Exhibit 7.4
AGREEMENT
THIS AGREEMENT is made as of the 20th day of March, 1996 by and among
Brandywine Realty Trust, a Maryland real estate investment trust (the "Trust"),
Xxxxxxx X. Xxxxxxx ("RMO") and the Xxxxxxx X. Xxxxxxx Trust ("RMO Trust") (RMO
and the RMO Trust are collectively referred to herein as the "Holders").
WHEREAS, as of the date hereof, the Holders beneficially own an
aggregate of 538,800 common shares of beneficial interest, par value $.01 per
share ("Common Shares"), of the Trust; and
WHEREAS, the Trust desires to obtain from the Holders, and the
Holders desire to obtain from the Trust, certain agreements, as set forth
herein.
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto agree as follows:
1. Nomination of RMO to the Board. During the term hereof, but
only for so long as the Holders are the beneficial owners of at least ten
percent (10%) of the outstanding Common Shares), the Trust agrees to nominate
either RMO or, in the discretion of RMO, any person designated by RMO who is
reasonably acceptable to a majority of the Board of Trustees of the Trust for
election to the Board of Trustees at each annual meeting of shareholders of the
Trust at which elections to the Board of Trustees are to be held, provided that
such agreement of the Trust shall terminate in the event (i) of the occurrence
of any matter relating to RMO or such designee that would require disclosure by
the Trust in any filing to be made by it with the Securities and Exchange
Commission of any of the events enumerated in Item 401(f) of Regulation S-K, as
now in effect or as amended from time to time (an "Item 401(f) Occurrence") or
(ii) RMO or such designee takes any action which could reasonably be expected
to have a material adverse effect on the Trust.
2. Waiver of Redemption Right. The Trust hereby waives its right
arising under Subtitle 7 of Title 3 of the Maryland General Corporation Law to
redeem any Common Shares currently owned by the Holders and any additional
Common Shares or Convertible Securities (as hereinafter defined) acquired after
the date hereof by the Holder up to the limits set forth in Section 3 hereof.
3. Share Ownership Limitation. During the term hereof, Holders
agree that they will not, directly or indirectly, purchase, acquire or own (of
record or beneficially) any Common Shares or any securities (collectively,
"Convertible Securities") which are or may become directly or indirectly
convertible into or exercisable for Common Shares if the effect of the
purchase, acquisition or ownership of such Common Shares or Convertible
Securities would be to increase the aggregate percentage of Common Shares
beneficially owned by the Holders to one-third or more of the outstanding
Common Shares plus the Common Shares that would be outstanding if the
Convertible Securities held by the Holders were converted or exercised. For
purposes of this Agreement, beneficial ownership shall be determined in the
manner prescribed by Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), but, for purposes of computing the
percentage of outstanding Common Shares beneficially owned by the Holders, the
Holders shall be deemed to be the beneficial owners of the total number of
Common Shares into which the Convertible Securities may be converted or for
which they may be exercised, whether or not such Convertible Securities are, at
the time in question, then convertible or exercisable. In the event that the
percentage of outstanding Common Shares beneficially owned by Holders falls
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below 9.8% during the term hereof, Holders will not thereafter increase their
beneficial ownership of Common Shares above 9.8% during the term hereof without
the prior consent of a majority of the Board of Trustees.
4. Proxy Solicitations. During the term hereof, Holders agree that
they will not: (i) other than, in the case of RMO or his designee, solely in
his capacity as a Trustee, consistent with the position of a majority of the
Board of Trustees, make or participate in, directly or indirectly, any
"solicitation" of "proxies" (as such terms are defined or used in Regulation
14A promulgated pursuant to the Exchange Act) or become a "participant" in any
"election contest" (as such terms are used in Regulation 14A) with respect to
the Trust, (ii) seek to encourage any third person to vote Common Shares in
opposition to the recommendation of a majority of the Board of Trustees, (iii)
propose any change in the Declaration of Trust of the Trust or (iv) assist any
attempt by any other person or entity to do any of the foregoing. During the
term hereof, if the Holders learn of any efforts by any third party to (i) make
or participate in, directly or indirectly, any solicitation of proxies or
become a participant in any election contest with respect to the Trust, (ii)
encourage any third person to vote Common Shares in opposition to the
recommendation of a majority of the Board of Trustees, (iii) propose any change
in the Declaration of Trust or (iv) assist any person or entity to do any of
the foregoing, the Holders will promptly inform the Board of Trustees.
5. Voting of Common Shares. During the term hereof, the Holders
agree to vote all Common Shares beneficially owned by them in accordance with
the recommendations of a majority of the Board of Trustees on any matter
submitted to a vote of shareholders other than on any of the following matters:
(i) a merger, consolidation or liquidation of the Trust or a sale by the Trust
of all or substantially all of its assets and (ii) any amendment to the
Declaration of Trust of the Trust which, in the reasonable judgment of a
majority of the Board of Trustees, adversely affects the rights of
shareholders. In any event, during the term hereof, the Holders agree to vote
all Common Shares beneficially owned by them in favor of (i) any financing for
which shareholder approval is sought, including without limitation, any
financing having the terms referenced in clause (ii) of the first sentence of
Section 9(a), and (ii) the SSI/TNC Transaction, provided that, in each case,
the financing or transaction is recommended by a majority of the Board of
Trustees. As used herein, the term "SSI/TNC Transaction" means the transaction
contemplated by the letter of intent among the Trust, Safeguard Scientifics,
Inc. ("SSI") and The Xxxxxxx Company, which letter of intent is being executed
on the date hereof.
6. Restrictions on Dispositions. During the term hereof, the
Holders shall not, directly or indirectly, sell, assign, transfer or otherwise
dispose of any Common Shares except: (i) in transactions under Rule 144
promulgated under the Securities Act of 1933, as amended; (ii) in a private
transaction to any person who is not then a business competitor of the Trust
and who, immediately following the transaction, would own less than five
percent (5%) of the outstanding Common Shares; (iii) in response to a bona fide
tender or exchange offer by a third party for at least 80% of the outstanding
Common Shares and supported by a majority of the Board of Trustees; (iv) in a
merger or statutory share exchange pursuant to which ownership of the Trust is
acquired by a third party; or (v) pursuant to the laws of descent and
distribution, provided that any person acquiring Common Shares pursuant to such
laws of descent and distribution shall hold them for the balance of the term
hereof subject to the agreements of the Holders contained in this Agreement.
During the term hereof, the Holders agree to enter into a customary "lock-up"
letter upon the request of the underwriters in connection with any public
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equity offering by the Trust, provided that all other holders of in excess of
ten percent (10%) of the Common Shares execute a substantially similar letter.
7. REIT Status. During the term hereof, the Holders agree not to
pursue any action which may disqualify the Trust's status as a real estate
investment trust under the Internal Revenue Code of 1986.
8. Legend. During the term hereof, the Trust may cause any
certificates evidencing Common Shares beneficially owned by the Holders to bear
a legend indicating the existence of this Agreement.
9. Term.
a. The term of this Agreement shall be for a period ending on
the earlier of the (i) third anniversary of the date of this Agreement or (ii)
completion by the Trust of a public or private equity offering yielding (a) at
least $35.0 million of net proceeds to the Trust at a price per share at least
equal to the per share book value of the Common Shares as of the end of the
most recently preceding quarter or (b) at least $25.0 million of net proceeds,
but less than $35.0 million of net proceeds, at a price per share of at least
$5.50.
b. Notwithstanding anything herein to the contrary, this
Agreement shall automatically terminate in the event that the Board of Trustees
does not recommend to shareholders of the Trust, in connection with the first
meeting of shareholders held after the date hereof, that they vote to restore
voting rights on all Common Shares now or hereafter owned by the Holders so
long as at no time shall the voting power on all Common Shares now or hereafter
beneficially owned by the Holders equal or exceed one-third of the voting power
of the capital stock of the Trust. In addition, notwithstanding anything
herein to the contrary, RMO may terminate this Agreement on or after November
1, 1996 in the event that, on or prior to October 31, 1996, SSI has not
executed an agreement containing (i) provisions substantially similar to those
contained herein (other than the limitation contained in the first sentence of
Section 3 hereof) and (ii) an agreement by SSI to vote any Common Shares it
acquires from the Trust, during the term of this Agreement, either (a) for the
election of RMO to the Board of Trustees so long as there has been no Item
401(f) Occurrence with respect to RMO or (b) for the election of a person
designated by RMO and reasonably acceptable to a majority of the Board of
Trustees; provided that RMO may not terminate this Agreement pursuant to the
forgoing clause in the event that, prior to the exercise of such termination
right, the Trust has previously furnished to its shareholders a proxy statement
containing an unrevoked recommendation of the Board of Trustees that
shareholders vote to restore voting rights on all Common Shares now or
hereafter owned by the Holders so long as such ownership does not equal or
exceed one-third of the outstanding Common Shares. In addition, in the event
that negotiations of the SSI/TNC Transaction terminate (as determined by a
majority of the Board of Trustees) prior to October 31, 1996 and the Trust has
not then furnished such a proxy statement to its shareholders, containing such
an unrevoked recommendation, RMO may, prior to such time as such a proxy
statement is so furnished to its shareholders, terminate this Agreement.
c. In the event that shareholders of the Trust do not vote to
restore voting rights on all Common Shares now or hereafter owned by the
Holders up to the one-third limit referenced in subparagraph b above at the
next meeting of shareholders, the Board of Trustees shall recommend to
shareholders that such voting rights be restored at the succeeding meeting of
shareholders. In connection with the next such meeting and, if necessary, the
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succeeding meeting, the Board shall use its best efforts to obtain a favorable
shareholder vote.
d. Nothing contained in this Section 9 shall affect the waiver
contained in Section 2 hereof, which waiver is unconditional. Upon expiration
or termination of the term, all rights and obligations of the parties hereto
shall terminate, except for any rights arising out of the breach by a party
hereto of his or its obligations hereunder.
10. Specific Performance and Remedies. The parties to this
Agreement acknowledge and agree that irreparable damage would occur to the
aggrieved party in the event that any provision of this Agreement is not
performed in accordance with its specific terms or is otherwise breached, and
acknowledge and agree that termination of this Agreement and monetary damages
would not provide adequate remedies. It is accordingly agreed that each of the
parties shall be entitled to injunctive relief to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States in addition to any other
remedy to which it may be entitled at law or in equity, including, without
limitation, monetary damages.
11. Expenses. All fees and expenses incurred by any party hereto
shall be borne by the party incurring them; provided that if any party incurs
expenses in an effort to enforce compliance by another party of its obligations
hereunder and prevails in such effort, the prevailing party shall be entitled
to recover such expenses from such other party.
12. Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, whether oral
or written, among the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended orally, but may be amended only by an
instrument in writing signed by each of the parties hereto.
13. Counterparts. For the convenience of the parties, any number of
counterparts of this Agreement may be executed by the parties hereto. Each
such executed counterpart shall be, and shall be deemed, an original
instrument, and all such executed counterparts shall be deemed to be one and
the same instrument.
14. Notices. All notices given hereunder shall be in writing and
delivered personally, or sent by telex, telecopier or registered mail, postage
prepaid, or by overnight delivery service, if to:
The Trust
Xxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telecopier No. (000) 000-0000
The Holders
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No. (000) 000-0000
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or to such other address, or such telex or telecopier number, as any party may,
from time to time, designate in a written notice given in like manner. Notice
given by overnight delivery service shall be deemed delivered on the day
following the date the same is accepted for next day delivery by said service.
Notice delivery by telecopier shall be deemed to be delivered when transmitted.
Notice delivered personally shall be deemed to be delivered when delivered to
the addressee.
15. Choice of Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Maryland,
without reference to the conflict of laws principles thereof.
16. Headings. The headings in this Agreement are for convenience
only and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
17. No Waiver. Any waiver by any party of a breach of any provision
of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term
of this Agreement shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
18. Severability. If any clause, provision or section of this
Agreement is held illegal or invalid by any court, the illegality or invalidity
of such clause, provision or section shall not affect any of the remaining
clauses, provisions or sections of this Agreement, and this Agreement shall be
construed and enforced as if such illegal or invalid clause, provision or
section had not been contained herein. In case any agreement or obligation
contained in this Agreement is held to be in violation of law, then such
agreement or obligation shall be deemed to be the agreement or obligation of
the applicable party hereto to the full extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
BRANDYWINE REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
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President
XXXXXXX X. XXXXXXX TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
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Trustee
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
