Exhibit 3
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of April 15,
1997, by and among certain undersigned shareholders (each a "Shareholder" and
collectively, the "Shareholders") of Vornado Realty Trust, a Maryland real
estate investment trust (the "Company"), and Xxxxxxx X. Xxxxxx ("Xx. Xxxxxx").
WHEREAS, pursuant to that certain Master Consolidation Agreement, dated
as of March 12, 1997, among the Company, Vornado/Saddle Brook L.L.C. , a
Delaware limited liability company, The Mendik Company, L.P., a Delaware limited
partnership (the "Operating Partnership"), and various other parties defined
therein collectively as the Mendik Group (the "Consolidation Agreement"), the
Operating Partnership will acquire (through merger, contribution, transfer or
otherwise) the assets of the Company, the Mendik Property Interests (as defined
in the Consolidation Agreement) and substantially all of the interests in the
Management Business Assets (as defined in the Consolidation Agreement); and
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 the Company ("Common Shares") set forth opposite
such Shareholder's name on Schedule 1 hereto; and
WHEREAS, in order to induce the Mendik Group to enter into the
Consolidation Agreement and to consummate the Consolidation 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.
Xxxxxx to the Board of Trustees of the Company.
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 Xx. Xxxxxx 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.
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2. Agreement to Vote Shares. 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 Xx. Xxxxxx to the Board of Trustees of the Company at every
meeting of the shareholders of the Company at which such matter is considered
and at every adjournment thereof. 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 during the term of this Agreement or over which such
Shareholder exercises voting control.
3. No Voting Trusts. Each Shareholder agrees that such
Shareholder will not, nor will such Shareholder permit any Affiliate 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 Xx. Xxxxxx. 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
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earliest to occur of (i) March 31, 2003; (ii) the date that Xx. Xxxxxx ceases to
own beneficially or control Common Shares and Units (as defined in the
Consolidation Agreement) representing at least 80% of the Mendik Initial
Investment (for purposes of this clause (ii), the calculation of the number of
Common Shares and Units beneficially owned by Xx. Xxxxxx shall include those
Common Shares and Units comprising any part of the Mendik Initial Investment
which have been subsequently transferred or conveyed to, and held continuously
by, any trust exclusively for the benefit of Xx. Xxxxxx, his spouse, his lineal
descendants and/or any charitable organizations); (iii) the death, Disability
(as defined below) or criminal indictment of Xx. Xxxxxx or the occurrence of an
act by Xx. Xxxxxx in connection with the business and affairs of the Company or
the Operating Partnership that constitutes fraud, gross negligence or willful
misconduct, or the removal of Xx. Xxxxxx from the Board of Trustees of the
Company pursuant to the Amended and Restated Declaration of Trust of the
Company, as may be amended from time to time (the "Charter"); (provided,
however, that each Shareholder agrees that, in connection with any vote of the
shareholders of the Company to remove Xx. Xxxxxx from the Board of Trustees of
the Company pursuant to the Charter during the term of this Agreement, such
Shareholder will either abstain from such vote or vote (or cause to be voted)
its Shares proportionally in accordance with the votes of the other holders of
Common Shares). As used herein, "Disability" means the illness, physical or
mental disability, or other incapacity, of Xx. Xxxxxx which has continued for at
least 180 consecutive days. As used herein, "Mendik Initial Investment" means
the aggregate number of Common Shares and Units acquired by Xx. Xxxxxx and
certain of his affiliates in the Consolidation as identified on Schedule 2
hereto, as such number may be adjusted from time to time in the event of any
share dividend or split, recapitalization, merger, consolidation, spinoff,
combination or exchange of Common Shares or other corporate change, or any
distributions to holders of Common Shares other than regular cash dividends.
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):
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If to the Shareholders, to:
Mr. Xxxxxx Xxxx
c/o Vornado Realty Trust
Park 00 Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Xx. Xxxxxxx Xxxxxxxxxx
c/o Vornado Realty Trust
Park 00 Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Interstate Properties
c/o Vornado Realty Trust
Park 00 Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Mr. Xxxxxx Xxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
If to Xx. Xxxxxxx X. Xxxxxx to:
Xx. Xxxxxxx X. Xxxxxx
c/o The Mendik Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
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Attention: J. Xxxxxx Xxxxxxx, Xx.
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.
(e) Capitalized terms used but not defined in
this Agreement shall have the respective meanings assigned to such terms in the
Consolidation Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
/s/ MR. XXXXXX XXXX
MR. XXXXXX XXXX
/s/XX. XXXXXXX XXXXXXXXXX
XX. XXXXXXX XXXXXXXXXX
Interstate Properties
By: /s/ XXXXXX XXXX
General Partner
/s/ XXXXXXX XXXXXX
XXXXXXX XXXXXX
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