Exhibit 10.7
FORM OF ADVISOR LOCK-UP AGREEMENT
LOCK-UP AGREEMENT (this "Agreement"), dated as of June ___, 1999,
between [Name] (the "Original Shareholder") and Xxxxxxxxx & Co., LLC, a New York
limited liability company (the "Representative").
RECITALS
A. Pursuant to the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of June ___, 1999, by and among Starwood Financial Trust,
a Maryland real estate investment trust ("Starwood"), ST Merger Sub, Inc., a
Maryland corporation ("Starwood Sub"), and TriNet Corporate Realty Trust, Inc.,
a Maryland corporation ("TriNet"), Starwood, Starwood Sub and TriNet have
agreed, among other things, to enter into a transaction (the "Merger") in which,
subject to the terms and conditions of the Merger Agreement, Starwood Sub will
merge with and into TriNet, with TriNet being the surviving corporation.
B. Pursuant to an Agreement and Plan of Merger (the "Incorporation
Merger Agreement"), dated as of June __, 1999, by and between Starwood and
Starwood Financial, Inc., a newly-formed Maryland corporation ("New Starwood"),
Starwood intends to merge with and into New Starwood (the "Incorporation
Merger").
C. Immediately prior to the consummation of the Merger, pursuant to
the Agreement and Plan of Merger and Contribution Agreement, dated as of June
__, 1999 (the "Advisor Transaction Agreement"), STW Holdings I, Inc., a Delaware
corporation, intends, among other things, to merge with and into a subsidiary of
New Starwood and Starwood Capital Group, a Connecticut limited liability
company, will contribute interests in certain other companies to such subsidiary
of New Starwood (the "Advisor Transaction"). Pursuant to the Advisor Transaction
Agreement, upon the consummation of the Advisor Transaction, the Original
Shareholder will receive Common Stock (as defined below). The parties hereto
wish to restrict the transfer of such Common Stock.
D. The continuing force and effect of this Agreement is a condition
precedent to the consummation of the Merger by TriNet.
In consideration of the foregoing and of the mutual covenants
contained herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. The following terms shall have the following
meanings for purposes of this Agreement:
2
"Affiliate" means, with respect to a Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
respect to any Person, means the power to direct or cause the direction of the
management or policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreed Counsel" means a reputable law firm other than those
retained by the parties to an Enforcement Action, which law firm is jointly
selected by the attorneys representing such parties and agreed-upon by such
parties.
"Board of Directors" means, with respect to a Person, the board of
directors, board of trustees, board of managers or similar body of such Person.
"Change of Control" means that the common shareholders of the
Company immediately prior to the consummation of a merger, consolidation,
acquisition of assets or securities or a disposition of assets or securities
(other than a public offering of common stock), own less than 50% of the equity
of the surviving or successor entity resulting from such transaction.
"Closing Date" shall have the meaning ascribed to it in the Merger
Agreement.
"Common Stock" means, (i) prior to the consummation of the
Incorporation Merger, Starwood Common Stock and (ii) subsequent to the
consummation of the Incorporation Merger, New Starwood Common Stock.
"Company" means, prior to the consummation of the Incorporation
Merger, Starwood and, subsequent to the consummation of the Incorporation
Merger, New Starwood.
"Deed of Adherence" means a Deed of Adherence to this Agreement
substantially in the form of Exhibit 1 hereto.
"Enforcement Action" shall have the meaning ascribed to it in
Section 4.2 hereof.
"New Starwood Common Stock" means the common stock, par value $0.001
per share, of New Starwood.
"Permitted Holders" means (i) with respect to a Person other than a
natural person, all Affiliates of such Person and (ii) with respect to a Person
who is a natural person, the spouse or any lineal descendant of such Person, a
trust established for the benefit of any of the foregoing or any personal
representative, estate or executor under any will of such Person or pursuant to
the laws of intestate succession, that, in either case (i) or (ii), has executed
a Deed of Adherence.
3
"Permitted Transfer" means a Transfer permitted by Section 3 hereof.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Pro Rata Share" means, (i) with respect to a Person other than the
Representative, the fraction, the numerator of which is the number of shares of
Common Stock then owned as of record by such Person and the denominator of which
is the total number of shares of Common Stock then outstanding and (ii) with
respect to the Representative, zero.
"Rightholder" means each of (i) the Representative and (ii) each
third-party beneficiary described in Section 7.2 hereof.
"Representative Contact Persons" means those individuals listed on
Schedule A hereto and any other employees or agents of the Representative
appointed to be Representative Contact Persons by written notice provided to the
Original Shareholder.
"Restricted Security" means all Starwood Common Stock, New Starwood
Common Stock and any other securities convertible into, exchangeable for or
exercisable for, Starwood Common Stock or New Starwood Common Stock, in each
case, that was received by the Original Shareholder in connection with the
Advisor Transaction but only for so long as such securities are subject to the
transfer restrictions contained in Section 2.1 and 2.2 hereof.
"Shareholder" means each of the Original Shareholder and any other
Persons who hold Restricted Securities and execute a Deed of Adherence in
accordance with Section 2.2 hereof.
"Starwood Common Stock" means the Class A shares of beneficial
interest, par value $1.00 per share, and the Class B shares of beneficial
interest, par value $0.01 per share, of Starwood.
"Stock Dividend" shall have the meaning ascribed to it in the Merger
Agreement.
"Transfer" shall have the meaning ascribed to it in Section 2.1
hereof.
4
"Warranted" means, with respect to an Enforcement Action, that such
Enforcement Action was based on the best knowledge, information and belief,
formed after an inquiry reasonable under the circumstances, of the parties
bringing such Enforcement Action that this Agreement has been breached and that
such Enforcement Action was not presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in litigation costs.
References in this Agreement to a "party" or "parties" are references to a party
or parties (respectively) to this Agreement unless the context requires
otherwise. Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings ascribed to them by the Merger Agreement.
Section 2. Transfer Restrictions. Except as provided in Section 3
hereof:
2.1 During the period from the date hereof until the date
falling 12 months after the Closing Date, no Shareholder shall directly or
indirectly sell, pledge, encumber, transfer, enter into any voting or similar
agreement with respect to or otherwise dispose of (collectively, "Transfer") or
enter into any agreement or series of agreements to Transfer, any Restricted
Securities other than to a Permitted Holder. For the avoidance of doubt, the
term "Transfer" shall not include any conversion or exchange occurring by
operation of law.
2.2 No Shareholder shall adopt a plan for liquidation or
dissolution of such Shareholder or make any distributions of the Restricted
Securities to any Persons in respect of such Shareholder's capital stock or
other ownership interests unless all Persons that will receive Restricted
Securities in connection with such liquidation, dissolution or distribution have
executed a Deed of Adherence.
Section 3. Exceptions to Transfer Restrictions. The restrictions set
forth in Section 2 hereof shall not apply to (i) a Transfer of Restricted
Securities that is made by the Shareholder in response to a "tender offer" with
respect to which the completion of such tender offer is conditioned upon such
completion resulting in a Change of Control; (ii) a Transfer of Restricted
Securities that is made to the Person (or any Affiliate of such Person)
receiving control of the Company as a result of a Change of Control; (iii) a
pledge of Restricted Securities that is made in order to establish a margin
account at a reputable brokerage firm; (iv) a pledge of Restricted Securities to
a lender in order to effect a bona-fide loan or financing transaction with such
lender which transaction is not intended to circumvent the transfer restrictions
of Section 2 hereof; (v) a Transfer of Restricted Securities to the lender or
brokerage firm that is the pledgee with respect to a pledge described in clause
(iii) or (iv) above, or to an Affiliate of such lender or such brokerage firm or
to a purchaser in a foreclosure sale; and (vi) a Transfer that occurs because of
entry by the Shareholders into a voting
5
agreement, proxy or other arrangement deemed reasonably necessary by the Board
of Directors of the Company to effectuate a merger, consolidation, amalgamation
or other business combination that has been approved by the Board of Directors
of the Company; and (vii) the granting of a proxy with respect to any annual or
special meeting of the shareholders of the Company. For the avoidance of doubt,
all Restricted Securities Transferred pursuant to exceptions (i), (ii) and (v)
listed in this Section 3 shall no longer be deemed to be Restricted Securities
subsequent to such Transfer.
Section 4. Remedies.
4.1 The parties declare and agree that it is impossible to
measure in money the damages that would be suffered by a party by reason of the
failure by any other party to perform any of its obligations under this
Agreement. Therefore, if any party institutes any action or proceeding to
enforce the provisions of this Agreement, any party against whom such action or
proceeding is brought hereby waives any claim or defense therein that the other
party has an adequate remedy at law and, consequently, the parties hereby agree
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement.
4.2 If any Rightholder or group of Rightholders institutes any
action or proceeding (an "Enforcement Action") to enforce the provisions of this
Agreement against a Shareholder:
4.2.1 If (i) such Enforcement Action results in a court
of competent jurisdiction entering a final judgment in favor of such Shareholder
and (ii) Agreed Counsel determines that such Enforcement Action was Warranted,
each Rightholder bringing such Enforcement Action shall pay such Shareholder an
amount equal to the product of (x) such Rightholder's Pro Rata Share times (y)
the reasonable costs and expenses (including the fees and disbursements of
attorneys other than Agreed Counsel) of such Shareholder incurred in connection
with the resolution of such Enforcement Action, and the fees and disbursements
of Agreed Counsel shall be borne equally among all parties to such Enforcement
Action.
4.2.2 If (i) such Enforcement Action results in a court
of competent jurisdiction entering a final judgment in favor of such Shareholder
and (ii) Agreed Counsel determines that such Enforcement Action was not
Warranted, the Rightholders bringing such Enforcement Action (other than the
Representative) shall pay such Shareholder an amount equal to the reasonable
costs and expenses (including the fees and disbursements of attorneys other than
Agreed Counsel) of such Shareholder incurred in connection with the resolution
of such Enforcement Action,
6
and the fees and disbursements of Agreed Counsel shall be borne equally among
the Rightholders instituting such Enforcement Action.
4.2.3 If such Enforcement Action results in a court of
competent jurisdiction entering a final judgment against such Shareholder, the
Shareholder shall pay each Rightholder bringing such Enforcement Action an
amount equal to the reasonable costs and expenses (including the fees and
disbursements of attorneys) of such Rightholder incurred in connection with the
resolution of such Enforcement Action.
4.2.4 Otherwise, each party shall bear its own expenses
incurred in connection with the resolution of Enforcement Actions.
4.3 If any amount payable under Section 4.2 hereof is not paid
in full by the party liable for such amount (the "Liable Party") within 30
calendar days after written notice requesting such payment is provided to the
Liable Party by the party entitled to such amount (the "Entitled Party"), the
Entitled Party may provide written notice to the Company of such failure to pay
and the amount owed by the Liable Party. Upon receipt of such notice, the
Company shall not make any distributions (whether cash or otherwise) to the
Liable Party in respect of its equity interests in the Company and shall make
such distributions to the Entitled Party until the amount of such distributions
made to the Entitled Party equals the amount owed by the Liable Party.
4.4 Any Rightholder (other than the Representative) bringing
an Enforcement Action shall not hold fewer than 100 shares of Common Stock
during the pendency of such Enforcement Action.
Section 5. Term and Termination. Unless earlier terminated by a
writing executed by all parties, this Agreement shall terminate on the date
falling 12 months and one day after the Closing Date.
Section 6. Representations and Warranties. The Original Shareholder
represents and warrants that:
6.1 As of the date hereof, the Original Shareholder has all
requisite power and authority to enter into this Agreement, and the consummation
of all transactions contemplated by this Agreement have been duly authorized by
all necessary action on its part;
6.2 As of the date hereof, this Agreement has been duly
executed and delivered by the Original Shareholder and constitutes the valid and
binding agreement of it and is enforceable against it in accordance with its
terms,
7
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity;
6.3 As of the date hereof, the execution, delivery and
performance of this Agreement by the Original Shareholder does not and will not
violate or conflict with any organizational document, Law, contract, instrument
or arrangement to which it is a party or by which it is bound;
6.4 Both upon consummation of the Incorporation Merger and on
the Closing Date, the Original Shareholder will be the record holder and
beneficial owner of the securities described on Schedule 6.4 hereto, free and
clear of any and all liens, charges, encumbrances, pledges, voting agreements or
other commitments of any kind (in each case, assuming the consummation of the
Merger, the Advisor Transaction and the Incorporation Merger), other than
Permitted Transfers;
6.5 Both upon consummation of the Incorporation Merger and on
the Closing Date, the Original Shareholder will own (either beneficially or of
record) no Restricted Securities other than the securities described on Schedule
6.4 hereto (in each case, assuming the consummation of the Merger, the Advisor
Transaction and the Incorporation Merger) except for (i) Class B shares of
beneficial interest of Starwood, par value $0.01 per share ("Class B Shares"),
and (ii) Class A shares of beneficial interest of Starwood, par value $1.00 per
share ("Class A Shares"), issued to the Original Shareholder pursuant to the
Stock Dividend; provided that between the date hereof and the Closing Date,
Restricted Securities may be Transferred in a Permitted Transfer;
6.6 The Original Shareholder will be, on both the date the
Advisor Transaction is consummated and the Closing Date, the record holder and
beneficial owner of the securities described on Schedule 6.6 hereto, free and
clear of any and all liens, charges, encumbrances, pledges, voting agreements or
other commitments of any kind (in each case, assuming the consummation of the
Merger and the Advisor Transaction but not the consummation of the Incorporation
Merger), other than Permitted Transfers; and
6.7 As of the date hereof, the Original Shareholder owns
(either beneficially or of record), and on the Closing Date, will own (either
beneficially or of record), no Restricted Securities other than the securities
described on Schedule 6.6 hereto (in each case, assuming the consummation of the
Merger and the Advisor Transaction but not the consummation of the Incorporation
Merger) except for (i) Class B Shares and (ii) Class A Shares issued to the
Original Shareholder pursuant to the Stock Dividend; provided that between the
date hereof and the Closing Date, Restricted Securities may be Transferred in a
Permitted Transfer.
Section 7. Miscellaneous.
8
7.1 Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally or sent by
registered mail or overnight delivery service, in either case postage prepaid,
or delivered by telecopy, facsimile or similar telecommunications equipment. Any
such notice shall be deemed given when so delivered personally or, if sent by
registered mail, five days after the date of deposit in the mails or, if sent by
overnight delivery service, on the business day following deposit with such
delivery service or, if delivered by telecopy, facsimile or similar
telecommunications equipment, at the time of receipt thereof, as follows:
If to the Original Shareholder, to:
c/o Starwood Capital Group, L.L.C.
Three Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Madison Xxxxx
Telecopy: (000) 000-0000
with copies to:
Katten, Muchin & Zavis
000 X. Xxxxxx Xx. #0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
If to the Representative, to:
Xxxxxxxxx & Co., LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
All correspondence must be sent to the attention of
a Representative Contact Person
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Xx.
9
Any party may, by notice to the other parties, designate another address or
person for receipt of notices hereunder. Any additional parties agreeing to be
bound by the terms of this Agreement who execute a Deed of Adherence shall
receive notices hereunder at the location specified in such Deed of Adherence.
7.2 At any given time, all holders of Common Stock who then
hold 100 or more shares of Common Stock are hereby acknowledged (as of such
time) as intended third-party beneficiaries of this Agreement. The rights and
privileges granted under this Agreement to the Rightholders shall inure to the
benefit of such holders, and the provisions of this Agreement shall be binding
upon any such holder who brings an Enforcement Action. Any waiver of a provision
of this Agreement granted by the Representative pursuant to Section 7.5 hereof
shall be binding upon and effective against all Rightholders.
7.3 In the event any provision hereof is held void or
unenforceable by any court, such provision shall be severable and shall not
affect the remaining provisions hereof.
7.4 This Agreement reflects the entire agreement among the
parties and supersedes all prior agreements and communications, either oral or
in writing, among the parties with respect to the subject matter hereof;
provided that, for the avoidance of doubt, this provision shall not affect the
validity of the Engagement Letter (the "Engagement Letter") between the
Representative and TriNet, dated as of June __, 1999, and, in the event of any
conflict between the terms and provisions of this Agreement and those of the
Engagement Letter, the terms and provisions of the Engagement Letter shall
prevail.
7.5 This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived (i) in the case of a
waiver by the Rightholders, by a written instrument signed on behalf of the
Representative by any Representative Contact Person; (ii) in the case of a
waiver by any other parties, by an written instrument signed by all such parties
waiving compliance. 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 cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at law or
in equity. The Representative shall not be liable for any error of judgment or
any action taken, suffered or omitted to be taken under this Agreement except in
the case of its gross negligence, bad faith or willful misconduct. The
Representative may consult with counsel of its own choice and shall have full
and complete authorization and protection
10
for any action taken or suffered by it under this Agreement in good faith and in
accordance with the opinion of such counsel.
7.6 This Agreement may not be assigned by any party without
the prior written consent of the other parties except in connection with a
transfer of Restricted Securities in accordance with this Agreement. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted transferees from and
after the date hereof.
7.7 Each of the parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
7.8 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE (WITHOUT REGARD TO THE CONFLICTS
OF LAWS, PRINCIPLES OF SUCH STATE).
7.9 Each party to this Agreement agrees that all disputes
between them arising out of or relating to the relationship established between
them in connection with this Agreement, whether arising in contract, tort,
equity, or otherwise, shall be resolved only by federal courts located in New
York, New York, to the extent such courts have jurisdiction. Each of the parties
waives any objection that each may have (including, without limitation, any
objection to the laying of venue or based on forum non conveniens) to the
location of the court in which any proceeding is commenced in accordance with
this paragraph. Each party waives personal service of any process upon him or it
and irrevocably consents to service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage pre-paid, to such persons address
specified in this Agreement or such other address designated by such person in
accordance with the terms of this Agreement.
7.10 No partner or member in, a Shareholder or the
Representative shall have any individual or personal liability on account of
this Agreement, and no officer, director, member, shareholder or partner of any
such partner or member shall have any individual or personal liability on
account of this Agreement unless, in either case, such Person has executed a
Deed of Adherence. For the avoidance of doubt, no negative or deficit capital
accounts shall be considered to be assets of a Shareholder or other Person, and
no obligation of a partner or member to contribute capital or make loans shall
be considered such an asset.
11
7.11 This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
[Name of Original Shareholder]
________________________________
S-1
XXXXXXXXX & CO., LLC
By: ___________________________
Name: Xxxxx X. Xxx
Title: Managing Director
S-2
Accepted and agreed
as to Section 4.3:
STARWOOD FINANCIAL TRUST
By _______________________
Name:
Title:
S-3
Exhibit 1
DEED OF ADHERENCE
THIS DEED OF ADHERENCE is made the __________ day of _________
AMONG:
(#) [The Persons then party to the Agreement]; and
(#) [Name of New Shareholder] (the "New Shareholder").
WHEREAS:
(A) On the ___ day of June 1999, the Original Shareholder and the Rightholders
entered into a Lock-up Agreement (the "Agreement") to which a form of this
Deed is attached as Exhibit 1.
(B) The New Shareholder wishes to [have transferred to him/her/it] [______]
shares of [designate security to be transferred] (the "Shares"), from
[name of Old Shareholder] (the "Old Shareholder") and in accordance with
Section 2.3 of the Agreement or as a Permitted Transferee has agreed to
enter into this Deed.
NOW THIS DEED WITNESSES as follows:
1. Interpretation.
In this Deed, except as the context may otherwise require, all capitalized
terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Agreement.
2. Covenant.
The New Shareholder hereby covenants with and to the Rightholders and the
other Shareholders, to adhere to and be bound by all the duties, burdens
and obligations of a Shareholder under the Agreement and all documents
expressed in writing to be supplemental or ancillary thereto as if the New
Shareholder had been a Shareholder under the Agreement since the date
thereof.
3. Enforceability.
2
Each other Shareholder and the Rightholders shall be entitled to enforce
the Agreement against the New Shareholder, and the New Shareholder shall
be entitled to all rights and benefits of the Old Shareholder (other than
those that are non-assignable) under the Agreement in each case as if the
New Shareholder had been a Shareholder under the Agreement since the date
thereof.
4. Representations and Warranties.
The New Shareholder represents and warrants as of the date hereof that:
(i) the New Shareholder has all requisite power and authority to enter
into this Deed and the Agreement, and the consummation of all transactions
contemplated by this Deed and the Agreement have been duly authorized by
all necessary action on its part; (ii) this Deed has been duly executed
and delivered by the New Shareholder, and this Deed and the Agreement
constitute the valid and binding agreements of it and are enforceable
against it in accordance with their terms; and (iii) the execution,
delivery of this Deed and performance of this Deed and the Agreement by
the New Shareholder does not and will not violate or conflict with any
organizational document, Law, contract, instrument or arrangement to which
it is a party or by which it is bound.
5. Notices.
All notices to the New Shareholder under Section 7.1 of the Agreement
shall be delivered to:
[Contact Information]
6. Governing Law.
THIS DEED OF ADHERENCE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
IN WITNESS WHEREOF, this Deed of Adherence has been executed as a
deed on the date first above written.
[Appropriate Signature Block]
Schedule A
The Representative Contact Persons shall be:
1. Xx. Xxxxxx X. Xxxxxxxxx
2. Xx. Xxxxx X. Xxx
