Exhibit 99.5
FORM OF
VOTING AGREEMENT
[NAME OF TRUSTEE/OFFICER]
THIS VOTING AGREEMENT (this "Agreement") is entered into as of May 13,
2003 by and among CROWN AMERICAN REALTY TRUST, a Maryland real estate investment
trust ("Crown"), CROWN AMERICAN PROPERTIES, L.P., a Delaware limited partnership
("Crown Partnership"), and [NAME OF TRUSTEE/OFFICER] (such person, the "PREIT
Securityholder").
WHEREAS, Pennsylvania Real Estate Investment Trust, a Pennsylvania
business trust ("PREIT"), PREIT Associates, L.P., a Delaware limited partnership
("PREIT Partnership"), Crown and Crown Partnership have entered into an
Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"), pursuant to which, among other things, Crown will merge with and
into PREIT (the "Merger"), with PREIT continuing as the surviving entity of the
Merger, and PREIT Partnership and Crown Partnership will consummate certain
transactions contemplated in connection with the Merger, all upon the terms and
subject to the conditions set forth in the Merger Agreement (capitalized terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement);
WHEREAS, the PREIT Securityholder (i) is the owner of, and has sole
voting power or sole power to direct the voting of, such number of issued and
outstanding common shares of beneficial interest, par value $1.00 per share, of
PREIT ("PREIT Common Shares") set forth opposite the PREIT Securityholder's name
on Schedule 1 hereto (all such shares, together with the associated rights (the
"PREIT Rights") issued pursuant to the terms of that certain Rights Agreement,
dated as of April 30, 1999 between PREIT and American Stock Transfer & Trust
Company, as rights agent, and any shares hereafter acquired by such PREIT
Securityholder, including any shares acquired upon exercise of any Covered PREIT
Options (as defined below) or any redemption rights with respect to the Covered
PREIT OP Units (as defined below) and the associated PREIT Rights with respect
to any such shares, the "Covered PREIT Common Shares") and (ii) has been granted
such number of options to purchase PREIT Common Shares or Partnership Interests
(as such term is defined in that certain First Amended and Restated Agreement of
Limited Partnership of PREIT Partnership dated as of September 30, 1997, as
amended and as may be further amended and/or restated from time to time (the
"PREIT Partnership Agreement") of PREIT Partnership (the "PREIT OP Units") (the
PREIT OP Units issued upon the exercise of any such option being referred to as
the "Covered PREIT OP Units")) set forth opposite the PREIT Securityholder's
name on Schedule 1 hereto (all such options, together with any options to
purchase PREIT Common Shares or PREIT OP Units hereafter granted to the PREIT
Securityholder, the "Covered PREIT Options", and together with the Covered PREIT
Common Shares and the Covered PREIT OP Units, the "Covered PREIT Securities");
and
WHEREAS, in connection with and as an inducement to Crown and Crown
Partnership to enter into the Merger Agreement, the PREIT Securityholder desires
to execute and deliver this Agreement in such person's capacity as the owner
with sole voting power or sole power to direct the voting of the Covered PREIT
Common Shares.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree, intending to be legally bound hereby, as
follows:
SECTION 1. Disposition of PREIT Securities
(a) During the period from the execution and delivery by the parties of
this Agreement through the earlier of (i) the effective time of the Merger or
(ii) the termination of the Merger Agreement in accordance with the terms
thereof (such period hereinafter referred to as the "Term"), the PREIT
Securityholder shall not, directly or indirectly, and shall cause each record
holder of any of the Covered PREIT Securities not to, directly or indirectly,
(a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other agreement, oral or written, with respect to
the sale, transfer, pledge, encumbrance, assignment or other disposition of, any
Covered PREIT Securities, (b) grant any proxies for any Covered PREIT Common
Shares or Covered PREIT OP Units with respect to any matters described in
paragraph (a) or (b) of Section 2 hereof (other than a proxy directing the
holder thereof to vote the Covered PREIT Common Shares or Covered PREIT OP Units
in a manner required by paragraphs (a) and (b) of Section 2 hereof), (c) deposit
any Covered PREIT Common Shares or Covered PREIT OP Units into a voting trust or
enter into a voting agreement with respect to any Covered PREIT Common Shares or
Covered PREIT OP Units with respect to any of the matters described in paragraph
(a) or (b) of Section 2 hereof (other than a voting agreement under which the
applicable parties agree to vote the Covered PREIT Common Shares or Covered
PREIT OP Units in a manner required by paragraphs (a) or (b) of Section 2
hereof), or tender any Covered PREIT Common Shares or Covered PREIT OP Units in
a transaction other than a transaction contemplated by the Merger Agreement, or
(d) take any action which is intended to have the effect of preventing or
disabling such PREIT Securityholder from performing such PREIT Securityholder's
obligations under this Agreement; provided, however, that nothing herein shall
prevent the sale, transfer, pledge, encumbrance, assignment or other disposition
of any of such Covered PREIT Securities, provided that the purchaser,
transferee, pledgee or assignee thereof agrees in writing, prior to such sale,
transfer, pledge, encumbrance, assignment or other disposition, to be bound by
the terms of this Agreement.
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(b) Notwithstanding any restrictions contained in this Agreement to the
contrary:
(i) the parties acknowledge and agree that the Covered PREIT
Securities identified on Schedule 1 as having been pledged
prior to the date hereof have already been pledged and the
lenders to which such Covered PREIT Securities have been
pledged have not agreed to be bound by this Agreement;
(ii) any sale, transfer, assignment or other disposition of all or
any portion of the Covered PREIT Securities in connection with
the transactions contemplated by the Merger Agreement or by a
lender or other secured party in connection with any
foreclosure or other exercise of remedies available to such
lender or secured party shall not constitute a breach or
violation of this Agreement; and
(iii) any lender or other third party transferee who may acquire all
or a portion of the Covered PREIT Securities as a result of
foreclosure by the lender or the exercise of any other
remedies available to such lender with respect to the pledge,
shall not be bound by this Agreement.
SECTION 2. Voting
(a) During the Term, the PREIT Securityholder shall cast or cause to be
cast all votes attributable to the Covered PREIT Common Shares at any annual or
special meeting of shareholders of PREIT, including any adjournments or
postponements thereof, or in connection with any written consent or other vote
of PREIT shareholders, in favor of adoption of the Merger Agreement and approval
of the Merger and any other transactions contemplated by the Merger Agreement
(collectively, the "Transactions").
(b) With respect to all Covered PREIT OP Units, the PREIT
Securityholder hereby consents to the Merger and the other Transactions pursuant
to Section 8.3 of the PREIT Partnership Agreement and other applicable
provisions thereof; provided, that the foregoing consent shall be rescinded if
the Merger Agreement is terminated. During the Term, the PREIT Securityholder
shall cast or cause to be cast all votes attributable to the Covered PREIT OP
Units at any meeting of the partners of PREIT Partnership at which, and in
connection with any written consent or other vote with respect to which, such
PREIT Securityholder is entitled to vote in favor of adoption of the Merger
Agreement, approval of the Merger and the other Transactions.
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(c) The PREIT Securityholder will retain the right to vote the Covered
PREIT Common Shares and Covered PREIT OP Units, in the PREIT Securityholder's
sole discretion, on all matters other than those described in paragraphs (a) or
(b) of this Section 2, and the PREIT Securityholder may grant proxies and enter
into voting agreements or voting trusts for the Covered PREIT Common Shares and
Covered PREIT OP Units in respect of such other matters.
SECTION 3. Representations and Warranties of the PREIT Securityholder
The PREIT Securityholder hereby represents and warrants to Crown and
Crown Partnership as follows:
(a) The PREIT Securityholder has the legal capacity, power, authority
and right (contractual or otherwise), to enter into this Agreement and to
perform its obligations hereunder. This Agreement has been duly executed and
delivered by the PREIT Securityholder and constitutes a valid and binding
obligation of the PREIT Securityholder, enforceable against the PREIT
Securityholder in accordance with and subject to its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
(b) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated will not conflict with or violate any
court order, judgment or decree applicable to the PREIT Securityholder, or
conflict with or result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under any
contract or agreement to which the PREIT Securityholder is a party or by which
the PREIT Securityholder is bound or affected, other than where any such
conflicts, violations, breaches or defaults would not (individually or in the
aggregate) materially and adversely affect the PREIT Securityholder's ability to
perform any of such PREIT Securityholder's obligations under this Agreement. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any federal, state or local government or any court, administrative
or regulatory agency or commission or other governmental authority or agency,
domestic or foreign (a "Governmental Entity"), is required by or with respect to
the PREIT Securityholder in connection with the execution and delivery of this
Agreement by the PREIT Securityholder or the consummation by the PREIT
Securityholder of the transactions contemplated by this Agreement.
(c) The PREIT Securityholder is the lawful owner of the Covered PREIT
Common Shares, Covered PREIT Options and Covered PREIT OP Units set forth
opposite the PREIT Securityholder's name on Schedule 1 hereto, free and clear of
all Liens (except as set forth on Schedule 1 hereto), and has not sold,
hypothecated, transferred or otherwise disposed of (or agreed to sell,
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hypothecate, transfer or dispose of) any of the Covered PREIT Securities (except
as set forth on Schedule 1 hereto). Except for the Covered PREIT Securities set
forth opposite the name of the PREIT Securityholder on Schedule 1 hereto, the
PREIT Securityholder does not in its individual capacity have sole voting power
over or sole power to direct the voting of any other securities of PREIT.
SECTION 4. Further Assurances
During the Term, the PREIT Securityholder shall make such filings as
may be required under the Securities Exchange Act of 1934, as amended, and, upon
the request of Crown, execute and deliver such documents and take such actions
as Crown may reasonably deem necessary to effectuate the purposes of this
Agreement.
SECTION 5. Interpretation
When a reference is made in this Agreement to a Section, such reference
shall be to a Section of 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. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
SECTION 6. 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 counterparts have been signed by each of the parties and
delivered to the other party.
SECTION 7. Entire Agreement; No Third Party Beneficiaries
This Agreement (including the Schedules hereto) (a) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter of this
Agreement and (b) is not intended to confer upon any Person other than the
parties hereto any rights or remedies.
SECTION 8. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, REGARDLESS OF THE LAWS THAT MIGHT
OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
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SECTION 9. Assignment
Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned or delegated, in whole or in part, by
operation of law or otherwise by any of the parties without the prior written
consent of the other parties. 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.
SECTION 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 federal court located in Pennsylvania or in any state
court located in Pennsylvania 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 (a) consents to submit itself (without making such submission exclusive)
to the personal jurisdiction of any federal court located in Pennsylvania or any
state court located in Pennsylvania in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement and (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court.
SECTION 11. Severability
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
SECTION 12. Amendment
This Agreement shall not be amended, altered, or modified except by an
instrument in writing duly executed and delivered by the party against whom
enforcement of the amendment, alteration or modification is sought.
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SECTION 13. No Waiver
No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Agreement shall impair any such right,
power or privilege or be construed as a waiver of any default or any
acquiescence thereto. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege.
No waiver shall be valid against any party hereto unless made in writing and
signed by the party against whom enforcement of such waiver is sought, and then
only to the extent expressly specified therein. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 14. Capacity of PREIT Securityholder
The PREIT Securityholder has executed this Agreement solely in such
PREIT Securityholder's capacity as a securityholder of PREIT or PREIT
Partnership and not in such PREIT Securityholder's capacity as an officer,
director, trustee, employee or manager of PREIT or PREIT Partnership or any of
their Affiliates. Without limiting the foregoing, nothing in this Agreement
shall limit or affect any actions taken by such PREIT Securityholder in such
PREIT Securityholder's capacity as an officer, director, trustee, employee or
manager of PREIT or PREIT Partnership or any of their Affiliates.
SECTION 15. Termination
This Agreement shall automatically terminate upon the termination of
the Merger Agreement in accordance with the terms thereof. None of the
representations, warranties, covenants or agreements in this Agreement shall
survive the termination of this Agreement; provided, however, that nothing
contained herein shall release the PREIT Securityholder from any liability
arising from any breach of any of the PREIT Securityholder's representations,
warranties, covenants or agreements in this Agreement.
SECTION 16. Notices
All notices, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be delivered personally, sent by
overnight courier (providing proof of delivery) to the parties or sent by
telecopy (providing confirmation of transmission) at the addresses or telecopy
number (or at such other address or telecopy number for a party as shall be
specified by like notice) from such party as set forth on the address page
hereof. All notices shall be deemed given only when actually received.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Voting Agreement, or have caused this Voting Agreement to be duly executed
and delivered in their names and on their behalf, as of the date first written
above.
CROWN AMERICAN REALTY TRUST
By:
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Name:
Title:
CROWN AMERICAN PROPERTIES, L.P.
By: Crown American Realty Trust,
its general partner
By:
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Name:
Title:
Address for Notice to Crown American
Realty Trust and Crown American
Properties, L.P.:
Pasquerilla Plaza
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Number Street
Johnstown, PA 15901
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City State Zip Code
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[NAME OF TRUSTEE/OFFICER]
Address for Notice to PREIT Securityholder:
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Number Street
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City State Zip Code
Schedule of Signatories
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The following is a list of the individuals who signed this form of
voting agreement, together with the information set forth on the Schedule 1 to
each of their respective agreements:
# of PREIT
Common # of PREIT # of PREIT Terms of
Name of Securityholder Shares Options OP Units Pledgee Pledge
- ---------------------- ---------- ----------- ----------- ------- --------
Ronald Rubin 107,429 150,000 569,584* None None
George Rubin 50,916 75,000 276,855* None None
Jonathan B. Weller 63,161 160,000 0 None None
Edward A. Glickman 25,000 150,000 45,436 None None
Joseph F. Coradino 20,241 30,000 85,756 None None
Douglas S. Grayson 22,854 20,000 18,388 None None
Jeffrey A. Linn 35,443 50,000 0 None None
Bruce Goldman 10,574 0 0 None None
David J. Bryant 12,859 10,000 4,744 None None
Raymond J. Trost 11,736 10,000 0 None None
* Includes 49,006 PREIT OP Units held by a trust of which Ron Rubin and
George Rubin are beneficiaries.