EXHIBIT V
Veqtor Stockholder Approval Agreement
STOCKHOLDER APPROVAL AGREEMENT (this "Agreement"), dated as of
March 8, 2000, among Travelers General Real Estate Mezzanine Investments II,
LLC, a Delaware limited liability company ("General XXXX XX"), and Veqtor
Finance Company, L.L.C., a Delaware liability company ("Stockholder").
Preliminary Statement
A. Capital Trust, Inc., a Maryland corporation ("CT"), and
certain of its affiliates (the "CT Parties") and General XXXX XX and certain of
its Affiliates (the "CIG Parties"), propose to enter into a venture agreement,
dated as of the date hereof (the "Venture Agreement"), pursuant to which, among
other things, the CIG Parties and CT and the CT Parties will co-sponsor, commit
to invest capital in and manage real estate mezzanine investment opportunity
funds.
B. The Stockholder owns in the aggregate 3,192,288 shares (the
"Owned Shares") of class A common stock, par value $.01 per share, of CT ("CT
Common Stock").
C. As a condition to the CIG Parties' willingness to enter
into the Venture Agreement, the CIG Parties have requested the Stockholder to
enter into this Agreement.
D. Capitalized terms used but not defined herein have the
meanings set forth in the Venture Agreement.
NOW, THEREFORE, to induce the CIG Parties to enter into, and
in consideration of the CIG Parties entering into, the Venture Agreement, and 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. The
Stockholder hereby, jointly and severally, represents and warrants to General
XXXX XX as follows:
(a) Authority. The Stockholder has all requisite power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Stockholder, and the consummation of the transactions
contemplated hereby, has been duly authorized by all necessary action
on the part of the Stockholder. This Agreement has been duly executed
and delivered by the Stockholder and, assuming the due authorization,
execution and delivery by General XXXX XX, constitutes a valid and
binding obligation of the Stockholder enforceable in accordance with
its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally or by general principles governing the
availability of equitable remedies. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of or default (with or
without notice or lapse of time or both) under any provision of any
trust agreement, partnership agreement, loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument,
permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to the
Stockholder or to any of the property or assets of the Stockholder.
Except for consents, approvals, authorizations and filings as may be
required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), and the Securities Exchange Act of
1934, as amended ("Exchange Act"), no consent, approval, order or
authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental
authority or instrumentality, domestic, foreign or supranational
("Governmental Entity"), is required by or with respect to the
Stockholder in connection with the execution and delivery of this
Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
(b) The Owned Shares. The Stockholder has good and valid title
to the Owned Shares, free and clear of any claims, liens, encumbrances,
pledges and security interests whatsoever. The Stockholder owns no
shares of CT Common Stock or other shares of stock of CT, other than
the Owned Shares. Except for this Agreement, and that certain
stockholder voting and lock-up agreement, dated as of the date hereof,
by and among General XXXX XX, the Stockholder, and the other holders of
CT Common Stock named therein (the "Voting and Lockup Agreement"), no
proxies or powers of attorney have been granted with respect to the
Owned Shares and no voting arrangement (including voting agreement or
voting trust) has been entered into affecting the Owned Shares that
will remain in effect after the execution of this Agreement.
(c) Venture Agreement. The Stockholder understands and
acknowledges that General XXXX XX is entering into the Venture
Agreement in reliance upon the Stockholder's execution and delivery of
this Agreement.
2. Representations and Warranties of General XXXX XX. General
XXXX XX hereby represents and warrants to the Stockholder as follows:
(a) Authority. General XXXX XX has all requisite limited
liability company power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by General XXXX XX, and the consummation of
the transactions contemplated hereby, have been duly authorized by all
necessary limited liability company action on the part of General XXXX
XX. This Agreement has been duly executed and delivered by General XXXX
XX, assuming the due authorization, execution and delivery by the
Stockholder, constitutes a valid and binding obligation of General XXXX
XX enforceable in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally or by general
principles governing the availability of equitable remedies. The
execution and delivery of this Agreement does not, and the consummation
of the transactions contemplated hereby and compliance with the terms
hereof will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time or both) under any
provision of any limited liability company agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable
to General XXXX XX or to any of the property or assets of any of
General XXXX XX. Except for consents, approvals, authorizations and
filings as may be required under the HSR Act and the Exchange Act, no
consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity, is required by or
with respect to the Stockholder in connection with the execution and
delivery of this Agreement or the consummation by General XXXX XX of
the transactions contemplated hereby.
3. Covenants of the Stockholder. Until the valid termination
of the provisions of this Section 3 pursuant to Section 8, the Stockholder
agrees as follows:
(a) At any meeting of Stockholder of CT called to vote upon
the Warrant Issuance (as such term is defined in the Venture Agreement)
or at any adjournment thereof or in any other circumstances upon which
a vote, consent or other approval with respect to the Warrant Issuance
is sought, the Stockholder shall vote (or cause to be voted) all shares
of CT Common Stock it owns or has voting control over in favor of the
Warrant Issuance.
(b) At any meeting of Stockholder of CT or at any adjournment
thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote
(or cause to be voted) all shares of CT Common Stock owned by it or
over which it has voting control against any amendment of CT's charter
and amended and restated bylaws or other proposal or transaction
involving CT or any of its subsidiaries, which amendment or other
proposal or transaction would reasonably be expected in any manner to
impede, frustrate, prevent or nullify CT's ability or obligation to
consummate or effect the Warrant Issuance.
(c) The Stockholder shall not (i) Transfer or Otherwise
Dispose (as hereinafter defined) of, or enter into any agreement or
other arrangement with respect to, the Owned Shares to any person, (ii)
enter into any voting arrangement, whether by proxy, voting agreement,
voting trust, power of attorney or otherwise with respect to, the Owned
Shares, except as provided in this Agreement and the Voting and Lockup
Agreement or (iii) take any other action that would reasonably be
expected in any way to restrict, limit, or interfere with the
performance of their obligations hereunder. Notwithstanding the
foregoing, nothing contained in this Agreement shall be deemed to
restrict or prohibit the ability of (i) the Stockholder to transfer
shares to immediate family members or trusts or other entities in
connection with estate planning objectives, provided that such
transferee agrees in writing to be bound by the terms of this Agreement
as though such transferee were a Stockholder, and that notice and a
copy of such agreement are provided to General XXXX XX prior to such
transfer, (ii) the Stockholder from pledging up to a number of its
shares of CT Common Stock to any nationally recognized financial
institution as collateral for a bona fide third party loan or from
using up to a number of its shares of CT Common Stock as collateral for
a bona fide third party margin loan with a nationally recognized
financial institution or broker/dealer equal to the maximum number of
shares that may be pledged pursuant to the Voting and Lockup Agreement
or (iii) the Stockholder to enter into an agreement with the respect to
the voting and Disposition of shares of CT Common Stock between and
among Stockholder and JRK Investment Partnership LP and CMH Investment
Partnership, LP (the "JCV Group"), provided that the obligations of
Stockholder in such agreement are expressly subordinate to the
obligations of Shareholder hereunder and there are no parties to such
agreement other than the JCV Group. For purposes of this Agreement,
"Transfer or Otherwise Dispose" means any sale, exchange, redemption,
assignment, gift, grant of a security interest, pledge or other
encumbrance, or the creation of any other claim thereto or any other
transfer or disposition whatsoever (including involuntary sales,
exchanges, transfers or other dispositions, and whether or not for cash
or other consideration) affecting the right, title, interest or
possession in, to or of CT Common Stock.
4. Additional Covenants of the Stockholder. Until the valid
termination of the provisions of this Section 4 pursuant to Section 8, the
Stockholder agrees as follows:
(a) At any meeting of Stockholder of CT called to vote upon
any REIT Tax Matter submitted to a vote pursuant to Section 2.14 of the
Venture Agreement or at any adjournment thereof or in any other
circumstances upon which the Stockholder's votes, consent or other
approval with respect to any such REIT Tax Matter is sought, the
Stockholder shall vote (or cause to be voted) all shares of CT Common
Stock it owns or has voting control over at such time in favor of such
REIT Tax Matter.
(b) At any meeting of Stockholder of CT or at any adjournment
thereof or in any other circumstances upon which the Stockholder's
votes, consent or other approval is sought, the Stockholder shall vote
(or cause to be voted) all shares of CT Common Stock owned by it or
over which it has voting control at such time against any amendment of
CT's charter and amended and restated bylaws or other proposal or
transaction involving CT or any of its subsidiaries, which amendment or
other proposal or transaction would reasonably be expected in any
manner to impede, frustrate, prevent or nullify CT's ability or
obligation to consummate or effect any REIT Tax Matter.
5. Further Assurances. Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
General XXXX XX may reasonably request for the purpose of effectively carrying
out the transactions contemplated by this Agreement and to vest the power to
vote the Stockholder's Owned Shares as contemplated in Section 3.
6. Duty. Notwithstanding the covenants of Stockholder
contained in Sections 3 and 4, any Stockholder who is an officer or director of
CT, only in his capacity as an officer or director of CT, may take any such
action that is in furtherance of the exercise of his duties as an officer or
director under Maryland law, and no such action in furtherance of the exercise
of such duties shall be deemed to be a breach or violation of the covenants of
such Stockholder contained in Sections 3 and 4 and the Stockholder shall not
have any liability hereunder for any such action taken in his capacity as an
officer and director of CT in furtherance of the exercise of such duties.
7. 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, except that General XXXX
XX may assign, in its sole discretion, any or all of its rights and interests to
Citigroup Inc. or any of its direct or indirect wholly owned subsidiaries or
other entities or to Travelers Property Casualty Corp. or any of its direct or
indirect wholly owned subsidiaries or other entities. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns and, in
the case of any Stockholder that is an individual, the heirs, executors and
administrators of such Stockholder.
8. Termination. The rights and obligations contained in
Section 3 shall terminate and shall be of no further legal force and effect on
the date on which stockholders of CT shall have considered and voted upon the
Warrant Issuance. The rights and obligations contained in Section 4 shall
terminate and shall be of no further legal force and effect on the earlier of
the date on which (i) stockholders of CT shall have considered and voted upon
any REIT Tax Matters presented for a vote pursuant to Section 2.14 of the
Venture Agreement, (ii) if the Fund II Initial Closing shall not have occurred
by no later than December 31, 2000 or any Extension Date, (a) the Unwind set
forth in the Fund I Agreement is commenced or (b) any dissolution or liquidation
of Fund I in accordance with its terms is completed, (iii) the Appraisal
Procedures shall have commenced with respect to the Fair Market Value of the CIG
Parties' and their Affiliates' Board Right Shares pursuant to Section 2.14 of
the Venture Agreement, or (iv) upon the resignation of the CIG Parties Initial
Board Designees as set forth in Section 2.12(e) of the Venture Agreement if the
CIG Parties or the CT Parties shall have exercised their right to terminate the
Venture Agreement pursuant to Section 2.12(e) of the Venture Agreement.
9. General Provisions.
(a) Specific Performance. The parties agree that irreparable
damage that is impossible to measure in money damages 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 New York or
any New York state court, this being in addition to any other remedy to
which they are entitled at law or in equity.
(b) Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or
delivered (i) when delivered personally, or (ii) if sent by registered
or certified mail, return receipt requested, or by private courier when
received; and shall be addressed as follows:
If to General XXXX XX, to:
Travelers General Real Estate Mezzanine
Investments II, LLC
000 Xxxxxxxx Xxxx., 0XX
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
Real Estate Investment Number: 12833
With a copies to:
Citigroup Investments Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxxxx Xxxxxx
Real Estate Investment Number: 12833
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
If to the Stockholder, to:
c/o Equity Group Investments, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
or to such other address as such party may indicate by a notice delivered to the
other parties hereto.
(e) 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".
(f) 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 counter
parties have been signed by each of the parties and delivered to the
other party, it being understood that each party need not sign the same
counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This
Agreement together with all other agreements executed by the parties
hereto on the date hereof (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.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York as to
all matters, including but not limited to, matters of validity,
construction, effect, performance and remedies, without regard to any
applicable conflicts of law.
(i) Waivers. Any term or provision of this Agreement may be
waived, or the time for its performance may be extended, by the party
or parties entitled to the benefit thereof. Any such waiver shall be
validly and sufficiently given for the purposes of this Agreement if,
as to any party, it is in writing signed by an authorized
representative of such party. The failure of any party hereto to
enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way to affect
the validity of this Agreement or any part hereof or the right of any
party thereafter to enforce each and every such provision. No waiver of
any breach of this Agreement shall be held to constitute a waiver of
any other or subsequent breach.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TRAVELERS GENERAL REAL ESTATE
MEZZANINE INVESTMENTS II, LLC
By:
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Xxxxxxx Xxxxxx
Vice President
VEQTOR FINANCE COMPANY, L.L.C.
By: Xxxx General Partnership, Inc.,
its managing partner
By:
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Name:
Title:
