FIRST AMENDMENT AND JOINDER OF VOTING AGREEMENT
Exhibit 99.4
FIRST AMENDMENT AND JOINDER
OF VOTING AGREEMENT
OF VOTING AGREEMENT
This First Amendment and Joinder of Voting Agreement (this “Agreement”) is entered into as of
this 27th day of June, 2007 by and among Xxxxxxx X. Xxxxxxxxx (“Xx. Xxxxxxxxx”), Xxxxx
X. Xxxxx (“Xx. Xxxxx”), Moon Acquisition Holdings LLC, a Delaware limited liability company
(“Parent”), and Moon Acquisition LLC, a Delaware limited liability company and a wholly-owned
subsidiary of Parent (“REIT Merger Sub” and, together with Parent, the “Purchaser Parties”).
WHEREAS, Xx. Xxxxxxxxx and the Purchaser Parties entered into a Voting Agreement, dated as of
May 22, 2007, pursuant to which Xx. Xxxxxxxxx agreed to vote all of the Rainwater Shares which he
is entitled to vote in his capacity as the beneficial holder of such Rainwater Shares, with respect
to certain matters (the “Voting Agreement”); and
WHEREAS, the parties hereto now desire to amend the Voting Agreement in order to correct an
error in the number of Rainwater Shares and to add Xx. Xxxxx as a party thereunder.
NOW THEREFORE, in consideration of the foregoing premises, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. The following new Section 1.1.2 shall be added to the Voting Agreement:
1.1.2 “Xxxxx Shares” means all Company Common Shares directly, indirectly or
beneficially owned, or controlled, by Xx. Xxxxx on the date hereof or hereinafter acquired,
including, without limitation, Company Common Shares acquired as a result of the conversion of
Units to Company Common Shares on or after the date hereof in accordance with the terms of the
Operating Partnership Agreement
2. Section 4.1 of the Voting Agreement shall be deleted in its entirety and replaced with the
following:
4.1 Ownership. Xx. Xxxxxxxxx directly, indirectly or
beneficially owns or controls 4,429,245 Company Common Shares and
5,463,862 Units. Xx. Xxxxx directly, indirectly or beneficially
owns or controls 744,704 Company Common Shares and 259,805 Units.
3. Effective as of the date hereof, Xx. Xxxxx shall become a party to the Voting Agreement, as
amended, and, with respect to the Xxxxx Shares, shall be entitled to the rights and benefits, and
shall be bound by the restrictions and obligations, of the Voting Agreement, as amended, in the
same capacity as Xx. Xxxxxxxxx is with respect to the Rainwater Shares;
provided, however, that notwithstanding anything to the contrary contained in the Voting Agreement,
as amended, (i) Xx. Xxxxx shall be permitted to sell, assign or transfer any of the Xxxxx Shares to
Xx. Xxxxxxxxx at any time, and (ii) Xx. Xxxxx shall be permitted to transfer any of the Xxxxx
Shares to a charitable remainder unitrust at any time, provided that after any transfer pursuant to
this clause (ii) Xx. Xxxxx shall retain beneficial ownership of, and voting power related to, the
Xxxxx Shares that have been so transferred.
3. Capitalized terms not expressly defined in this Agreement shall have the meanings ascribed
to them in the Voting Agreement.
4. Except as herein amended, the Voting Agreement is hereby ratified, confirmed, and
reaffirmed for all purposes and in all respects.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date
first written above.
XXXXXXX X. XXXXXXXXX |
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By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
Xxxxxxx X. Xxxxxxxxx | ||||
XXXXX X. XXXXX |
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By: | /s/ Xxxxx X. Xxxxx | |||
Xxxxx X. Xxxxx | ||||
MOON ACQUISITION HOLDINGS LLC, a Delaware limited liability company |
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By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Vice President | |||
MOON ACQUISITION LLC, a Delaware limited liability company |
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By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Vice President | |||
First Amendment and Joinder of Voting Agreement