EXHIBIT 99.4
VOTING AGREEMENT
This VOTING
AGREEMENT is entered into on June 5, 2005, by and among
ProLogis, a Maryland real estate investment trust (“
ProLogis ”), and each of the shareholders set forth in
the signature pages hereto (each, a “ Shareholder
” and, collectively, the “ Shareholders
”).
WHEREAS, each
Shareholder is the beneficial owner of the number of shares of
common stock, $.01 par value per share (the “ Common
Stock ”), of Catellus Development Corporation, a Delaware
corporation (“ Catellus ”), set forth opposite
such Shareholder’s name on Schedule I (including
any shares of Common Stock acquired by such Shareholder after the
date hereof, the “ Securities ”);
WHEREAS, ProLogis,
Catellus and Palmtree Acquisition Corporation, a Delaware
corporation (“ Merger Sub ”), have entered into
an Agreement and Plan of Merger, dated as of the date hereof (the
“ Merger Agreement ”; capitalized terms used but
not defined in this Agreement shall have the meanings ascribed to
them in the Merger Agreement), which provides for the merger of
Catellus with and into Merger Sub (the “ Merger
”); and
WHEREAS, as a
condition of ProLogis to enter into the Merger Agreement, it is a
requirement of the Merger Agreement that each Shareholder enters
into this Agreement.
NOW
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as
follows:
1.
Agreement to Vote; Proxy .
(a) At such time as
Catellus conducts a meeting of, solicits written consents from, or
otherwise seeks a vote of, its stockholders with respect to any of
the following, each Shareholder agrees, subject to
Section 12 , to vote all of the Securities, as
applicable, beneficially owned by him or her or with respect to
which he or she exercises voting power (directly or indirectly),
(i) in favor of approval of the Merger Agreement and all other
actions contemplated by the Merger Agreement or otherwise necessary
or desirable for the consummation of the Merger and
(ii) against any Competing Transaction (as such term is
defined in the Merger Agreement).
(b) Each
Shareholder hereby agrees, upon the request of ProLogis, to grant
to ProLogis an irrevocable proxy (the “ Irrevocable
Proxy ”), until such time as this Agreement is terminated
pursuant to Section 12 , to allow ProLogis to vote such
Shareholder’s Securities, as applicable, in the manner
described in, and for the purposes contemplated by,
Section 1(a) . Each Shareholder further agrees to
deliver promptly to ProLogis such additional proxies and other
documents as may be reasonably requested by ProLogis to allow
ProLogis to exercise such voting power. Each Shareholder will
retain at all times the right to vote his or her Securities, in
such Shareholder’s sole discretion, on all matters other than
those set forth in Section 1(a) which are at any time
or from time to time presented for a vote to Catellus’s
stockholders generally, and in the event that an
Irrevocable Proxy is granted as hereinabove
provided, ProLogis agrees to vote on all such other matters as
directed in writing by such Shareholder.
2.
Waiver of Dissenters’ Rights . Each Shareholder hereby
agrees to waive any dissenters’ rights which may be available
under applicable Delaware law in connection with the
Merger.
3.
Representations, Warranties and Covenants of Shareholder .
Each Shareholder represents and warrants to, and agrees with,
ProLogis that:
(a) this
Agreement has been duly executed and delivered by such Shareholder
and constitutes a valid and legally binding obligation of such
Shareholder, enforceable against such Shareholder in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, and similar laws relating to or affecting
creditors’ rights generally and general equitable principles
(whether considered in a proceeding in equity or at law), in each
case now or hereafter in effect;
(b) such
Shareholder has all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby;
(c) as of the
date of this Agreement, such Shareholder is the direct or indirect
beneficial owner of the Securities set forth opposite such
Shareholder’s name on Schedule I ;
(d) on the date
hereof, such Shareholder has, and such Shareholder will have at all
times up to the termination of this Agreement, the sole power to
vote his or her Securities, as applicable; and
(e) such
Shareholder will not sell, transfer, hypothecate, pledge, encumber
or otherwise dispose of (“ Transfer ”) any of
his or her Securities or any interests therein, or grant any option
or other right with respect thereto, without the prior written
consent of ProLogis; provided , however , such
Shareholder shall be permitted to Transfer those Securities
beneficially owned by him or her to any trust,
