VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of
March 17, 1998 by and among Apartment Investment and Management Company, a
Maryland corporation ("AIMCO"), the undersigned stockholder of Insignia
Financial Group, Inc., a Delaware corporation ("IFG"), and IFG.
RECITALS
Concurrently with the execution of this Agreement, AIMCO, IFG and
Insignia/ESG, Inc., a Delaware corporation ("SpinCo") have entered into an
Agreement and Plan of Merger dated as of March 17, 1998 (the "Merger
Agreement"), providing for the merger of IFG with and into AIMCO, with
AIMCO being the surviving corporation (the "Merger"). The Merger Agreement
further contemplates that all of the issued and outstanding shares of
SpinCo, a wholly-owned subsidiary of IFG, shall be distributed to the
stockholders of IFG prior to the Merger. The stockholder named on the
signature page hereof (the "Stockholder") is the holder of record of at
least the number of shares of the outstanding common stock, par value $.01
per share, of IFG ("IFG Common Stock"), as is indicated on the final page
of this Agreement (the "Shares"), and the number of options to purchase
shares of IFG Common Stock as is indicated on the final page of this
Agreement (the "Options"). In consideration of and to induce the execution
of the Merger Agreement by AIMCO, the Stockholder agrees to vote the Shares
so as to facilitate consummation of the Merger to the extent more fully
described below.
NOW, THEREFORE, in consideration of the mutual promises and the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Agreement to Vote Shares. At any meeting of the
stockholders of IFG called with respect to the Merger and the Merger
Agreement, and at any adjournment thereof, and with respect to any consent
solicited with respect to the Merger and the Merger Agreement, the Spin-Off
and any related transactions, the Stockholder shall vote the Shares (a) in
favor of approval of the Merger and the Merger Agreement, the Spin-Off and
any matter which could reasonably be expected to facilitate the Merger and
such other transactions and (b) against any Acquisition Proposal as such
term is defined in the Merger Agreement. The Stockholder may vote on all
other matters. The Stockholder, as the holder of voting stock of IFG shall
be present, in person or by proxy, at all meetings of stockholders of IFG
and at any adjournment thereof so that all Shares are counted for the
purpose of determining the presence of a quorum at such meetings. This
Agreement is intended to bind the Stockholder only with respect to the
voting of his Shares as a Stockholder herein, and shall not prohibit the
Stockholder from acting in accordance with his fiduciary duties as an
officer or director of IFG.
2. Irrevocable Proxy. Concurrently with the execution of this
Agreement, the Stockholder agrees to deliver to AIMCO an irrevocable proxy
in the form attached hereto as Annex A (the "Proxy"), provided that the
Proxy shall be revoked only upon termination of the Call Option and
Purchase Price Adjustment Agreement of even date between AIMCO and Xxxxxx
X. Xxxxxx (the "Expiration Date"). The Proxy is irrevocable and coupled
with an interest in the obligations of Stockholder.
3. Definition of Shares. For purposes of this Agreement, the
term "Shares" shall (unless the Stockholder, MAP IV or MAP V (both as
hereinafter defined)) include any shares of IFG capital stock which the
Stockholder purchases for his own account or otherwise acquires for his own
account after the execution of this Agreement and prior to the Expiration
Date, including shares obtained upon exercise of Options, or upon
dissolution of Metropolitan Asset Partners IV L.P. ("MAP IV") and
Metropolitan Asset Partners V L.P. ("MAP V"). However, unless the
Stockholder is MAP IV or MAP V, "Shares" includes only those shares of IFG
Common Stock owned of record and beneficially by Stockholder and does not
include shares of IFG Common Stock beneficially owned by others
notwithstanding that such shares may be owned of record by Stockholder. As
to MAP IV and MAP V, "Shares" means only those shares of IFG Common Stock
as is indicated on the final page of this Agreement less any shares
distributed to Xxxxxx X. Fortras.
4. Representations, Warranties and Covenants of the
Stockholder. The Stockholder hereby represents, warrants and covenants to
AIMCO that, except as specifically described on Annex B to this Agreement,
(a) the Stockholder has duly authorized, executed and delivered this
Agreement and this Agreement is a legal, valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms; and neither the execution of this Agreement nor the consummation by
the Stockholder of the transactions contemplated hereby will constitute a
violation of or default under, or conflict with, any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which
the Stockholder is a party or by which the Stockholder is bound; (b) unless
the Stockholder is MAP IV or MAP V, as of the date hereof, the Shares and
the Options listed on the signature page of this Agreement represent all
the vested shares of IFG Common Stock and Options owned by the Stockholder
and there are no options, warrants or rights to purchase or acquire, or
agreements relating to, the Shares and Options other than this Agreement
and the Call Option and Price Adjustment Agreement of even date; (c) upon
dissolution of MAP IV and MAP V, the Stockholder will have (without
exception) good title to the Shares and Options free and clear of all
claims, liens, charges, encumbrances and security interest of any nature
whatsoever, except that the Stockholder may have pledged all or part of the
Shares to a bona fide financial institution which agrees in writing to be
bound by this Agreement or to AIMCO; (d) except for this Agreement and the
Irrevocable Proxy contemplated hereby, Stockholder is not a party to or
otherwise bound by any proxy, voting agreement or restriction which affects
the voting rights of the Shares or any shares underlying the Options or any
capital stock or other security of IFG; and (e) in the case of a
Stockholder which is a trust, the undersigned individual trustees of such
trust are lawful and duly appointed trustees of such trust and have full
power and authority on behalf of such trust to enter into this Agreement
and to consummate the transactions contemplated hereby.
5. Representations, Warranties and Covenants of AIMCO. AIMCO
represents, warrants and covenants to the Stockholder, as follows:
5.1. Due Authorization. This Agreement has been authorized
by all necessary corporate action on the part of AIMCO and has
been duly executed by a duly authorized representative of AIMCO.
5.2 Validity; No Conflict. This Agreement constitutes the
legal, valid and binding obligation of AIMCO. Neither the
execution of this Agreement by AIMCO nor the consummation of the
transactions contemplated hereby will result in a breach or
violation of the terms of any agreement by which AIMCO is bound
or of any decree, judgment, order, law or regulation now in
effect of any court or other governmental body applicable to
AIMCO.
6. Additional Documents. The Stockholder and AIMCO hereby
covenant and agree to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of AIMCO's legal counsel
or the Stockholder, as the case may be, to carry out the intent of this
Agreement.
7. Consent and Waiver. The Stockholder hereby gives any
consent or waivers that are reasonably required for the consummation of the
Merger and any related transactions under the terms of any agreement to
which the Stockholder is a party or pursuant to any rights the Stockholder
may have.
8. Miscellaneous.
8.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
8.2 Binding Effect and Assignment. This Agreement and all
of the provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns, but, except as otherwise specifically provided
herein, neither this Agreement nor any of the rights, interests
or obligations of the parties hereto may be assigned by any of
the parties without the prior written consent of the other.
8.3 Amendments and Modifications. This Agreement may not
be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the
parties hereto.
8.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that AIMCO will be irreparably harmed and that
there will be no adequate remedy at law for a violation of any of
the covenants or agreements of the Stockholder set forth herein.
Therefore, it is agreed that, in addition to any other remedies
which may be available to AIMCO upon such violation, AIMCO shall
have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means
available to it at law or in equity.
8.5 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and sufficient
if delivered in person, by commercial overnight courier service,
by confirmed telecopy, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) to the
respective parties as follows:
(a) if to AIMCO, to
Apartment Investment and Management Company
0000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
(b) if to IFG or Stockholder, to
Insignia Financial Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall only be effective upon receipt.
8.6 Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State
of New York without giving effect to principles of conflicts of
law.
8.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter
hereof, and supersedes all prior negotiations and understandings
between the parties with respect to such subject matter.
8.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
8.9 Effect of Headings. The section headings herein are
for convenience only and shall not affect the construction or
interpretation of this Agreement.
8.10 Termination. Notwithstanding anything else in this
Agreement, this Agreement and the Proxy, and all obligations of
the Stockholder under either of them, shall automatically
terminate as of the Expiration Date.
8.11 Capitalized Terms. Capitalized terms used and not
defined herein shall have the meaning ascribed to them in the
Merger Agreement.
8.12 IFG Action. IFG agrees to take whatever action may be
reasonably necessary to effect the transactions contemplated by
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed on the day and year first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: __________________________
Name: Xxxxx Xxxxxxxxx
Title: President
Shares Subject to this Agreement: [STOCKHOLDER]
____ shares of IFG Common Stock
By:___________________________
____ Options Subject to this
Agreement:
____ shares of IFG Common Stock
subject to the Options
INSIGNIA FINANCIAL GROUP,
INC.
By: __________________________
Name: Xxxxx X. Xxxxxxxx
Title: Executive Managing Director
ANNEX A
IRREVOCABLE PROXY
The undersigned holder of shares of capital stock (the "Stockholder")
of Insignia Financial Group, Inc., a Delaware corporation ("IFG"), hereby
irrevocably appoints and constitutes each of Xxxxx Xxxxxxxxx, Xxxxx
Xxxxxxxxx and Xxx Xxxxxx who are duly authorized representatives of
Apartment Investment and Management Company and each of them (the
"Proxyholders"), the agents and proxies of the undersigned, with full power
of substitution and resubstitution, to the full extent of the undersigned's
rights with respect to the shares of capital stock of IFG owned by the
undersigned and listed below (specifically excluding any shares
beneficially owned by a third party which are owned of record by the
Stockholder), which shares are listed below (the "Shares"), and any and all
other shares or securities issued or issuable in respect thereof or issued
in respect of the options listed below (the "Options"), on or after the
date hereof and prior to the date this proxy terminated, to vote the Shares
and other shares as follows:
The agents and proxies named above are empowered at any time prior to
termination of this proxy to exercise all voting and other rights
(including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of the stockholders of IFG, and in every
written consent in lieu of such a meeting, or otherwise, (a) in favor of
approval of the Merger, the Merger Agreement and the Spin Off (as such
terms are defined in the Voting Agreement dated as of the date hereof, by
and among IFG, the Stockholder and AIMCO (the "Voting Agreement")), and any
matter that could reasonably be expected to facilitate the Merger, the
Spin-Off and any related transactions and (b) against any Acquisition
Proposal as such term is defined in the Merger Agreement. The Proxyholders
may not exercise this proxy on any other matter. The Stockholder may vote
the Shares and other shares on all such other matters.
The proxy granted by the Stockholder to the Proxyholders hereby is
granted as of the date of this Proxy in order to secure the obligations of
the Stockholder set forth in Section 1 of the Voting Agreement, and is
irrevocable and coupled with an interest in such obligations and in the
interests in IFG held by Stockholder. This proxy will terminate upon the
Expiration Date (as defined in the Voting Agreement).
Upon the execution hereof, all prior proxies given by the undersigned
with respect to the Shares and any and all other shares or securities
issued or issuable in respect thereof or issued in respect of the Options
on or after the date hereof are hereby revoked and no subsequent proxies
will be given until such time as this proxy shall be terminated in
accordance with its terms.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The Stockholder authorizes the
Proxyholders to file this proxy and any substitution or revocation of
substitution with the Secretary of IFG and with any Inspector of Elections
at any meeting of the stockholders of IFG.
This proxy is irrevocable and shall survive the insolvency,
incapacity, death or liquidation of the undersigned.
Dated: March 17, 1998
[STOCKHOLDER]
By: ______________________________
Shares and Options to which this Irrevocable Proxy relates:
________ shares of IFG Common Stock
________ Options for shares of IFG Common Stock
ANNEX B
ENCUMBRANCES UPON THE SHARES HELD BY THE UNDERSIGNED
