EXHIBIT 4
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of December 31, 2001, by
and among certain undersigned shareholders (each a "Shareholder" and
collectively, the "Shareholders") of Vornado Realty Trust, a Maryland real
estate investment trust (the "Vornado REIT"), Xxxxxx X. Xxxxx ("Xx. Xxxxx"),
Xxxxxx X. Xxxxx ("Xx. Xxxxx"), and SCR GP (as defined below), as the
Representative. Capitalized terms used but not defined herein shall have the
respective meanings ascribed to them in the Merger Agreement (as defined below).
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of October 18, 2001, among Vornado REIT, Vornado Realty L.P., a Delaware
limited partnership (the "Vornado OP"), Vornado Merger Sub L.P., a Delaware
limited partnership, Xxxxxxx X. Xxxxx Commercial Realty, L.P., a Delaware
limited partnership ("SCR"), Xxxxxxx X. Xxxxx Commercial Realty L.L.C., a
Delaware limited liability company and the sole general partner of SCR ("SCR
GP"), Xxxxxx X. Xxxxx ("Xx. Xxxxx"), Xxxxxx X. Xxxxx ("Xx. Xxxxx"), and Xxxxxxx
X. Xxxxx Management, Inc., a District of Columbia corporation ("SMI") (the
"Merger Agreement"), the Vornado OP will acquire SCR;
WHEREAS, each Shareholder currently exercises direct or indirect voting
control over the number of common shares of beneficial interest, $.04 par value
per share, of Vornado REIT ("Common Shares") set forth opposite such
Shareholder's name on Schedule 1 hereto; and
WHEREAS, in order to induce SCR to enter into the Merger Agreement and
to consummate the Merger in accordance with the terms thereof, each Shareholder
has agreed, upon the terms and subject to the conditions set forth herein, to
vote such Shareholder's Shares (as defined below) in favor of the election of
Xx. Xxxxx (or a Xxxxx Designee (as defined below)) and Xx. Xxxxx (or a Kogod
Designee (as defined below)) to the Board of Trustees of Vornado REIT.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Representations of the Shareholders. Each Shareholder represents and
warrants to each of SCR GP, Messrs. Xxxxx and Kogod that (a) such Shareholder
exercises exclusive voting control over such Shareholder's Shares and, except as
set forth on Schedule 1 hereto or as contemplated by this Agreement, there are
no rights, agreements, arrangements or commitments of any character to which
such Shareholder is a party relating to the pledge, disposition or voting of any
of such Shareholder's Shares and there are no voting trusts or voting
agreements with respect to such Shareholder's Shares, (b) such Shareholder is
duly authorized to execute and deliver this Agreement, and (c) this Agreement is
a valid and binding obligation of such Shareholder enforceable against such
Shareholder in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the rights of creditors generally and by general equitable principles.
2. Agreement to Vote Shares.
(a) Subject to the terms and conditions of this Agreement, each
Shareholder agrees during the term of this Agreement to vote, or cause to be
voted, such Shareholder's Shares in favor of the election of (i) Xx. Xxxxx (or,
to the extent that Xx. Xxxxx or the Xxxxx Family (as defined in the Merger
Agreement) is entitled, pursuant to the Merger Agreement, to nominate a Xxxxx
Designee (as defined in the Merger Agreement), a Xxxxx Designee) to the Board of
Trustees of Vornado REIT at every meeting of the shareholders of Vornado REIT at
which such matter is considered and at every adjournment thereof for at least
two consecutive three-year terms (the "Minimum Term"), and (ii) Xx. Xxxxx (or,
to the extent that Xx. Xxxxx or the Kogod Family (as defined in the Merger
Agreement) is entitled, pursuant to the Merger Agreement, to nominate a Kogod
Designee (as defined in the Merger Agreement), a Kogod Designee) to the Board of
Trustees of Vornado REIT at every meeting of the shareholders of Vornado REIT at
which such matter is considered and at every adjournment thereof for at least
the Minimum Term; provided, however, that Messrs. Xxxxx and Kogod shall resign
from the Board of Trustees of Vornado REIT on or after the 6th anniversary of
the date of their initial appointment to the Board of Trustees of Vornado REIT
unless otherwise requested by Vornado to remain on the Board of Trustees of
Vornado REIT after such date. For all purposes of this Agreement, with respect
to any Shareholder, "Shares" shall mean those Common Shares, if any, held of
record or beneficially owned by and for the account of such Shareholder from
time to time, including those Common Shares acquired after the date of this
Agreement, during the term of this Agreement or over which such Shareholder
exercises voting control.
(b) The Shareholder's obligation to vote, or cause to be voted,
such Shareholder's Shares in favor of the election of Xx. Xxxxx (or, if
applicable, a Xxxxx Designee) or Xx. Xxxxx (or, if applicable, a Kogod Designee)
to the Board of Trustees of Vornado REIT, as the case may be, pursuant to
Section 2(a) of this Agreement shall terminate with respect to the first to die
of either Xx. Xxxxx or Xx. Xxxxx (but such obligation shall continue with
respect to the survivor of either Xx. Xxxxx or Xx. Xxxxx, as the case may be).
(c) Upon the death of both Messrs. Xxxxx and Kogod, any person who
is appointed or nominated jointly by the Xxxxx Family and the Kogod Family
pursuant to Section 4.3(c) of the Merger Agreement (the "Joint Nominee") to the
Board of Trustees of Vornado REIT shall continue to serve as a trustee and each
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Shareholder shall vote such Shareholder's Shares in favor of the election of the
Joint Nominee at every meeting of the shareholders of Vornado REIT at which such
matter is considered and at every adjournment thereof for the Minimum Term.
3. No Voting Trusts. Each Shareholder agrees that such Shareholder will
not, nor will such Shareholder permit any Affiliate (as defined below) to,
deposit any of such Shareholder's Shares in a voting trust or grant any proxies
or otherwise subject any of such Shareholder's Shares to any right, agreement,
arrangement or commitment with respect to the voting of such Shares inconsistent
with the express terms of this Agreement; provided, however, that, subject to
Section 4, nothing herein shall be deemed to restrict any Shareholder's right or
ability to sell, transfer, pledge or otherwise dispose of or encumber any of
such Shareholder's Shares at any time.
4. Disposition of Shares. Nothing contained herein shall be deemed to
require any Shareholder to own or hold beneficially or of record any Common
Shares or impose any limitation on any Shareholder's right or ability to sell,
transfer, pledge or otherwise dispose of or encumber any of such Shareholder's
Shares at any time; provided, however, that each Shareholder agrees that such
Shareholder shall not transfer such Shareholder's Shares to an Affiliate of such
Shareholder unless such Affiliate agrees prior to such transfer to be bound by
all of the terms and conditions of this Agreement by executing a counterpart
signature page to this Agreement and delivering the same to each of Messrs.
Xxxxx and Kogod. As used herein, "Affiliate," with respect to a Shareholder,
shall mean (i) an entity more than fifty percent (50%) of the voting interests
of which are held, directly or indirectly, beneficially or of record by such
Shareholder and (ii) in the case of a Shareholder that is a natural person, such
Shareholder's spouse and children, if any, and any trust substantially all the
beneficiaries of which are such Shareholder, his spouse and/or his children.
5. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto
fails to comply with the obligations imposed by this Agreement and that, in the
event of any such failure, the other party will not have an adequate remedy at
law or in damages. Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
6. Term of Agreement; Termination. The term of this Agreement shall
commence on the date hereof, and such term and this Agreement shall terminate
upon the earlier to occur of (i) six (6) years following the Effective Time or
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(ii) the date on which both a Xxxxx Designee and a Kogod Designee are no longer
entitled to be nominated to, and sit on, the Board of Trustees of Vornado REIT
under the Merger Agreement and this Agreement. Upon such termination, no party
shall have any further obligations or liabilities hereunder; provided, that such
termination shall not relieve any party from liability for any breach of this
Agreement prior to such termination.
7. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by all parties hereto. No waiver of any provisions
hereto by any party shall be deemed a waiver of any other provisions hereof by
any such party, nor shall any such waiver be deemed a continuing waiver of any
provisions hereof by such party.
8. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing, and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to the Shareholders, to:
Mr. Xxxxxx Xxxx
c/o Vornado Realty Trust
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Xx. Xxxxxxx Xxxxxxxxxx
c/o Vornado Realty Trust
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Interstate Properties
c/o Vornado Realty Trust
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxx Xxxx
Telecopy: (000) 000-0000
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With a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
If to Xx. Xxxxx, to:
Xx. Xxxxxx X. Xxxxx
c/o Xxxxxxx X. Xxxxx Commercial Realty L.L.C.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: J. Xxxxxx Xxxxxxx, Xx.
Xxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
If to Xx. Xxxxx, to:
Xx. Xxxxxx X. Xxxxx
c/o Xxxxxxx X. Xxxxx Commercial Realty L.L.C.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: J. Xxxxxx Xxxxxxx, Xx.
Xxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
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If to SCR GP, to:
Xxxxxxx X. Xxxxx Commercial Realty L.L.C.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: J. Xxxxxx Xxxxxxx, Xx.
Xxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
9. Miscellaneous.
(a) THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
MARYLAND, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PRINCIPLES.
(b) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid or unenforceable
by a court of competent jurisdiction, such provision or application shall be
unenforceable only to the extent of such invalidity or unenforceability, and the
remainder of the provision held invalid or unenforceable and the application of
such provision to persons or circumstances, other than the party as to which it
is held invalid, and the remainder of this Agreement, shall not be affected.
(c) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference shall
be derived therefrom.
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(e) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties without the
priorwritten consent of the other parties. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by and against, the parties and their respective successors and assigns.
* * * * * * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written.
/s/ XXXXXX XXXX
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Xxxxxx Xxxx
/s/ XXXXXXX XXXXXXXXXX
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Xxxxxxx Xxxxxxxxxx
Interstate Properties
By: Xxxxxx Xxxx, its general partner
/s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: General Partner
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx Commercial Realty L.L.C.
/s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Co-Chief Executive Officer
