FORM OF VOTING AGREEMENT
Exhibit 99.9
FORM OF VOTING AGREEMENT
VOTING AGREEMENT, dated as of November , 2006 (this “Agreement”), among SSPF/CET
Operating Company LLC, a Delaware limited liability company (“Acquiror”), SSPF/CET OP Holding
Company LLC, a Delaware limited liability company (“Merger Subsidiary”), SSPF/CET OP Holding
Company Subsidiary L.P., a Virginia limited partnership (“Partnership Merger Subsidiary”), and the
undersigned holder (“Holder”) of Partnership LP Units and/or LTIP Units of Columbia Equity, L.P., a
Virginia limited partnership (“Partnership”).
WHEREAS, as of the date hereof, Holder beneficially owns the number of Partnership LP Units
and/or LTIP Units of the Partnership set forth on Holder signature page hereto (all Units so owned
and all other Units that may hereafter be acquired by Holder prior to the Expiration Date, whether
upon exercise of options, purchase, conversion of LTIP Units, dividend, distribution or otherwise,
being referred to herein as such Holder’s “Partnership Units”);
WHEREAS, Acquiror, Merger Subsidiary, Partnership Merger Subsidiary, the Partnership and
Columbia Equity Trust, Inc., a Maryland corporation (the “Company”), have entered into an Agreement
and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), which provides, upon the
terms and subject to the conditions set forth therein, for the merger of the Company with and into
the Merger Subsidiary (the “Company Merger”) and the merger of Partnership Merger Subsidiary with
and into the Partnership (the “Partnership Merger”); and
WHEREAS, as a condition to the willingness of Acquiror, Merger Subsidiary and Partnership
Merger Subsidiary to enter into the Merger Agreement, each of them has required that Holder agree,
and in order to induce the them to enter into the Merger Agreement, Holder has agreed, to enter
into this Agreement.
Capitalized terms used but not otherwise defined in this Agreement have the meanings assigned
to such terms in the Merger Agreement.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
Article I.
VOTING OF PARTNERSHIP UNITS
VOTING OF PARTNERSHIP UNITS
Section 1.1 Voting Agreements. Until the Expiration Date (as hereinafter defined), at every
meeting of the holders of Partnership Units called, and at every adjournment thereof, and
on every action or approval by written consent of the holders of Partnership Units, Holder (in
its capacity as such) shall vote or cause its Partnership Units to be voted in favor of approval of
the Merger Agreement and the Partnership Merger; provided, however, notwithstanding any other
provision contained herein, any vote by Holder in accordance with this sentence shall not be
effective unless and until the Company shall have obtained the necessary Stockholder Approval in
connection with the approval and adoption of the Merger Agreement and the Company Merger by the
stockholders of the Company. At any meeting of the holders of Partnership Units, or at any
adjournment thereof, or in any other circumstances upon which their vote, consent or other approval
is sought, the Holder shall vote (or cause to be voted) the Partnership Units against (i) any
Acquisition Proposal or any action which is a component of any Acquisition Proposal, (ii) any
merger agreement or merger (other than the Merger Agreement and the Partnership Merger),
reorganization, recapitalization, dissolution, liquidation or winding up of or by the Partnership,
and (iii) any amendment of the Partnership Agreement, which amendment would result in a breach of a
representation, warranty or covenant of the Company or the Partnership under the Merger Agreement
or would in any manner prevent or materially impede, interfere with or delay the Partnership
Merger, the Company Merger, the Merger Agreement or any of the other transactions contemplated by
the Merger Agreement (each of clauses (i), (ii) and (iii), a “Competing Partnership Transaction”).
Section 1.2 Grant of Irrevocable Proxy with Respect to Partnership Units. (a) Holder hereby
irrevocably (to the fullest extent permitted by law) appoints Xxxxx Xxxxx, Xxxxxxxxx X. Xxxx and
Xxxxxx X. Xxxxxxx, and each of them, as Holder’s sole and exclusive attorneys-in-fact and proxies,
with full power of substitution and re-substitution, to vote the Partnership Units and to exercise
all voting, consent and similar rights of Holder with respect to the Partnership Units (including,
without limitation, the power to execute and deliver written consents) at every annual, special or
adjourned meeting of the holders of Partnership Units and in every written consent in lieu of such
meeting (i) in favor of approval of the Merger Agreement and the Partnership Merger and (ii)
against any Competing Partnership Transaction. It is understood and agreed that the
attorneys-in-fact and proxies named above may not exercise these voting rights on any other matter
except as provided above. Except as set forth in this Agreement, Holder may vote the Partnership
Units on all other matters.
(b) Upon Holder’s execution of this Agreement, any and all prior proxies given by Holder with
respect to any Partnership Units are hereby revoked.
(c) Holder hereby affirms that the proxy set forth in this Section 1.2 is irrevocable (to the
fullest extent permitted by law) except pursuant to the termination of this Agreement in accordance
with its terms (in which event the proxy set forth herein shall automatically terminate and be of
no further force or effect without any further action of Holder required), is coupled with an
interest and is granted in consideration of the Acquiror entering into the Merger Agreement. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of
the VRULPA.
Section 1.3 Transfer of Partnership Units.
(a) Transferee of Partnership Units to be Bound by this Agreement. Holder agrees that, during
the period from the date of this Agreement through the Expiration Date, other than by operation of
Law as part of the Company Merger or the Partnership Merger or in any offer to exchange Partnership
Units for the Partnership Merger Consideration, Holder shall not cause or
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permit any Transfer (as
defined below) of any of the Partnership Units to be effected without Acquiror’s prior written
consent to such Transfer, which consent shall not be unreasonably withheld, and unless each Person
to which any of such Partnership Units, or any interest in any of such Partnership Units, is or may
be Transferred shall have: (a) executed a counterpart of this Agreement and (b) agreed in writing
to hold such Partnership Units (or interest in such Partnership Units) subject to all of the terms
and provisions of this Agreement; provided, however, that Holder shall be entitled to Transfer
Partnership Units (or any interest in such Partnership Units) to an immediate family member (or
trust for the benefit of an immediate family member) or an Affiliate of such Holder if such family
member, trust or Affiliate shall have (1) executed a counterpart of this Agreement and (2) agreed
in writing to hold such Partnership Units (or interest in such Partnership Units) subject to all of
the terms and provisions of this Agreement. Holder shall be deemed to have effected a “Transfer”
of a Partnership Unit if the Holder directly or indirectly: (i) sells, pledges, encumbers, grants
an option with respect to, transfers or otherwise disposes of such Partnership Units or any
interest in such Partnership Units; or (ii) enters into an agreement or commitment providing for
the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or other
disposition of such Partnership Unit or any interest therein.
(b) Transfer of Voting Rights. Holder agrees that, during the period from the date of this
Agreement through the Expiration Date, Holder shall not deposit (or permit the deposit of) any
Partnership Units in a voting trust or grant any proxy or enter into any voting agreement or
similar agreement in contravention of the obligations of Holder under this Agreement with respect
to any of the Partnership Units.
(c) Conversion of Partnership Units. At any time prior to the Partnership obtaining the
approval of the Partnership Merger, Holder shall not be entitled to tender its Partnership Units
for redemption in accordance with the First Amended and Restated Agreement of Limited Partnership
of the Partnership (the “Partnership Agreement”). Notwithstanding the foregoing, so long as voting
agreements in substantially the form of this Agreement are in effect with respect to Partnership
Units representing a majority of the Partnership Units of the Partnership, other than those held by
the Company, both before and after any redemption, Holder may tender Partnership Units for
redemption in accordance with the Partnership Agreement.
Section 1.4 Consent and Waiver. Holder (in its capacity as such) hereby gives any consents or
waivers that are reasonably required for the consummation of the Partnership Merger under the terms
of any agreements to which Holder is a party or pursuant to any rights Holder may have.
Section 1.5 Solicitation. Holder hereby acknowledges that he has reviewed and is familiar
with the provisions contained in Section 6.04 of the Merger Agreement as they relate to officers,
directors and other Representatives of the Company.
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Article II.
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations And Warranties Of Holder. Holder hereby represents and warrants
to the Acquiror, Merger Subsidiary and Partnership Merger Subsidiary as follows:
(a) Due Organization, Authorization, etc. Holder has all requisite legal capacity, power and
authority to execute and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the part of Holder. This
Agreement has been duly executed and delivered by or on behalf of Holder and constitutes a legal,
valid and binding obligation of Holder, enforceable against Holder in accordance with its terms.
(b) No Conflicts, Required Filings and Consents.
(i) The execution and delivery of this Agreement by Holder does not, and the performance of
this Agreement by Holder will not, (i) conflict with or violate any judgment, order, decree,
statute or Law applicable to Holder or by which Holder or any of Holder’s assets or properties is
bound or affected or (ii) violate or conflict with any agreement or other instrument to which
Holder is a party or by which any of its assets or properties is bound.
(ii) The execution and delivery of this Agreement by Holder does not, and the performance of
this Agreement by Holder will not, require any consent, approval, order or authorization of, or
registration, declaration or filing with, or permit from, any Governmental Authority.
(iii) Except for this Agreement, there are no voting trusts or other agreements or
understandings, including, without limitation, any proxies, in effect governing the voting of the
Partnership Units.
(c) Title to Partnership Units. Holder is the beneficial owner of the Partnership Units set
forth on the Holder’s signature page hereto and holds sole and full voting rights with respect
thereto other than as set forth in Sections 1.1 and 1.2 hereof and in the Partnership Agreement.
Holder does not beneficially own any other Partnership Units (or any other securities or interests
in the Partnership). No other Person has any voting rights with respect to the Partnership Units.
In addition, the Partnership Units held by Holder are free and clear of any Liens.
(d) Accredited Investor. Holder represents and warrants to the Acquiror that (a) it is an
Accredited Investor (as such term is defined under Rule 501 promulgated under the Securities Act),
(b) it will execute the limited liability company operating agreement of Acquiror in the
form attached as an exhibit to the Merger Agreement and (c) the Acquiror will acquire good and
unencumbered title to the Partnership Units, free and clear of all Liens.
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(e) Reliance on Information. Holder understands and acknowledges that the Acquiror, Merger
Subsidiary and Partnership Merger Subsidiary are entering into the Merger Agreement in reliance
upon the execution and delivery of this Agreement by Holder.
Section 2.2 Representations And Warranties of Acquiror, Merger Subsidiary and Partnership
Merger Subsidiary. Acquiror, Merger Subsidiary and Partnership Merger Subsidiary hereby jointly
and severally represent and warrant to Holder that: (i) each has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions contemplated hereby; (ii)
the execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of each of them; and (iii)
this Agreement has been duly executed and delivered by or on behalf of each of them and constitutes
a legal, valid and binding obligation of each of each of them, enforceable against each of them in
accordance with its terms.
Article III.
MISCELLANEOUS
MISCELLANEOUS
Section 3.1 Expenses. Except as otherwise provided herein, all costs and expenses incurred in
connection with the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
Section 3.2 Notices. Any notice or other communication required or permitted hereunder shall
be in writing (including facsimile transmission) and shall be given,
| (i) | if to the Acquiror to: |
X. X. Xxxxxx Investment Management Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx
Fax: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx
Fax: (000) 000-0000
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
| (ii) | if to Holder to: |
The address and fax number set forth on the Holder’s signature page hereto
with a copy to:
Hunton & Xxxxxxxx LLP
Riverfront Plaza, East Tower
Riverfront Plaza, East Tower
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000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify for the purpose by
notice to the other parties hereto. All notices and other communications hereunder shall be in
writing and shall be deemed duly given upon due receipt if delivered personally, by facsimile, by a
recognized next-day courier service or by registered or certified mail, return receipt requested,
postage prepaid.
Section 3.3 Termination. Notwithstanding any other term or condition hereof to the contrary,
unless terminated earlier upon the written agreement of each of the parties hereto, this Agreement
and the powers of attorney and proxies provided herein shall terminate (the “Expiration Date”) and
be of no further force and effect, automatically and without any required action of the parties
hereto, upon the earlier to occur of (i) the Partnership Merger Effective Time or (ii) such date
and time as the Merger Agreement shall have been validly terminated pursuant to the terms thereof;
provided that no such termination shall relieve any party of liability for a breach hereof prior to
termination. Notwithstanding the foregoing, Article II and Section 3.1 hereof shall survive the
Expiration Date in accordance with its terms.
Section 3.4 No Inconsistent Actions by Holder. Prior to the Expiration Date, Holder shall not
revoke or rescind, or purport to revoke or rescind, the proxies granted hereby.
Section 3.5 Amendment. This Agreement may not be amended, modified or rescinded except by an
instrument in writing signed by each of the parties hereto.
Section 3.6 Governing Law. Except to the extent that Virginia law is mandatorily applicable
to the Partnership Merger, this Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
Section 3.7 No Limitation on Actions of Holder as Director or Officer. Notwithstanding
anything to the contrary in this Agreement, nothing in this Agreement is intended or shall be
construed to require Holder to take or in any way limit any action that Holder may take to
discharge Holder’s fiduciary duties as a director or officer of the Company, if applicable,
including but not limited to the right to vote for or support a Superior Proposal (as defined in
the Merger Agreement), the termination of the Merger Agreement or any other action, in each case in
accordance with the terms of the Merger Agreement.
Section 3.8 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
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good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible
in a mutually acceptable manner in order that the transactions contemplated hereby be consummated
as originally contemplated to the fullest extent possible.
Section 3.9 Entire Agreement; Assignment. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all prior agreements
and undertakings, both written and oral, among the parties, or any of them, with respect to the
subject matter hereof and thereof. This Agreement shall not be assigned by operation of law or
otherwise.
Section 3.10 Parties in Interest. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to
or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
Section 3.11 Specific Performance. Without limiting or waiving any rights or remedies of any
of the parties hereto, the parties hereto agree that irreparable damage would occur in the event
any provisions of this Agreement were not performed by the parties in accordance with the terms
hereof and that, prior to the termination of the Merger Agreement pursuant to Section 9.01 thereof,
each of the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement by any party and to seek specific performance of the obligations of the parties
under this Agreement in any court of the United States or any state having jurisdiction, this being
in addition to any other remedy to which they are entitled at law or in equity.
Section 3.12 Waiver of Jury Trial. Each of the parties hereto hereby waives to the fullest
extent permitted by applicable Law any right it may have to a trial by jury with respect to any
litigation directly or indirectly arising out of, under or in connection with this Agreement or the
transactions contemplated hereby. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise, that such other party
would not, in the event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this Agreement and the
transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and
certifications in this Section 3.12.
Section 3.13 Headings. The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 3.14 Mutual Drafting. Each party hereto has participated in the drafting of this
Agreement, which each party acknowledges is the result of negotiations among the parties.
Section 3.15 Counterparts. For the convenience of the parties, this Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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[Signatures contained on following pages]
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IN WITNESS WHEREOF, Acquiror, Merger Subsidiary and Partnership Merger Subsidiary have caused
this Agreement to be executed by their respective officers thereunto duly authorized and Holder has
caused this Agreement to be duly executed by an authorized signatory, all as of the date first
written above.
| SSPF/CET OPERATING COMPANY LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SSPF/CET OP HOLDING COMPANY LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SSPF/CET OP HOLDING COMPANY SUBSIDIARY L.P. | ||||||
| By: | SSPF/CET OP Holding Company LLC, | |||||
| its general partner | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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| HOLDER | ||||||
| By: | ||||||
| Name: Xxxxxx X. Xxxx, Xx. | ||||||
Date: , 2006 |
||||||
| Print Name of Holder: | ||||||
| Address of Holder: | ||||||
| fax: | ||||||
| Partnership Units beneficially owned: | ||||||
| Partnership LP Units (excluding LTIP Units): | ||||||
| LTIP Units | ||||||
| Number of Partnership Units (including LTIP | ||||||
| Units) to be exchanged for Partnership Unit | ||||||
| Common Merger Consideration: | ||||||
[Holder Signature Page]
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