EXHIBIT 9.1
FORM OF VOTING AGREEMENT
This VOTING AGREEMENT, is made as of the day of May, 2002, (this
"Voting Agreement"), by and among JAMESTOWN 1290, L.P., a Delaware limited
partnership ("Jamestown"), and ___________________, a _________________ and a
stockholder ("Stockholder") of Metropolis Realty Trust, a Maryland corporation
having an address at c/o Capital Trust, Inc., 410 Park Avenue, 14th Floor, New
York, NY 10022 ("Metropolis").
RECITALS:
Jamestown and Metropolis have entered into an Amended and Restated
Purchase Agreement, dated as of May 7, 2002 (the "Purchase Agreement"), for the
purchase and sale of certain improved real property located 1290 Avenue of the
Americas, New York, New York (the "Property"), subject to the terms and
conditions of the Purchase Agreement (the "Transaction"). Unless otherwise
indicated, capitalized terms not defined herein have the meanings given to them
in the Purchase Agreement.
As of the date hereof, Stockholder is the beneficial owner of, and has
the power to vote, or cause to be voted, such number of shares of Common Stock
of Metropolis as is indicated on Schedule 1 to this Voting Agreement
(collectively, the "Shares") and the Persons (as defined herein) set forth on
such Schedule 1 are the recordholders, custodians and/or nominees of such number
of Shares also indicated such Schedule 1.
Jamestown desires Stockholder to agree, and Stockholder is willing to
agree, to vote the Shares and any other such shares of capital stock of
Metropolis acquired by such Stockholder so as to facilitate consummation of the
Transaction.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto covenant and agree as follows:
1. VOTING OF SHARES.
(a) Voting Agreement. Subject to the terms and conditions of this
Voting Agreement, at every meeting of the stockholders of Metropolis called with
respect to any of the following, and at every adjournment or postponement
thereof, and on every action or approval by written consent of the stockholders
of Metropolis with respect to any of the following, Stockholder shall vote or
cause (including by the Proxy, as hereinafter defined) to be voted, and shall
direct any recordholder, custodian or nominee possessing the power or ability to
vote, the Shares and any New Shares (as defined herein) in accordance with the
transactions set forth on Exhibit A hereto (the "Approved Transactions").
(b) Proxy. Concurrently with the execution of this Voting
Agreement, Stockholder shall deliver to Jamestown a proxy in the form attached
hereto as Exhibit B, which shall be irrevocable (except as set forth in
subsection (d) below) to the fullest extent permitted by law, solely with
respect to the Shares of which Stockholder is the record owner and the
beneficial owner (as set forth on Schedule 1 to this Voting Agreement) and
referred to therein (the "Proxy").
(c) New Shares.
(i) Stockholder agrees that any shares of capital stock of
Metropolis (or any entity in which Stockholder receives shares of capital stock
in exchange therefor) that Stockholder (A) owns beneficially and has the power
to vote on the date hereof and should have listed on Schedule 1 to this Voting
Agreement or (B) purchases or with respect to which Stockholder otherwise
acquires record or beneficial ownership after the execution of this Voting
Agreement and prior to the Expiration Date (as hereinafter defined) (the
foregoing clauses (A) and (B) together "New Shares") shall be subject to the
terms and conditions of this Voting Agreement to the same extent as if they
constituted Shares.
(ii) After the execution of this Voting Agreement until the
Expiration Date, Stockholder shall execute or cause to be executed such further
proxies as may be requested by Jamestown with respect to any New Shares of which
Stockholder acquires or discovers beneficial and record ownership, and
Stockholder shall promptly notify Jamestown upon acquiring or discovering
beneficial ownership of any additional securities of Metropolis.
(d) Special Committee. Notwithstanding the provisions of this
Section 1 to the contrary, if prior to Stockholder casting its vote at a meeting
of the stockholders as described in Section 1(a), (i) Stockholder shall be
advised in writing by the Special Committee of the Board of Directors of
Metropolis (the "Special Committee") that the Purchase Agreement has been
terminated in accordance with its terms, or (ii) changes or modifications have
been made to the Purchase Agreement or the transactions contemplated thereby or
any waiver has been granted under the Purchase Agreement, in each case which
would have a material adverse effect on the economic benefits to be realized by
Stockholder pursuant to the Purchase Agreement as in effect on the date hereof,
then Stockholder shall have the right, but not the obligation, by giving written
notice to Jamestown at any time on or prior to the scheduled date of the
Metropolis's meeting of its stockholders (as provided in the notice of such
meeting in the SEC Disclosure Documents (as defined in the Purchase Agreement)),
to terminate this Voting Agreement, and revoke its Proxy, without voting the
Shares and the New Shares as contemplated by this Voting Agreement.
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2. TRANSFER OF SHARES.
(a) No Disposition or Encumbrance of Shares. Stockholder
covenants and agrees that, from the date of this Voting Agreement until the
Expiration Date, Stockholder will not, directly or indirectly: (i) offer, sell,
offer to sell, contract to sell, pledge, grant any option to purchase or
otherwise dispose of or transfer (or permit or announce any offer, sale, offer
of sale, contract of sale or grant of any option for the purchase of, or permit
or announce any other disposition or transfer of) any of the Shares, or any
interest in any of the Shares, to any other individual, corporation (including
any non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, labor union,
or other entity or governmental body (any "Person") other than Jamestown; (ii)
create or permit to exist any encumbrance on or otherwise affecting any of the
Shares; or (iii) reduce such Stockholder's beneficial ownership of, interest in
or risk relating to any of the Shares, unless the transferee agrees to be bound
to the terms hereof.
(b) Transfer of Voting Rights. Stockholder covenants and agrees
that, from the date of this Voting Agreement until the Expiration Date,
Stockholder will not deposit any of the Shares into a voting trust or grant a
proxy (other than the Proxy granted in connection with this Voting Agreement) or
enter into a voting agreement or similar contract with respect to any of the
Shares.
3. WAIVER OF APPRAISAL RIGHTS.
Stockholder hereby irrevocably and unconditionally waives any rights of
appraisal, dissenters' rights or similar rights that Stockholder may have with
respect to the Shares and the New Shares, and will instruct any recordholder,
custodian or nominee set forth on Schedule 1 of this Voting Agreement to waive
any such rights that it may have with respect to the Shares and the New Shares,
in connection with the Transaction and the Merger (as defined on Exhibit A
hereto).
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
(a) Ownership of Shares. Stockholder represents and warrants that
Stockholder (i) is the beneficial owner of the Shares as set forth on Schedule 1
to this Voting Agreement and has the sole right to vote, or, by directing any
recordholders, custodian or nominee of the Shares to control the vote of, the
Shares, which at the date of this Voting Agreement are free and clear of any
liens, claims, options, charges, or other encumbrances and (ii) does not own,
either beneficially or of record, any shares of capital stock of Metropolis
other than the Shares.
(b) No Conflict. The execution and delivery of this Voting
Agreement and the Proxy by Stockholder do not, and the performance of this
Voting Agreement and the Proxy by Stockholder will not: (i) conflict with or
violate any legal requirement, order, decree, or judgment applicable to
Stockholder or by which Stockholder or any of Stockholder's properties is bound
or affected; or (ii) result in any breach of or constitute a default (with
notice or lapse of time, or both) under, or give to others any rights of
termination, amendment, acceleration, or cancellation of, or result in the
creation of an encumbrance on or otherwise affecting any of the Shares pursuant
to, any contract to which Stockholder is a party or by which Stockholder or any
of Stockholder's properties is bound or affected. The execution and delivery of
this Voting Agreement and the Proxy by Stockholder do not, and the performance
of his obligations under this Voting Agreement and the granting of the Proxy by
Stockholder will not, require any consent of any Person.
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(c) Power; Enforceability. Stockholder has the legal capacity,
power, and authority to enter into and perform all of Stockholder's obligations
under this Voting Agreement. Stockholder has all requisite power and capacity to
execute and deliver this Voting Agreement and the Proxy and to perform his,
hers, or its obligations under this Voting Agreement and under the Proxy. This
Voting Agreement and the Proxy have been duly executed and delivered by
Stockholder and assuming the due authorization, execution and delivery by
Jamestown, constitute the legal, valid, and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their respective terms,
subject to (i) laws of general application relating to bankruptcy, insolvency,
and the relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief, and other equitable remedies. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which
Stockholder is trustee whose consent is required for the execution and delivery
of this Voting Agreement or the consummation by Stockholder of the transactions
contemplated by this Voting Agreement.
(d) Continuous Warranty. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date, and will be accurate in all respects as of the date of the
consummation of the Transaction as if made on that date.
(e) No Other Proxy. Stockholder represents that any proxies
heretofore given in respect of the Shares, if any, are not irrevocable, and that
such proxies (other than the Proxy) are hereby revoked.
5. COVENANTS OF STOCKHOLDER.
Stockholder hereby covenants and agrees to use its reasonable efforts
to cooperate fully with Jamestown and to execute and deliver any additional
documents reasonably necessary and to use its reasonable efforts to take such
further actions, that in the reasonable opinion of Jamestown may be necessary to
carry out the intent of this Voting Agreement. Stockholder hereby covenants and
agrees to refrain from, directly or indirectly, soliciting or encouraging any
offer from any Person concerning the possible sale of assets, change of control,
or acquisition of Metropolis by any other Person, or any consolidation or merger
of Metropolis with or into any other Person.
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6. CONSENT AND WAIVER.
Stockholder hereby gives any consents or waivers that are reasonably
required for the consummation of any or all of the Approved Transactions under
the terms of (i) any agreements between Stockholder and Metropolis or (ii)
pursuant to any other rights Stockholder may have.
7. TERMINATION.
This Voting Agreement and any Proxy granted in connection with this
Voting Agreement shall terminate and shall have no further force or effect upon
the earlier of (i) the date of the Closing of the Transaction; and (ii) the date
the Purchase Agreement is terminated in accordance with its terms. Such
termination date of this Voting Agreement is referred to herein as the
"Expiration Date."
8. NO RESTRAINT ON DIRECTOR ACTION.
This Voting Agreement is intended to bind Stockholder only with respect
to the specific matters set forth in this Voting Agreement, and shall not
prohibit any Stockholder from acting in accordance with his or her fiduciary
duties as an officer or director of Metropolis. Stockholder will retain at all
times the right to vote such Stockholder's Shares, in such Stockholder's sole
discretion, on all matters other than those set forth in Section 1(a) of this
Voting Agreement that are at any time or from time to time presented to
Metropolis's stockholders generally.
9. MISCELLANEOUS.
(a) Survival of Representations, Warranties and Agreements. None
of the representations, warranties, and agreements made by Stockholder in this
Voting Agreement shall survive the Expiration Date; provided, however, that the
termination of this Voting Agreement shall not relieve any party from any
liability for any breach of this Voting Agreement.
(b) [Intentionally deleted]
(c) Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Voting Agreement shall be paid by the
party incurring such costs and expenses; provided, however, that reasonable
legal fees incurred by Stockholder in connection with this Voting Agreement may
be reimbursed by Metropolis.
(d) Severability. If any term, provision, covenant, or
restriction of this Voting Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, then the remainder of the
terms, provisions, covenants, and restrictions of this Voting Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
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(e) Binding Effect and Assignment. This Voting Agreement and all
of the provisions of this Voting Agreement shall be binding upon and inure to
the benefit of the parties to this Voting Agreement and their respective
successors and permitted assigns; provided, however, that except as otherwise
specifically provided in this Voting Agreement, neither this Voting Agreement
nor any of the rights, interests, or obligations of the parties to this Voting
Agreement may be assigned by either of the parties to this Voting Agreement
without prior written consent of the other party to this Voting Agreement.
Without limiting any of the restrictions set forth in Section 2 or elsewhere in
this Voting Agreement, this Voting Agreement shall be binding upon any Person to
whom any Shares are transferred. Notwithstanding anything contained in this
Voting Agreement to the contrary, nothing in this Voting Agreement, express or
implied, is intended to confer on any Person, other than Jamestown and its
successors and assigns, any rights or remedies of any nature.
(f) Amendments and Modification. This Voting Agreement may not be
modified, amended, altered, or supplemented except upon the execution and
delivery of a written agreement executed by the parties to this Voting
Agreement.
(g) Specific Performance; Injunctive Relief. The parties to this
Voting Agreement acknowledge that Jamestown will be irreparably harmed and that
there will be no adequate remedy at law for a violation of any of the covenants
or agreements of Stockholder set forth herein. Therefore, Stockholder agrees
that, in addition to any other remedies that may be available to Jamestown upon
any such violation, Jamestown shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief, or by any other means
available to Jamestown at law or in equity.
(h) Notices. Notwithstanding anything to the contrary which may
be contained in this Voting Agreement, all notices, demands, requests, or other
communications (collectively, "Notices") required to be given or which may be
given hereunder shall be in writing and shall be sent by (a) certified or
registered mail, return receipt requested, postage prepaid, or (b) national
overnight delivery service, or (c) facsimile transmission (provided that the
original shall be simultaneously delivered by national overnight delivery
service or personal delivery), or (d) personal delivery, addressed as follows:
If to Jamestown:
Jamestown 1290 Partners
Two Paces West, Suite 1600
2727 Paces Ferry Road
Atlanta, Georgia 30339
Attention: Stephen J. Zoukis and Matt M. Bronfman
Fax: (770) 805-1001
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with a copy to (which shall not constitute notice):
King & Spalding
1185 Avenue of the Americas
New York, New York 10036
Attention: William B. Fryer
Fax: (212) 556-2222
with a copy to (which shall not constitute notice):
Holland & Knight LLP
1201 W. Peachtree Street, NE
Suite 2000
Atlanta, GA 30309
Attention: A. Summey Orr III, Esq.
Fax: (404) 881-0470
If to Stockholder: To the address for notice set
forth adjacent to Stockholder's name on the signature
page of this Voting Agreement.
Any Notice so sent by certified or registered mail, national overnight delivery
service or personal delivery shall be deemed given on the date of receipt or
refusal as indicated on the return receipt, or the receipt of the national
overnight delivery service or personal delivery service. Any Notice sent by
facsimile transmission shall be deemed given when received as confirmed by the
telecopier electronic confirmation receipt. A Notice may be given either by a
party or by such party's attorney. Stockholder or Jamestown may designate, by
not less than five (5) business days' notice given to the other in accordance
with the terms of this Section 9(h), additional or substituted parties to whom
Notices should be sent hereunder.
(i) Governing Law. This Voting Agreement shall be governed by,
and construed and enforced in accordance with, the internal laws of the State of
Maryland (without regard to the principles of conflict of laws thereof or of any
other jurisdiction).
(j) Entire Agreement. This Voting Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
(k) Legal Counsel. Stockholder acknowledges that Stockholder has
been advised to consult, and has had the opportunity to consult with, his, hers,
or its personal attorney prior to entering into this Voting Agreement.
Stockholder acknowledges that attorneys for Metropolis represent Metropolis and
do not represent any of the stockholders of Metropolis in connection with the
Purchase Agreement, this Voting Agreement, or any of the transactions
contemplated by this Voting Agreement or by the Purchase Agreement.
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(l) Agreement Negotiated. The form of this Voting Agreement has
been negotiated by or on behalf of Jamestown and Metropolis, each of which was
represented by attorneys who have carefully negotiated the provisions of this
Voting Agreement. Because Stockholder has been advised to consult, and has had
the opportunity to consult, with his, hers, or its personal attorney prior to
entering into this Voting Agreement, Jamestown and Stockholder do not believe
that any laws or rules relating to the interpretation of contracts against the
drafter of any particular clause should be applied in this case and, therefore,
waive its effects.
(m) Counterparts. This Voting Agreement may be executed in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
(n) Effect of Headings. The Section headings in this Voting
Agreement are for convenience only and shall not affect the construction or
interpretation of this Voting Agreement.
(o) Legends. Any stock certificates representing the Shares or
the New Shares shall be legended at the request of Jamestown to reflect this
Voting Agreement and, if applicable, the irrevocable proxy granted by this
Voting Agreement; provided, that any legend shall be subject to approval by
Stockholder (not to be unreasonably withheld) and the costs and expenses related
thereto shall be borne by Jamestown.
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IN WITNESS WHEREOF, the parties have caused this Voting
Agreement to be duly executed on the date and year first above written.
JAMESTOWN 1290, L.P.
By: JT 1290 Corp., its General Partner
By:
----------------------------------------
Name:
Title:
STOCKHOLDER
By:
----------------------------------------
Name:
Title:
Address of Stockholder:
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SCHEDULE 1
DETAILS OF SHAREHOLDING
EXHIBIT A
APPROVED TRANSACTIONS
Subject to the terms and conditions of this Voting Agreement, at every meeting
of the stockholders of Metropolis called with respect to any of the following,
and at every adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of Metropolis with respect to
any of the following, Stockholder shall vote or cause (including by the Proxy,
as hereinafter defined) to be voted the Shares and any New Shares (as defined
herein) as follows:
1. For the Transaction. In favor of (A) approval and adoption of the Purchase
Agreement, the transactions contemplated thereby and by this Voting
Agreement, and the Transaction and any action in furtherance thereof, (B)
waiving any notice that may have been or may be required relating to any
reorganization of Metropolis, any reclassification or recapitalization of
the capital stock of Metropolis or any sale of assets, change of control, or
acquisition of Metropolis by any other Person, or any consolidation or
merger of Metropolis with or into any other Person to the extent such
transaction is undertaken in connection with the Transaction, and (C) any
matter that could reasonably be expected to facilitate the Transaction,
provided no changes or modifications have been made to the Purchase
Agreement or the transactions contemplated thereby and no waiver has been
granted under the Purchase Agreement, in each case which would have a
material adverse effect on the economic benefits to be realized by
Stockholder pursuant to the Purchase Agreement as in effect on the date
hereof;
2. For the Merger. In favor of the merger (the "Merger") of Metropolis into
Metropolis Realty Holdings LLC, a Delaware limited liability company and
wholly-owned subsidiary of Metropolis, with Metropolis as the surviving
entity in the Merger, to be consummated in connection with the consummation
of the Transaction, provided no changes or modifications have been made to
the Purchase Agreement or the transactions contemplated thereby and no
waiver has been granted under the Purchase Agreement, in each case which
would have a material adverse effect on the economic benefits to be realized
by Stockholder pursuant to the Purchase Agreement as in effect on the date
hereof; and
3. Against Alternative Transactions. Against any matter that could reasonably
be expected to hinder, impede, or delay the consummation of the Transaction,
the Merger or materially adversely affect the Transaction, the Merger and
the transactions contemplated by this Voting Agreement and the Purchase
Agreement.
Stockholder shall not, from the date of this Voting Agreement until the
Expiration Date (as hereinafter defined), enter into any agreement or
understanding with any Person to vote (other than the Proxy granted in
connection herewith) or give instructions inconsistent with paragraphs 1, 2,
and/or 3 above.
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EXHIBIT B
PROXY
The undersigned stockholder of Metropolis Realty Trust, a Maryland
corporation (the "Owner"), hereby irrevocably appoints and constitutes Stephen
J. Zoukis and Matt M. Bronfman of JAMESTOWN 1290, L.P., a Delaware limited
partnership, having an address at Two Paces West, Suite 1600, 2727 Paces Ferry
Road, Atlanta, Georgia 30339 ("Jamestown"), and each of them, or any other
designee of Jamestown, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to the shares of capital stock
of Owner owned of record by the undersigned, which shares are listed on the
final page of this proxy (the "Proxy") and any and all other shares or
securities issued or issuable in respect thereof, or otherwise acquired of
record by the undersigned on or after the date hereof (collectively, the
"Shares"), until the earlier of (i) the date of the closing of the Transaction
(as hereinafter defined) and (ii) the date the Purchase Agreement (as
hereinafter defined) is terminated in accordance with its terms, such
termination date being referred to herein as the "Expiration Date."
This Proxy is granted pursuant to the Voting Agreement, dated as of May
__, 2002, by and between Jamestown and the undersigned (the "Voting Agreement").
Capitalized terms used but not otherwise defined in this proxy have the meanings
given to such terms in the Voting Agreement. This Proxy is coupled with an
interest, and is granted in consideration of Jamestown entering into the
Purchase Agreement, and consummating the Transaction. This Proxy is irrevocable
(to the fullest extent provided by applicable law) except as specifically
provided in Section 1(d) of the Voting Agreement.
Upon the undersigned's execution of this Proxy, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned agrees not to grant any subsequent proxies with respect to
the Shares until after the Expiration Date.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered to by the undersigned at any time prior to the
Expiration Date to act as the undersigned's attorney and proxy to vote the
Shares and to exercise all voting and other rights of the undersigned with
respect to the Shares, including, without limitation, the power to execute and
deliver written consents with respect to the Shares pursuant to Maryland
corporation law at every annual, special, or adjourned meeting of the
stockholders of Owner, and in every written consent in lieu of such a meeting,
or otherwise:
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1. For the Transaction. In favor of (A) approval and adoption of the Purchase
Agreement, the transactions contemplated thereby and by this Voting
Agreement, and the Transaction and any action in furtherance thereof, (B)
waiving any notice that may have been or may be required relating to any
reorganization of Metropolis, any reclassification or recapitalization of
the capital stock of Metropolis or any sale of assets, change of control, or
acquisition of Metropolis by any other Person, or any consolidation or
merger of Metropolis with or into any other Person to the extent such
transaction is undertaken in connection with the Transaction, and (C) any
matter that could reasonably be expected to facilitate the Transaction,
provided no changes or modifications have been made to the Purchase
Agreement or the transactions contemplated thereby and no waiver has been
granted under the Purchase Agreement, in each case which would have a
material adverse effect on the economic benefits to be realized by
Stockholder pursuant to the Purchase Agreement as in effect on the date
hereof;
2. For the Merger. In favor of the merger (the "Merger") of Metropolis into
Metropolis Realty Holdings LLC, a Delaware limited liability company and
wholly-owned subsidiary of Metropolis, with Metropolis as the surviving
entity in the Merger. The Merger is to be consummated prior to the
consummation of the Transaction, provided no changes or modifications have
been made to the Purchase Agreement or the transactions contemplated thereby
and no waiver has been granted under the Purchase Agreement, in each case
which would have a material adverse effect on the economic benefits to be
realized by Stockholder pursuant to the Purchase Agreement as in effect on
the date hereof; and
3. Against Alternative Transactions. Against any matter that could reasonably
be expected to hinder, impede, or delay the consummation of the
Transaction., the Merger or materially adversely affect the Transaction, the
Merger and the transactions contemplated by this Voting Agreement and the
Purchase Agreement.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned Stockholder may vote
the Shares on all such other matters.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors, and assigns of the
undersigned. THIS PROXY IS IRREVOCABLE except as specifically provided in
Section 1(d) of the Voting Agreement.
Signature of Stockholder:
----------------------------
Print Name of Stockholder:
---------------------------
Shares that are held of record
and beneficially owned:
------------------------
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