if not delivered in writing
to the Company prior to November 19, 2006, the Company will
promptly make such opinion available to Parent upon
receipt).
(b)
The Company has received an opinion of the Company Financial
Advi
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