VOTING AGREEMENT
Exhibit
10.4
This
VOTING AGREEMENT (“Agreement”) is entered into as of January 1, 2007 by and
among FSP 000 XXXX XXXXXX XXXXX CORP., a Delaware corporation (“000 Xxxx Xxxxxx
Xxxxx”), XXXXXX X. XXXXXX, an individual resident of the Commonwealth of
Massachusetts (“GJC”), and FRANKLIN STREET PROPERTIES CORP., a Maryland
corporation (“FSP”).
WHEREAS,
000 Xxxx Xxxxxx Xxxxx is currently governed by that certain Certificate of
Incorporation dated December 13, 2006 and filed with the Delaware Department of
State on December 13, 2006 (the “Charter”);
WHEREAS,
000 Xxxx Xxxxxx Xxxxx issued one (1) share of common stock, $0.01 par value per
share (the “Common Stock”);
WHEREAS,
FSP owns 99% of the Common Stock;
WHEREAS,
GJC owns 1% of the Common Stock;
WHEREAS,
000 Xxxx Xxxxxx Xxxxx is offering 2,210 shares of preferred stock, $0.01 par
value per share (the “Preferred Stock”) to accredited investors pursuant to that
certain Confidential Memorandum dated January 1, 2007;
WHEREAS,
FSP is authorized to purchase up to 994 shares of the Preferred
Stock;
WHEREAS,
the Charter requires the affirmative vote or the written consent of the holders
of more than 50% of the then outstanding shares of the Preferred Stock to merge
or consolidate 000 Xxxx Xxxxxx Xxxxx into or with any other corporation or other
entity or to sell all or substantially all of the assets of 000 Xxxx Xxxxxx
Xxxxx (“Merger Vote”); and
WHEREAS,
000 Xxxx Xxxxxx Xxxxx, FSP and GJC wish to provide for the voting by FSP and
GJC, as applicable, of the Common Stock and the Preferred Stock.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Common
Stock. FSP and GJC agree that, in connection with any Merger
Vote, FSP and GJC shall vote the Common Stock held by them in the same manner
that a majority of the holders of shares of the Preferred Stock other than FSP
or its affiliates vote such shares in favor of or opposed to such Merger
Vote. For purposes of determining how FSP and GJC shall vote the
Common Stock, abstentions and non-votes by holders of Preferred Stock other than
FSP shall not be considered.
2. Preferred
Stock. FSP agrees that, in connection with any matter
presented for a vote by the holders of the Preferred Stock, including without
limitation any matter to be approved by written consent pursuant to Section 228
of the Delaware General Corporation Law, FSP shall vote the shares of Preferred
Stock held by it, if any, in a manner that approximates as closely as possible
the votes cast in favor of and opposed to such matter by the holders of
the
Preferred
Stock other than FSP and its affiliates. For purposes of determining
how FSP shall vote its shares of Preferred Stock, if any, abstentions and
non-votes by stockholders other than FSP shall not be considered.
3. FSP
and GJC agree that they shall take all actions and execute all documents
reasonably requested by 000 Xxxx Xxxxxx Xxxxx to effect the provisions of this
Agreement, including without limitation the execution and delivery of an
irrevocable proxy naming such persons designated by 000 Xxxx Xxxxxx Xxxxx as
proxies.
4. 000
Xxxx Xxxxxx Xxxxx shall notify FSP and GJC as promptly as practicable of the
percentage of shares of Preferred Stock held by stockholders other than FSP cast
in favor and in opposition to any matter. 000 Xxxx Xxxxxx Xxxxx shall
as promptly as practicable direct FSP and GJC as to how they are required to
vote in connection with any matter in accordance with the provisions set forth
above.
5. This
Agreement shall terminate upon the earlier of the following to occur: (i) the
written consent of 000 Xxxx Xxxxxx Xxxxx, FSP and GJC or (ii) the sale of all or
substantially all of the capital stock, assets or business of 000 Xxxx Xxxxxx
Xxxxx, by merger, consolidation, sale of assets or otherwise. Upon
such termination, all rights and obligations to the parties hereto shall
terminate.
6. All
notices, requests or other communications hereunder shall be in writing and
shall be delivered (i) in person, (ii) by Federal Express or other nationally
recognized overnight carrier service which issues confirmation of delivery or
(iii) by confirmed facsimile transmission, to 000 Xxxx Xxxxxx Xxxxx at its
principal office at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx
00000 and to FSP at its principal office at 000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, or to such other addresses as either party
hereto may designate to the other in writing. Any such notice shall
be deemed to be given (i) when delivered, if delivered personally or by Federal
Express or other nationally recognized overnight carrier service or (ii) upon
confirmation of receipt, if delivered by facsimile transmission.
7. This
Agreement shall be governed by and construed in accordance with the internal
substantive laws of the State of Delaware, without giving effect to conflicts of
laws principles.
8. If
any provision of this Agreement is invalid or unenforceable, such invalidity
shall not invalidate or render unenforceable any other part of this Agreement
but the Agreement shall be construed as not containing the particular provision
or provisions held to be invalid or unenforceable, and the rights and
obligations of the parties hereto shall be construed and enforced
accordingly.
9. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one and the same
instrument.
10. This
Agreement and any of the terms hereof may be amended, changed, waived or
discharged only by an instrument in writing signed by 000 Xxxx Xxxxxx Xxxxx, FSP
and GJC.
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11. This
Agreement is intended by the parties as a final expression of their agreement
and intended to be the complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject
matter.
12. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their successors and permitted assigns. The obligations of FSP
and GJC hereunder shall be binding on any transferee of the Common Stock and/or
the Preferred Stock, if any, that is an affiliate of FSP. Subject to
the agreement of such affiliate to be bound hereby, FSP shall have the right to
transfer some or all of its Common Stock and/or Preferred Stock, if any, to any
of its affiliates. Except as set forth above, no party may transfer
its rights and obligations hereunder without the consent of the other
parties.
[Signatures
appear on the following page.]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
000 Xxxx Xxxxxx
Xxxxx: FSP
000 XXXX XXXXXX XXXXX CORP.
By: /s/ Xxxxxx X.
Xxxxxx
Xxxxxx X. Xxxxxx
President and Chief Executive
Officer
FSP: FRANKLIN
STREET PROPERTIES CORP.
By: /s/ Xxxxxx X.
Xxxxxx
Xxxxxx X. Xxxxxx
President and Chief Executive
Officer
GJC: /s/ Xxxxxx X.
Xxxxxx
XXXXXX X. XXXXXX
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