Exhibit I to the
Master Contribution Agreement
VOTING AND STANDSTILL AGREEMENT
Dated as of September 25, 2000
among
CBL & ASSOCIATES PROPERTIES, INC.,
CBL & ASSOCIATES LIMITED PARTNERSHIP,
THE CBL PRINCIPALS,
XXXXXX REALTY INVESTORS LIMITED PARTNERSHIP,
XXXXXXX X. XXXXXX, SOLELY AS TRUSTEE FOR THE
XXXXXXX X. XXXXXX REVOCABLE LIVING TRUST,
XXXXXXX X. XXXXXX, SOLELY AS TRUSTEE FOR
THE XXXXX X. XXXXXX MARITAL TRUST,
AND
XXXXXX X. XXXXXX
VOTING AND STANDSTILL AGREEMENT
VOTING AND STANDSTILL AGREEMENT, dated as of September 25, 2000, among CBL
& ASSOCIATES PROPERTIES, INC., a Delaware corporation (the "REIT"), CBL &
ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (the "Operating
Partnership"; the Operating Partnership and the REIT are referred to herein
collectively as "CBL"), each of the persons listed on Schedule A hereto (each a
"CBL Principal", and, collectively, the "CBL Principals"), XXXXXX REALTY
INVESTORS LIMITED PARTNERSHIP, a Delaware limited partnership, ("JRI"), Xxxxxxx
X. Xxxxxx, solely as trustee for the Xxxxxxx X. Xxxxxx Revocable Living Trust
(the "REJ"), and Xxxxxxx X. Xxxxxx, solely as trustee for the Xxxxx X. Xxxxxx
Marital Trust (the "DHJ" and, together with the REJ, the "Xxxxxx Trusts") and
Xxxxxx X. Xxxxxx ("Xxxxxx"); JRI, the Xxxxxx Trusts and Xxxxxx are referred to
herein collectively as the "Xxxxxx Parties".
WHEREAS, concurrently herewith, CBL and the Xxxxxx Parties are executing a
Master Contribution Agreement (the "Master Contribution Agreement"). Capitalized
terms used but not defined herein have the meanings given to them in the Master
Contribution Agreement.
WHEREAS, the CBL Principals own beneficially and of record certain OP Units
and shares of REIT Stock as set forth on Schedule A.
WHEREAS, the Master Contribution Agreement requires the REIT to call a
meeting of its stockholders to vote to approve the issuance of the securities
contemplated by and in accordance with the terms of the Master Contribution
Agreement and to take certain other actions related thereto.
WHEREAS, the parties hereto desire to execute and deliver this Agreement
for the purpose of regulating certain aspects of the relationship between CBL,
the Xxxxxx Parties and the CBL Principals prior to and following the Closing
under the Master Contribution Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
are hereby acknowledged, the parties covenant and agree as follows:
Section 1. Stockholders Meeting; Board of Directors; Voting of REIT Stock.
(a) At the Stockholders Meeting, each of the CBL Principals agrees that it
will vote or cause to be voted all of the REIT Stock beneficially owned by such
CBL Principal to (i) approve the issuance of the SCUs as contemplated in the
Master
Contribution Agreement, and (ii) authorize and approve such other acts,
documents and transactions as may be contemplated by, or reasonably necessary or
desirable in order to give effect to the consummation of the transactions
contemplated by, the Master Contribution Agreement, this Agreement and the other
transaction documents identified in any of the foregoing documents. For the
purposes of this Agreement, "beneficial ownership" means, with respect to any
security, the power, directly or indirectly, to vote or direct the voting of
that security.
(b) Effective at and as of the Principal Closing, the REIT agrees to (i)
take all corporate and other actions necessary to increase the number of
directors on the REIT's board of directors (the "Board of Directors") to add at
least two directors to the Board of Directors in accordance with the REIT's
certificate of incorporation and by-laws and (ii) cause Xxxxxx X. Xxxxxx or, if
he is unwilling or unable to serve, another person nominated by JRI prior to the
Principal Closing (and qualifying as a JRI Representative in accordance with the
criteria established below) to be appointed to the class of directors of the
Board of Directors whose term expires in 2003, and a second to-be-named person
nominated by JRI prior to the Principal Closing or such other date on which the
REIT is required to appoint a second JRI Representative, if applicable, (and
qualifying as a JRI Representative in accordance with the criteria established
below) to be appointed to the class of directors of the Board of Directors whose
term expires in 2002. If it becomes necessary for JRI to replace any such
nominee or nominees, JRI will use good faith efforts to provide the REIT with
notice of such replacement at least five (5) Business Days prior to the
Principal Closing or such other date on which the REIT is required to appoint a
second JRI Representative, if applicable. Each of such persons and any persons
as JRI, in accordance with the remainder of this Section 1(b), may hereafter
designate as replacements for either of them, is referred to herein as a "JRI
Representative" and such persons, together, are referred to herein as the "JRI
Representatives". Notwithstanding anything in the foregoing to the contrary, in
the event that, at the Principal Closing, the total number of SCUs issued to the
Xxxxxx Persons (directly or through entities on their behalf) in accordance with
the terms of the Master Contribution Agreement is fewer than 6,742,423 SCUs, the
REIT will only be required to cause one JRI Representative, selected by JRI, to
be appointed to the Board of Directors, which JRI Representative will be
appointed to the class of directors of the Board of Directors whose term expires
in 2003; provided, however, that in the event that at any time the Xxxxxx
Persons (directly or through entities on their behalf) are issued additional
SCUs in accordance with the terms of the Master Contribution Agreement or any
Interest Contribution Agreement or Deed Contribution Agreement, and as a result
the Xxxxxx Persons beneficially own 6,742,423 or more SCUs, then the REIT will
cause an additional JRI Representative to be appointed to the Board of
Directors, which JRI Representative will be appointed to the class of directors
whose term expires in 2002. At the time of his or her nomination and appointment
to the Board of Directors and throughout his or her term, any JRI Representative
must qualify as Independent, as defined in the REIT's Amended and
-2-
Restated Certificate of Incorporation of the REIT, dated November 2, 1993, as
amended by the Certificate of Amendment to the Amended and Restated Certificate
of Incorporation, dated May 2, 1996, as supplemented by the Certificate of
Designation, dated June 25, 1998, and the Certificate of Designation, dated
April 30, 1999, and as modified as contemplated in Section 4.15 of the Master
Contribution Agreement (the "REIT's Charter"), with such changes to the
definition as have been consented to by JRI, unless the other JRI Representative
then serving as a Director already qualifies as an Independent director.
Additionally, each replacement JRI Representative shall (i) be a person having
experience and standing in the business community comparable to the experience
and standing of independent directors in the public real estate investment trust
sector generally; it being understood that any proposed JRI Representative will
be deemed acceptable unless the Independent directors of the REIT (other than
the JRI Representative) determine, in their reasonable judgment exercised in
good faith (and without any personal liability on the part of any such director
to any Xxxxxx Party), and so advise JRI in writing that the proposed JRI
Representative does not, in their judgment, satisfy the requirements of this
Section 1(b)(i), and (ii) not be an officer, director, 10% or more partner,
member or shareholder or other controlling person of (A) any entity whose
business consists primarily of owning or operating regional enclosed mall and/or
other shopping centers in the United States or (B) any entity that is an anchor
tenant or other major tenant (i.e., occupying, directly or together with its
affiliates, 35,000 square feet or more of gross leasable area) of any regional
enclosed mall or other shopping center then owned or controlled directly or
indirectly by the Operating Partnership, unless (in the case of (A) above) the
entity in question is an entity owned or controlled directly or indirectly by
Xxxxxxx X. Xxxxxx or either of the Xxxxxx Trusts or any Xxxxxx Family Member and
that ownership and/or control does not constitute a violation of the
Non-Competition Agreement entered into between Xx. Xxxxxx and CBL at the
Principal Closing. If at any time either the REIT or JRI determines that neither
of the JRI Representatives qualifies as an Independent director (as defined in
the REIT's Charter), the determining party will notify the other in writing of
such determination and the basis therefor. Upon making such determination (or
receiving notice thereof from the REIT), JRI promptly will designate a
replacement JRI Representative and the REIT and JRI will cooperate to take such
actions as are necessary to cause an existing JRI Representative selected by JRI
to resign from, and the qualifying replacement JRI Representative to be elected
to, the REIT's Board of Directors as soon as reasonably practical.
(c) Subject to Section 1(e), the REIT hereby agrees to nominate each of the
JRI Representatives for re-election to the Board of Directors (and recommend
each of them to the stockholders of the REIT) at each subsequent meeting of the
stockholders of the REIT held to consider a vote on such JRI Representative's
board seat and not to take any action designed to interfere with the election or
re-election of the JRI Representatives to the Board of Directors. Subject to
Section 1(e), if at any time a vacancy occurs on the Board of Directors with
respect to a seat occupied by a JRI
-3-
Representative (by reason of such JRI Representative's death, disability,
resignation or otherwise), the REIT hereby agrees to cause a replacement JRI
Representative to be appointed to fill such vacancy promptly following his or
her designation by JRI.
(d) Subject to Section 1(e) and through the twelfth (12th) anniversary of
the Principal Closing Date, each of the CBL Principals hereby agrees to vote all
shares of capital stock of the REIT beneficially owned by it, and entitled to
vote thereon, in favor of the election or re-election, as the case may be, of
the JRI Representatives to the Board of Directors at each meeting of the
stockholders of the REIT held to consider a vote on a seat on the Board of
Directors held or proposed to be held by a JRI Representative.
(e) Notwithstanding any other provision in this Section 1:
(i) if the aggregate number of all SCUs and other interests in the
REIT and the Operating Partnership issued in respect of SCUs owned directly
and/or beneficially by any of JRI, any Xxxxxx Trust or any Xxxxxx Family
Member, taken together as a group (each a "Xxxxxx Person" and,
collectively, the "Xxxxxx Persons") is at least 33% but fewer than 67% of
10,113,635 (such number of SCUs and other interests in the Operating
Partnership to be calculated on the basis of the number of shares in the
REIT receivable upon the conversion or exchange thereof), the obligations
of the REIT and the CBL Principals pursuant to paragraphs (b) through (d)
of this Section 1 will terminate with respect to the JRI Representative
next scheduled for re-election and at the expiry of such JRI
Representative's then current term, he or she will tender his or her
resignation to the Board of Directors; as used herein, "Xxxxxx Family
Member" means each of Xxxxxxx X. Xxxxxx, any spouse or lineal descendant of
Xxxxxxx X. Xxxxxx or Xxxxx X. Xxxxxx, and any spouse or lineal descendent
of any of the foregoing; and
(ii) if the aggregate number of all SCUs and other interests in the
REIT and the Operating Partnership issued in respect of SCUs owned directly
and/or beneficially by the Xxxxxx Persons, taken together as a group, is
fewer than 33% of 10,113,635 (such number of SCUs and other interests in
the Operating Partnership to be calculated on the basis of the number of
shares in the REIT receivable upon the conversion or exchange thereof), the
obligations of the REIT and the CBL Principals under paragraphs (b) through
(d) of this Section 1 will terminate and at the expiry of the remaining JRI
Representative's then current term he or she will tender his or her
resignation to the Board of Directors.
(f) In the event that any CBL Principal transfers (including by way of
proxy, by operation of law or through succession, but expressly excluding by way
of a proxy given to a representative appointed or designated by the REIT in
connection with a particular stockholder meeting) beneficial ownership of any
shares of REIT Stock (or
-4-
beneficial ownership of any interests in the Operating Partnership exchangeable
into REIT Stock) to any member of the Lebovitz Family (other than to a member of
the Lebovitz Family who is an original signatory of this Agreement), the CBL
Principal (or, in the case of death, such deceased CBL Principal's legal
representatives), concurrently with such transfer, will cause the transferee to
execute and deliver a counterpart of this Agreement to each Xxxxxx Party by
which the transferee agrees to be bound by the provisions of this Agreement as
if it were a CBL Principal. Notwithstanding any provision of the Master
Contribution Agreement or the OP Partnership Agreement to the contrary, from the
date hereof until the twelfth (12th) anniversary of the Principal Closing Date
or such earlier date on which the obligations of the CBL Principals under
Section 1(d) terminate pursuant to the terms of Section 1(e)(ii), no transfer of
beneficial ownership of any shares of REIT Stock (or any interests in the
Operating Partnership convertible into or exchangeable for REIT Stock) from any
CBL Principal to any member of the Lebovitz Family (including, without
limitation, transfers by succession or operation of law) shall be effective
unless the transferee executes a counterpart of this Agreement and agrees to be
bound by the terms hereof (including this sentence) as contemplated in the
immediately preceding sentence.
(g) Notwithstanding anything to the contrary in this Agreement, the
obligations of the CBL Principals pursuant to this Agreement shall apply only to
actions to be taken or not to be taken in their capacities as stockholders of
the REIT, and without limiting the obligations of any CBL Principal pursuant to
this Section 1, nothing in this Section 1 shall prohibit, or be deemed to limit
in any manner any CBL Principal who is serving as an officer or director, solely
in his or her capacity as such officer or director, from (1) taking any action
or making any statement at any meeting of the Board of Directors of the REIT or
any committee thereof, (2) making any statement to any officer, director or
agent of the REIT or (3) otherwise taking any action solely in his or her
capacity as an officer or director of the REIT.
Section 2. Xxxxxx Party Standstill and Voting Agreements. Each Xxxxxx Party
covenants and agrees for the benefit of the REIT and each of the individuals
named as CBL Principals that, prior to the twelfth (12th) anniversary of the
Principal Closing Date:
(a) Without the express prior written consent of the REIT and, if then
wholly-owned and controlled exclusively by Xxxxxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxxxx, another member of the Lebovitz Family who is an executive officer of
the REIT or any two or more of them together, LebFam, Inc., a Tennessee
corporation, (it being understood and agreed that at such time, if ever, as the
foregoing entity ceases to be wholly-owned and controlled exclusively by Xxxxxxx
X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, another member of the Lebovitz Family who is
then an executive officer of the REIT or any two or more of the foregoing acting
together, the consent right provided to that entity in this Section 2(a)
automatically will expire), it will not, and it will cause each Person
-5-
controlled by it to not, singly or as part of a partnership, limited
partnership, syndicate or other group (as such terms are used within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), directly or indirectly:
(i) acquire beneficial ownership of any voting securities of the REIT
(other than (w) upon the exchange of SCUs or Common Units or any other
securities issued in respect of SCUs into securities of the REIT, (x) as a
result of a stock split, stock dividend or other recapitalization by the
REIT or the exercise of rights or warrants distributed to the REIT's
stockholders, (y) as a result of transfers from any Xxxxxx Party, Xxxxxx
Family Member, Associate or any of their respective affiliates, or (z) in a
transaction in which such Person acquires a controlling interest in a
previously non-affiliated business entity that owns less than 1% of the
outstanding voting securities of the REIT and whose business purpose is not
primarily the ownership of securities of the REIT), or otherwise
participate in or encourage the formation of any group that owns or seeks
to acquire beneficial ownership of voting securities of the REIT or rights
to acquire such securities,
(ii) solicit, initiate or otherwise engage in any "solicitation" of
"proxies" or become a "participant" in an "election contest" (as those
terms are defined or used in Regulation 14A promulgated pursuant to the
Exchange Act) with respect to the REIT, call any special meeting of
stockholders of the REIT or demand a copy of the REIT's stock ledger or a
list of its stockholders,
(iii) seek to advise, encourage or influence any Person with respect
to the voting of any REIT Stock (other than the REIT Stock beneficially
owned by a Xxxxxx Party, a Xxxxxx Family Member or an Associate) for the
purposes of exerting a controlling influence over the management, Board of
Directors or policies of the REIT (it being understood that this provision
will not be deemed to prohibit private casual conversations that are not
initiated with a view toward exerting any such influence),
(iv) participate in or encourage the formation of any group which
seeks or offers to affect control of the REIT or for the purpose of
circumventing any provision of this Agreement,
(v) otherwise act, alone or in concert with others (including by
providing financing for another party), to seek to exercise a controlling
-6-
influence over the management, Board of Directors or policies of the REIT,
(vi) make a request to the REIT (or its directors, officers or
stockholders) to amend or waive any provision of this Agreement, the REIT's
Charter or the REIT's by-laws or the REIT's Shareholder Rights Agreement
(in each case, other than as contemplated by this Agreement or the Master
Contribution Agreement), including, without limitation, any request to
permit any Xxxxxx Party or any other person to take any action prohibited
by this Section 2, or
(vii) disclose any intention, plan or arrangement inconsistent with
the foregoing;
provided, however, that, except as provided in the third to last and penultimate
sentences of Section 2(a) hereof and in Section 2(d) hereof, nothing in this
Section 2 shall prohibit, or be deemed to limit in any manner, any Xxxxxx Party
or Xxxxxx Family Member from voting any shares of capital stock of the REIT held
by it for or against any matter presented to stockholders of the REIT, and
nothing in this Section 2 shall prohibit, or be deemed to limit in any manner,
any person or entity from making any statement or disclosure required under the
federal securities laws or other applicable laws or regulations, or any person
who is serving as a director, solely in his or her capacity as such director,
from (1) taking any action or making any statement at any meeting of the Board
of Directors of the REIT or any committee thereof, (2) making any statement to
any officer, director or agent of the REIT, or (3) otherwise taking any action
solely in his or her capacity as an officer or director of the REIT; and
provided, further, that nothing in this Section 2 shall prohibit any Xxxxxx
Party or any affiliate thereof from discussing any matter with any Xxxxxx Party,
Xxxxxx Family Member, Associate or any of their respective affiliates. If any
Xxxxxx Party is determined by a court of competent jurisdiction (after a hearing
or other proceeding at which such Xxxxxx Party had notice and an opportunity to
be present, to be prepared, to participate fully and to defend its position) to
have violated the restrictions in clause (a)(i) above, such Xxxxxx Party shall
not be entitled to vote any of the voting securities that formed the basis of
the breach until the restrictions in Section 2(a) are terminated in accordance
with the terms of Section 2(b). If any Xxxxxx Party is determined by a court of
competent jurisdiction after such a hearing to have violated the restrictions in
any of clauses (a)(ii) through (a)(v) or (a)(vii) above with respect to any
proposal being submitted, or proposed by such Xxxxxx Party to be submitted, to a
vote of stockholders of the REIT or partners of the Operating Partnership,
shares of REIT Stock or partnership interests, as applicable, held by that
Xxxxxx Party will not be entitled to any vote on the proposal to which the
violation related. Nothing in the foregoing shall be deemed to limit any other
remedy available to the REIT, the Operating Partnership or the CBL Principals at
law or in equity.
-7-
(b) The restrictions in paragraph (a) above will terminate at the earliest
to occur of the following:
(i) other than as a result of a breach by a Xxxxxx Party of the
provisions of paragraph (a) above, any Person, other than a Xxxxxx Person
or a Person controlled by a Xxxxxx Person, initiates or commences any
takeover bid or tender, exchange or other similar offer to holders of any
class or series of stock of the REIT or interests in the Operating
Partnership in which such Person seeks to effect a Control Transaction or
any solicitation of any such holders in furtherance of any of the foregoing
(any such action, a "Takeover Action") and the Board of Directors of the
REIT or the general partner of the Operating Partnership, as applicable,
either (A) does not publish, send or give to such holders a statement
recommending rejection of the Takeover Action within ten (10) Business Days
of the date notice of the Takeover Action was first published or sent or
given to such holders or (B) having given a notice rejecting the proposed
Takeover Action, the board subsequently publishes, sends or gives such
holders a statement recommending acceptance of, or indicating that the REIT
or the Operating Partnership, as applicable, expresses no opinion and is
remaining neutral toward, the Takeover Action,
(ii) the REIT or the Operating Partnership, or any representative on
behalf of either of them, enters into active negotiations with any Person
with respect to any Control Transaction, provided, that, no Xxxxxx Party
will take any action prohibited by paragraph (a) above in reliance on this
clause (ii) unless a representative of the Xxxxxx Parties has first given
the REIT twenty-four (24) hours' prior written notice that the standstill
restrictions in paragraph (a) above have been terminated pursuant to this
clause (ii),
(iii) the REIT or the Operating Partnership, or any representative on
behalf of either of them, solicits proposals or offers from any Person or
Persons to acquire all or a substantial portion (i.e., more than 75% by
value) of the assets of the REIT or the Operating Partnership or initiate
or participate in a Control Transaction with respect to the REIT or the
Operating Partnership (it being understood that this provision will not be
deemed to include preliminary exploratory conversations that do not rise to
the level of soliciting proposals or offers), provided, that, no Xxxxxx
Party will take any action otherwise prohibited by paragraph (a) above in
reliance on this clause (iii) unless a representative of the Xxxxxx Parties
has first given the REIT twenty-four (24) hours' prior written notice that
the standstill restrictions in paragraph (a) above have been terminated
pursuant to this clause (iii),
-8-
(iv) the REIT announces a program (or an increase in an existing
program) to acquire the greater of (1) seven (7) million or more
shares of REIT Stock in the aggregate (such number to be adjusted for
stock splits, reverse stock splits, stock dividends, combinations and
the like) or (2) 28% or more of the then-outstanding shares of REIT
Stock,
(v) any Insolvency Event occurs with respect to the REIT or the
Operating Partnership,
(vi) members of the Lebovitz Family no longer beneficially own as
a group, directly or indirectly, at least 3,384,023 shares of REIT
Stock (such number to be adjusted for stock splits, reverse stock
splits, stock dividends, combinations and the like) (treating, for
this purpose, any interests in the Operating Partnership that are by
their terms exchangeable for or otherwise convertible into REIT Stock
as if such interests have been fully exchanged or converted in
accordance with their terms),
(vii) the first date on which the provisions of the Share
Ownership Agreement (as set forth in Schedule 4.15(b)-1 or Schedule
4.15(b)-2 of the Master Contribution Agreement, as applicable) have
terminated with respect to the Xxxxxx Group and its members in
accordance with the provisions of Article VIII thereof, and
(viii) the twelfth (12th) anniversary of the Principal Closing
Date.
As used herein:
(A) "Control Transaction" means any transaction that involves: (I)
(a) a sale of all or substantially all of the assets of the REIT or
the Operating Partnership, or
(b) a merger or other business combination of the REIT or the
Operating Partnership with or into any other Person, a recapitalization of
the REIT or the Operating Partnership, or a sale or issuance of voting
securities of the REIT or any securities of the REIT or the Operating
Partnership that are convertible or exchangeable into voting securities of
the REIT, if, immediately following the transaction, a Person (other than a
member of the Lebovitz Family) or group (for purposes of the definition of
"Control Transaction" the term "group" means a group as defined in Rule
13d-5 under the Exchange Act), other than a group consisting solely of
members of the Lebovitz Family, would beneficially own voting securities
representing 25% or more of the voting power of the voting securities of
-9-
the REIT that existed immediately prior to such transaction (assuming, for
purposes of this determination, that any securities issued in connection
with such transaction that are exchangeable for or otherwise convertible
into voting securities of the REIT have been fully exchanged or converted,
but specifically excluding for this purpose (1) the portion, if any, of any
such securities that (x) by the express provisions of their exchange or
conversion terms are not convertible or exchangeable into voting securities
of the REIT at any time when conversion or exchange would cause that Person
or group to beneficially own a number of voting securities of the REIT
representing 25% (or such lower percentage as CBL may elect) or more of the
voting power of the voting securities of the REIT that existed immediately
prior to the transaction in question without JRI's prior written consent,
or (y) are not able to be exchanged, exercised or otherwise converted into
voting securities of the REIT because doing so would result in a violation
of the share ownership limitations in the REIT's Charter (and the REIT has
undertaken to the Xxxxxx Persons in writing that it will not waive the
application of those ownership limitations to such Person or group in a
manner that would enable the Person or group to beneficially own a number
of voting securities of the REIT that would represent 25% or more of the
voting power of the voting securities of the REIT that existed immediately
prior to the transaction in question without JRI's prior written consent
(unless, at that time, the Xxxxxx Persons are no longer subject to the
standstill provisions of this Agreement, in which case JRI's prior written
consent shall not be required for any such waiver)) and (2) the securities
issued to any such Person if that Person is subject to a standstill
agreement that imposes standstill restrictions on that Person or group
comparable in scope to, or more restrictive than, the restrictions imposed
on the Xxxxxx Parties pursuant to this Agreement for the remainder of the
standstill period contemplated in this Agreement (or such longer period as
CBL may elect), and the REIT has undertaken to the Xxxxxx Persons in
writing that it will not waive or terminate the standstill restrictions
imposed on that Person or group without JRI's prior written consent
(unless, at that time, the Xxxxxx Persons are no longer subject to or are
in breach of the standstill provisions of this Agreement, in which case
JRI's prior written consent shall not be required for any such waiver or
termination); for clarification, as used in this Section 2(b), references
to the REIT, the Operating Partnership and the general partner of the
Operating Partnership shall be interpreted to include, in the case of a
merger or other similar transaction in which any such entity is not the
surviving entity, the successor(s) thereto as appropriate; or
(II) (a) a change in the composition of the Board of Directors of the REIT
or of the general partner of the Operating Partnership if, following
-10-
the completion of such transaction, 50% or more of the seats on the Board
of Directors of the REIT or of the general partner of the Operating
Partnership are held or, pursuant to the terms of such transaction, are
planned to be held by persons that were not directors of such entity
immediately prior to such transaction, or
(b) the granting to any Person or group the right to nominate or
appoint directors to the Board of Directors of the REIT or of the general
partner of the Operating Partnership, if the total number of board seats in
respect of which such rights have been granted, when taken together with
the number of new directors appointed to the board as part of that
particular transaction, represents 50% or more of the number of directors
on that board immediately following the completion of such transaction;
(B) "Insolvency Event" means, with respect to any Person, (a) a proceeding
under Title 11 of the United States Code or any other similar insolvency,
liquidation, rehabilitation, reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution or similar law of any jurisdiction, whether now
or hereafter in effect, is commenced by the Person or by any other Person
against the Person, (b) a trustee is appointed or takes charge of all or
substantially all of the assets of the Person, (c) the Person is adjudicated
insolvent or bankrupt, (d) the Person makes a general assignment for the benefit
of its creditors, or (e) the Person admits in writing its inability to pay, or
ceases to pay, its debts generally as they become due; provided, however, that
in the case of an involuntary proceeding, appointment, or action described in
clause (a), clause (b) and clause (d), an "Insolvency Event" shall only occur if
the Person is unable to cause such involuntary proceeding, appointment or action
to be dismissed, withdrawn or stayed by the sixtieth (60th) day after the
commencement thereof; and
(C) "Lebovitz Family" means each of Xxxxxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxxxx, any spouse, sibling (including by adoption) or descendant of any of
the foregoing, and any spouse, sibling (including by adoption) or descendent of
any of the foregoing.
(c) If the standstill restrictions in Section 2 (a) above terminate because
of circumstances described in any of clauses (i) through (iii) of Section 2(b)
above (and not because of any of the circumstances described in clauses (iv)
through (vii) of Section 2(b)), and in the case of Section 2(b)(i) the Takeover
Action fails by its terms or is terminated or withdrawn by the bidder, or in the
case of Section 2(b)(ii) or 2(b)(iii) the REIT and/or the Operating Partnership
discontinues its active negotiations or withdraws its solicitation of proposals
or offers, and, in any such case, none of the other circumstances described in
clauses (i) through (vii) of Section 2(b) above is then occurring or in
existence, then from the date on which the REIT notifies JRI (as representative
of the Xxxxxx Parties) in writing of such failure, termination, withdrawal or
discontinuance, the
-11-
standstill restrictions automatically will be reinstated, provided, however, in
the event of such a reinstatement, the Xxxxxx Parties will not be considered to
be in violation of the restrictions in Section 2(a) above because of any actions
taken prior to reinstatement, or for any actions taken by any of them following
such reinstatement pursuant to, or in satisfaction of, any contractual
obligations undertaken by them during the unrestricted period, but excluding,
for this purpose, (1) any contractual obligation that may be terminated by the
Xxxxxx Parties as of right and without incurring any fee, penalty or other
liability, contingent or otherwise and (2) any contractual obligation that may
be terminated by the Xxxxxx Party as of right solely by the payment of a fixed
cash amount in the nature of a fee or reimbursement, so long as CBL has paid the
full amount of that fee or reimbursement in cash to the Person or Persons
entitled thereto and also has paid each relevant Xxxxxx Party an amount equal to
the aggregate federal, state and local income taxes payable by such Xxxxxx Party
as a result of, or in connection with, CBL's having paid the break-up fee or
expense reimbursement on that Xxxxxx Party's behalf plus an amount equal to the
aggregate federal, state and local income taxes payable by the Xxxxxx Party as a
result of the payment by CBL of amounts payable to the Xxxxxx Party pursuant to
this sentence (including for this purpose all taxes on payments hereunder
intended to compensate the recipient for tax liability). It is further agreed
that (x) the foregoing tax reimbursement payments will be determined in
accordance with the principles stated in the last sentence of Section 5.5(a) of
the Master Contribution Agreement and (y) if the amount of the fee or
reimbursement referred to above, by the terms of the relevant document, is
determined in a manner that expressly discriminates against CBL (i.e., if the
amount payable is higher if made by CBL or if made in connection with the
reinstatement of the Xxxxxx Parties' standstill obligations than it generally
would be in other circumstances), then the relevant Xxxxxx Party will be
required to pay the excess portion of such payment directly and will not be
entitled to any payment or reimbursement from CBL in respect thereof.
(d) Each Xxxxxx Party hereby agrees that at each meeting of the
stockholders of the REIT held to consider a vote on such matter the Xxxxxx Party
will vote all shares of capital stock of the REIT beneficially owned by it and
entitled to vote thereon in favor of (i) the election of any person nominated by
the REIT's Board of Directors to serve as a director on the REIT's Board of
Directors and running for the position unopposed and uncontested and (ii) the
appointment as auditors for the REIT of any nationally recognized public
accounting firm proposed by the REIT's Board of Directors and being proposed
unopposed and uncontested.
(e) In the event that any Xxxxxx Party transfers (including by way of
proxy, by operation of law or through succession, but expressly excluding by way
of a proxy given to a representative appointed or designated by the REIT in
connection with a particular stockholder meeting) beneficial ownership of any
shares of voting stock of the REIT (or beneficial ownership of any interests in
the Operating Partnership exchangeable into REIT Stock) to any Xxxxxx Family
Member, the Xxxxxx Party (or, in the case of death,
-12-
such deceased Xxxxxx Party's legal representatives), concurrently with such
transfer, will cause the Xxxxxx Family Member to execute and deliver a
counterpart of this Agreement to each CBL Principal by which the transferee
agrees to be bound by the provisions of this Agreement as if it were a Xxxxxx
Party. Notwithstanding any provision of the Master Contribution Agreement, the
OP Partnership Agreement or Exhibit E thereto to the contrary, from the date
hereof until any of clause (iv), (v), (vi) or (vii) of Section 2(b) occurs, no
transfer of beneficial ownership of any shares of REIT Stock (or any interests
in the Operating Partnership convertible or exchangeable into REIT Stock) from
any Xxxxxx Party to any Xxxxxx Family Member (including, without limitation,
transfers by succession or operation of law) shall be effective unless the
transferee executes a counterpart of this Agreement and agrees to be bound by
the terms hereof as contemplated in the immediately preceding sentence.
Section 3. Representations, Warranties and Covenants of the Xxxxxx Parties.
Each Xxxxxx Party hereby represents, warrants and covenants to CBL and the CBL
Principals as follows:
(a) Authority. Such Xxxxxx Party has full legal power, authority and right
to execute and deliver, and to perform its obligations under, this Agreement.
This Agreement (i) has been duly executed by such Xxxxxx Party and (ii)
constitutes a valid and binding agreement of such Xxxxxx Party enforceable
against such Xxxxxx Party in accordance with its terms, subject to (1)
bankruptcy, insolvency, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (2) general
principles of equity, regardless of whether considered in a proceeding at law or
in equity.
(b) Conflicting Instruments. Neither the execution and delivery of this
Agreement nor the performance by such Xxxxxx Party of its obligations hereunder
will violate or result in any breach or violation of or be in conflict with or
constitute a default under any term of (i) the constitutive or organizational
documents of such Xxxxxx Party or (ii) any agreement, judgment, injunction,
order, decree, law or regulation to which such Xxxxxx Party is a subject or by
which such Xxxxxx Party (or any of its assets) is bound.
(c) Right to Vote. Such Xxxxxx Party has full legal power, authority and
right to take the actions required by this Agreement without the consent or
approval of, or any other action on the part of, any other Person. Without
limiting the generality of the foregoing, such Xxxxxx Party has not entered into
any voting agreement with respect to any REIT Stock, granted any person any
proxy (revocable or irrevocable) or power of attorney with respect to any REIT
Stock, deposited any REIT Stock in a voting trust or entered into any
arrangement or agreement limiting or affecting such Xxxxxx Party's legal power,
authority or right to vote REIT Stock as required by this Agreement (it being
understood, however, that as of the date hereof no Xxxxxx Party beneficially
owns any shares of REIT Stock, but that Xxxxxxx X. Xxxxxx personally owns fifty
(50) shares of
-13-
REIT Stock). From and after the date hereof and continuing for so long, if ever,
as such Xxxxxx Party beneficially owns REIT Stock, that Xxxxxx Party will not
commit any act that could impose additional restrictions on, or otherwise
affect, the Xxxxxx Party's legal power, authority and right to vote all of its
REIT Stock as required by this Agreement. Without limiting the generality of the
foregoing, from and after the date hereof, such Xxxxxx Party will not enter into
any voting agreement with any Person with respect to any REIT Stock hereafter
owned by it, grant any Person (other than a representative appointed or
designated by the REIT in connection with a particular stockholder meeting and
other than in connection with a pledge of REIT Stock as security for a bona fide
debt or other obligation) any proxy (revocable or irrevocable) or power of
attorney with respect to any of REIT Stock hereafter owned by it, deposit any
REIT Stock owned by it in a voting trust or otherwise enter into any agreement
or arrangement restricting or affecting such Xxxxxx Party's legal power,
authority or right to vote as required by this Agreement without, in each case,
(i) causing such Person to agree to be bound by the provisions of this Agreement
that impose limitations and/or voting obligations on the Xxxxxx Parties or (ii)
the prior written consent of the REIT and, if it is then wholly-owned and
controlled exclusively by Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, another
member of the Lebovitz Family who is then an executive officer of the REIT or
any two or more of them together, LebFam, Inc. (it being understood and agreed
that if the foregoing entity ceases to be wholly-owned and controlled
exclusively by Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, another member of the
Lebovitz Family who is then an executive officer of the REIT or any two or more
of the foregoing acting together, the consent right provided to that entity in
this Section 3(c) automatically will expire). The provisions of this Agreement
are not intended to and do not impair any Xxxxxx Party's right, power or
authority to sell or otherwise dispose of all or any portion of any REIT Stock
hereafter owned by any Xxxxxx Party and, except as set forth in Section 2, any
transferee of a Xxxxxx Party's REIT Stock will not be bound by the provisions of
this Agreement.
Section 4. Representations, Warranties and Covenants of the CBL Principals.
Each CBL Principal hereby represents, warrants and covenants to each of the
Xxxxxx Parties as follows:
(a) Title. As of the date hereof, such CBL Principal owns beneficially and
of record the shares of REIT Stock and interests in the Operating Partnership
set forth opposite its name on Schedule A, such CBL Principal has the sole right
to vote its REIT Stock, and there are no restrictions on rights of disposition
or other liens, claims, options, charges or other encumbrances pertaining to its
REIT Stock other than as set forth in the REIT's charter and the OP Partnership
Agreement, as applicable.
(b) Right to Vote. Such CBL Principal has full legal power, authority and
right to vote its REIT Stock in favor of approval of the issuance of the SCUs as
contemplated in the Master Contribution Agreement and the transactions herein
and
-14-
therein contemplated (including voting for the JRI Representatives as directors)
and to take the other actions required by this Agreement without the consent or
approval of, or any other action on the part of, any other Person. Without
limiting the generality of the foregoing, such CBL Principal has not entered
into any voting agreement with respect to any of its REIT Stock, granted any
person any proxy (revocable or irrevocable) or power of attorney with respect to
any of its REIT Stock, deposited any of its REIT Stock in a voting trust or
entered into any arrangement or agreement limiting or affecting such CBL
Principal's legal power, authority or right to vote its REIT Stock as required
by this Agreement. As of the date of the Stockholders Meeting, such CBL
Principal will have full legal power, authority and right to vote all of its
REIT Stock as required by this Agreement without the consent or approval of, or
any other action on the part of, any other Person. From and after the date
hereof and continuing for so long as any CBL Principal continues to beneficially
own REIT Stock, that CBL Principal will not commit any act that could impose
additional restrictions on, or otherwise affect, such legal power, authority and
right to vote all of its REIT Stock as required by this Agreement. Without
limiting the generality of the foregoing, from and after the date hereof, such
CBL Principal will not enter into any voting agreement with any Person with
respect to any of its REIT Stock, grant any Person (other than a representative
appointed or designated by the REIT in connection with a particular stockholder
meeting and other than in connection with a pledge of REIT Stock as security for
a bona fide debt or other obligation) any proxy (revocable or irrevocable) or
power of attorney with respect to any of its REIT Stock, deposit any of its REIT
Stock in a voting trust or otherwise enter into any agreement or arrangement
restricting or affecting such CBL Principal's legal power, authority or right to
vote as required by this Agreement without, in each case, (i) causing such
Person to agree to be bound by the provisions of this Agreement which impose
voting obligations on the CBL Principals or (ii) the prior written consent of
JRI. The provisions of this Agreement are not intended to and do not impair any
CBL Principal's right, power or authority to sell or otherwise dispose of any
REIT Stock and, except as set forth in Section 1(f), any transferee of a CBL
Principal's REIT Stock will not be bound by the provisions of this Agreement.
(c) Authority. Such CBL Principal has full legal power, authority and right
to execute and deliver, and to perform its obligations under, this Agreement.
This Agreement (i) has been duly executed by such CBL Principal and (ii)
constitutes a valid and binding agreement of such CBL Principal enforceable
against such CBL Principal in accordance with its terms, subject to (1)
bankruptcy, insolvency, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally, and (2) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
(d) Conflicting Instruments. Neither the execution and delivery of this
Agreement nor the performance by such CBL Principal of its obligations hereunder
will violate or result in any breach or violation of or be in conflict with or
constitute a default
-15-
under any term of (i) the constitutive or organizational documents of such CBL
Principal or the REIT or the Operating Partnership or (ii) any agreement,
judgment, injunction, order, decree, law or regulation to which the CBL
Principal, the REIT or the Operating Partnership is a party or by which any such
Person (or any of its assets) is bound.
Section 5. CBL Principal Agreement to Vote. Each CBL Principal hereby
irrevocably and unconditionally agrees to vote and to cause to be voted all the
REIT Stock beneficially owned by it at each meeting of the stockholders of the
REIT held prior to the final closing of the transactions contemplated by the
Master Contribution Agreement where such matters arise (x) in favor of the
matters for which it has agreed to vote in Section 1 above and (y) against (i)
approval of any proposals made in opposition to or in competition with the
Master Contribution Agreement and the transactions contemplated by the Master
Contribution Agreement and this Agreement and (ii) any transaction in which CBL
is prohibited from engaging under the terms of the Master Contribution Agreement
or any other action that would, in each case, impede, interfere with, delay,
postpone or attempt to discourage the transactions contemplated by the Master
Contribution Agreement or this Agreement or result in a breach of any of the
covenants, representations, warranties or other obligations or agreements of CBL
or any CBL Principal in the Master Contribution Agreement or this Agreement.
Section 6. Severalty of Obligations. (a) The obligations under this
Agreement of each Xxxxxx Party are the separate and several obligations of that
Xxxxxx Party and are not joint obligations with respect to any other Person. No
failure by any Xxxxxx Party to perform its obligations under this Agreement
shall relieve any other Person of any of its obligations hereunder, and no
Xxxxxx Party shall be responsible or liable for the obligations of, or any
action taken or omitted by, any other Xxxxxx Party hereunder.
(b) The obligations under this Agreement of each CBL Principal are the
separate and several obligations of such CBL Principal, and are not joint
obligations with respect to any other Person. No failure by any CBL Principal to
perform its obligations under this Agreement shall relieve any other Person of
any of its obligations hereunder, and no CBL Principal shall be responsible or
liable for the obligations of, or any action taken or omitted by, any other CBL
Principal hereunder.
Section 7. Specific Enforcement. The parties hereto recognize and agree
that, in the event that any of the terms or the provisions of this Agreement are
not performed or complied with in accordance with their specific terms or are
otherwise breached, immediate irreparable injury would be caused for which there
is no adequate remedy at law. Accordingly, it is agreed that in the event of a
failure by a party to perform its obligations hereunder, the other parties shall
be entitled to specific performance through injunctive relief to prevent
breaches of the terms hereof and specifically to enforce this Agreement and the
terms and provisions hereof in any action instituted in any court of
-16-
the United States or any state thereof having subject matter jurisdiction, in
addition to any other remedy to which such other parties may be entitled, at law
or in equity.
Section 8. Termination. This Agreement will automatically terminate in the
event that the Master Contribution Agreement is terminated in accordance with
its terms prior to the Principal Closing.
Section 9. Miscellaneous.
(a) Notices. All notices, demands, consents, requests or other
communications provided for or permitted to be given hereunder by a party hereto
must be in writing and shall be deemed to have been properly given or served (x)
on the fifth (5th) Business Day after deposit in the United States mail
addressed to such party by registered or certified mail, postage prepaid, return
receipt requested, (y) on the day after delivery to a reputable national
overnight air courier service, prepaid and addressed to such party, or (z) if
not deposited in the United States mail or delivered to a national overnight air
courier service as aforesaid, shall be deemed to be properly given or served
upon actual receipt (with rejection of delivery by addressee to constitute
receipt), as follows:
If to any of CBL or any CBL Principal, to that party c/o:
CBL & Associates Properties, Inc.
Watermill Center
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
and
CBL & Associates Properties, Inc.
One Park Place
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx and H. Xxx Xxxxxxx, Jr.
with a copy sent simultaneously to CBL's attorneys:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxx
-17-
and
Shumacker & Xxxxxxxx, X.X.
Xxxxx 000, Xxx Xxxx Xxxxx
0000 Xxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
If to any Xxxxxx Party, to that party c/o:
Xxxxxx Realty Investors Limited Partnership
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with copies sent simultaneously to JRI's attorneys:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxxx X. Xxxxx
and
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Any of the aforementioned parties may change its address for the receipt of
notices, demands, consents, requests and other communications by giving written
notice to the others in the manner provided for above.
(b) Waivers and Amendments; Noncontractual Remedies, Preservation of
Remedies. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by all the parties hereto or, in the case of a waiver, by the party
waiving compliance who will be burdened or bound thereby. No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, nor any single or partial exercise of any such right,
power or privilege, preclude any further exercise thereof or the exercise of any
other such right, power or privilege. The rights and remedies herein provided
are
-18-
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any breach of any provision of
this Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such breach is
based may also be the subject matter of any other provision of this Agreement
(or of any other agreement between the parties) as to which there is no breach.
(c) GOVERNING LAW. AS PERMITTED BY SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK, THE PARTIES HERETO AGREE THAT THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT ANY
PROVISIONS HEREOF MODIFY OR AFFECT RIGHTS OR OBLIGATIONS ARISING EXCLUSIVELY
UNDER THE CORPORATION LAWS OF THE STATE OF DELAWARE, IN WHICH CASE THE
RESPECTIVE LAWS OF SUCH JURISDICTION SHALL GOVERN WITH RESPECT TO SUCH
PROVISIONS, BUT ONLY TO THE EXTENT NECESSARY TO GIVE EFFECT THERETO.
(d) Jurisdiction. Each of the Xxxxxx Parties, CBL and each of the CBL
Principals each hereby irrevocably and unconditionally submits to the
jurisdiction of any New York State Court or Federal Court of the United States
of America sitting in the borough of Manhattan, and any appellate court from any
such court, in any suit, action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each hereby
irrevocably and unconditionally agrees that all claims in respect of any such
suit, action or proceeding shall be brought in and may be heard and determined
in such New York State Court or, to the extent permitted by law, in such Federal
Court. Each of JRI, CBL and each of the CBL Principals each agrees that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Each of the Xxxxxx Parties, CBL and each of the CBL Principals
each hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any New York State Court or Federal Court sitting
in the borough of Manhattan. Each of the Xxxxxx Parties, CBL and each of the CBL
Principals each hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court. Nothing contained in this Section 10(d)
shall be construed as preventing any of the Xxxxxx Parties, CBL and the CBL
Principals, or any of their respective affiliates, from (i) objecting to the
jurisdiction of any New York State Court on the ground that the matter involved
exceeds the statutory jurisdiction of such court or
-19-
(ii) from seeking to remove any suit, action or proceeding from a New York State
Court to a Federal Court sitting in the borough of Manhattan, or vice versa.
(e) Severability. If any provision of this Agreement or the applicability
of any such provision to any Person or circumstance shall be determined by any
court of competent jurisdiction to be invalid or unenforceable to any extent,
the remainder of this Agreement or the application of such provision to Persons
or circumstances other than those for which it is so determined to be invalid
and unenforceable, shall not be affected thereby, and each provision of this
Agreement shall be valid and shall be enforced to the fullest extent permitted
by law. To the extent permitted by applicable law, each party hereto hereby
waives any provision or provisions of law which would otherwise render any
provision of this Agreement invalid, illegal or unenforceable in any respect.
(f) Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of the parties hereto and their respective successors,
assigns and personal representatives.
(g) Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts and when so executed shall constitute one Agreement,
notwithstanding that all parties are not signatories to the same counterpart.
(h) Headings; Sections; Schedules. The headings in this Agreement are for
reference only, and shall not affect the interpretation of this Agreement.
References to Sections and Schedules contained in this Agreement are references
to the Sections hereof and the Schedules hereto.
(i) Changes in Capitalization. Without duplication of any other provision
of this Agreement, if any stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, acquisition of
property or stock, reorganization, liquidation or other similar change or
transaction of or by CBL occurs as a result of which shares of any class of any
corporation are issued in respect of outstanding securities of the REIT, or
outstanding securities of the Operating Partnership are changed into the same or
a different number of shares of the same or another class or classes, all
references to CBL's securities hereunder shall be deemed to be references to the
securities received by holders of CBL's securities in exchange for or in respect
of their CBL securities pursuant to such transaction.
(j) No Inconsistent Action. None of the Xxxxxx Parties, the CBL Principals
or CBL shall take any action that would render performance by such person of its
obligations hereunder impossible or unreasonably impractical.
[Reminder of page intentionally left blank]
-20-
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
OPERATING PARTNERSHIP:
CBL & ASSOCIATES LIMITED
PARTNERSHIP
By: CBL Holdings I, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
REIT:
CBL & ASSOCIATES PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
CBL PRINCIPALS:
CBL & ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
-21-
/s/ Xxxx X. Xxx
---------------------------------
Xxxx X. Xxx
JRI:
XXXXXX REALTY INVESTORS LIMITED
PARTNERSHIP
By: JG Realty Investors Corp.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXXX TRUSTS:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx, solely as trustee for the
Xxxxxxx X. Xxxxxx Revocable Living Trust
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx, solely as trustee for the
Xxxxx X. Xxxxxx Marital Trust
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxx
-22-
Schedule A(1)
CBL Principals
Shares Equivalents
Shares of Common of the Operating
Stock of the REIT Partnership
Name Direct/Indirectly Owned Direct/Indirectly Owned
--------------------- ----------------------- -----------------------
Xxxxxxx X. Xxxxxxxx 1,526,597(2) 6,017,886(2)
Xxxxxxx X. Xxxxxxxx 59,664(3) 238,936(3)
Xxxx X. Xxx 79,161 189,241
CBL & Associates, Inc. 1,470,054(4) 7,237,823(4)
------------------
(1) Schedule includes stock and interests owned or controlled by named person
but does not include stock deemed owned solely by attribution under the
Internal Revenue Code.
(2) Includes stock and interests owned or controlled by Xxxxxxx Xxxxxxxx,
includes interests owned by CBL & Associates, Inc.
(3) Includes stock and interests owned or controlled by Xxxxxxx Xxxxxxxx only.
(4) Includes stock and interests owned or controlled by CBL & Associates, Inc.
only.
