Exhibit 10.4
STOCKHOLDERS
AGREEMENT
Dated as of November 2,
2007
By and Among
GRAMERCY CAPITAL
CORP.,
SSF
III GEMINI, LP
and
SL
GREEN OPERATING PARTNERSHIP, L.P.
STOCKHOLDERS AGREEMENT
STOCKHOLDERS
AGREEMENT (this
“ Agreement ”), dated as of November 2, 2007, by
and among Gramercy Capital Corp., a Maryland corporation (the
“ Company ”), SSF III Gemini, LP, a Delaware
limited partnership (“ SSF ”) and SL Green
Operating Partnership, L.P., a Delaware limited partnership
(“ SLG ”). The parties hereto and any
other Person that shall hereafter acquire shares of the Common
Stock (as hereinafter defined) pursuant to the provisions of
and subject to this Agreement are referred to herein individually
as a “ Stockholder ” and collectively as “
Stockholders .”
WITNESSETH:
WHEREAS , the Company has entered into a
subscription agreement, dated as of November 2, 2007 (the “
Subscription Agreement ”), with SSF, pursuant to
which, inter alia , the Company agreed to issue and sell,
and SSF agreed to purchase, for a purchase price of $26.25 per
share (the “ SSF Purchase Price ”),
3,809,524 shares of Common Stock, for an aggregate purchase
price, of $100,000,005.
WHEREAS , concurrently with the execution of
this Agreement, the Company and SSF will enter into a registration
rights agreement, dated as of the date hereof (the “
Registration Rights Agreement ”), to provide certain
registration rights with respect to the Common Stock purchased by
SSF pursuant to the Subscription Agreement.
WHEREAS , as of the date hereof, SLG is the
record and beneficial owner of 7,624,583 shares of Common
Stock.
NOW , THEREFORE , the parties hereto
hereby agree as follows:
1.
Definitions As used in this Agreement, the following
terms shall have the meanings ascribed to them below:
1.1.
1934 Act . The term “ 1934 Act ”
shall have the meaning set forth in Section 6.18 hereof.
1.2.
Affiliate . The term “ Affiliate ”
shall mean, when used with reference to a specified Person,
(i) any Person that directly or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the specified Person; (ii) any Person who, from
time to time, is a member of the immediate family of a specified
Person; (iii) any Person who, from time to time, is an officer
or director or manager of a specified Person; or (iv) any Person
who, directly or indirectly, is the beneficial owner of 50% or more
of any class of equity securities or other ownership interests of
the specified Person, or of which the specified Person is directly
or indirectly the owner of 50% or more of any class of equity
securities or other ownership interests. For the avoidance of
doubt, the Company shall not be deemed an Affiliate of SLG for
purposes of this Agreement.
1.3.
Agreement . The term “ Agreement ”
shall have the meaning set forth in the introductory paragraph
hereof.
1.4.
Board of Directors or Board . The term “
Board of Directors ” or “ Board ”
shall mean the Board of Directors of the Company in office at the
applicable time as elected in accordance with the provisions of
Section 2 of this Agreement.
1.5.
Bona Fide Offer . The term “ Bona Fide Offer
” shall mean any bona fide arms’ length
offer in writing from a Third Party or Third Parties who are not
Affiliates of SLG to purchase Common Stock from SLG or a Covered
Transferee of SLG.
1.6.
Business Day . The term “ Business Day
” shall mean each day other than a Saturday, a Sunday or any
other day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to be
closed. A Business Day shall be deemed to commence at
9:00a.m. (New York City time) and end at 5:00p.m. (New York City
time).
1.7.
Closing Date . The term “ Closing Date
” shall mean November 7, 2007.
1.8.
Common Stock . The term “ Common Stock
” shall mean the common stock, par value $.001 per share, of
the Company.
1.9.
Company . The term “ Company ”
shall have the meaning set forth in the introductory paragraph
hereof.
1.10.
Confidential Information . The term “
Confidential Information ” shall have the meaning set
forth in Section 6.18 hereof.
1.11.
Control . The term “ Control ”
(including “ Controlling ,” “
Controlled by ” and “ under common Control
with ”) shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of a Person through the ownership of Voting
Power, by contract or otherwise.
1.12.
Covered Transferee . The term “ Covered
Transferee ” shall mean (A) with respect to SSF, any
Permitted Transferee that is a fund or client managed by a
registered investment advisor affiliated with Morgan Stanley Real
Estate Investing; and (B) with respect to SLG, shall mean SL Green
Realty Corp. or any direct or indirect subsidiary which is
Controlled by SL Green Realty Corp.
1.13.
Duly Endorsed . The term “ Duly Endorsed
” shall mean (i) duly endorsed by the Person or Persons
in whose name a stock certificate or certificate representing a
debt security is registered or (ii) accompanied by a duly
executed stock or security assignment separate from the
certificate, in each case with the signature(s) thereon
guaranteed by a commercial bank or trust company or a member of a
national securities exchange or of the National Association of
Securities Dealers, Inc.
1.14.
Notice Period . The term “ Notice Period
” shall have the meaning set forth in Section
3.1(c) hereof.
1.15.
Observer . The term “ Observer ”
shall have the meaning set forth in Section 2.1
hereof.
1.16.
Permitted Transferee . The term “ Permitted
Transferee ” shall mean with respect to SSF, (i) the
Company, or (ii) any Affiliate of SSF who, upon such Transfer,
becomes a party to this Agreement.
1.17.
Person . The term “ Person ” shall
mean an individual, partnership corporation, limited liability
company, joint venture, association, trust, unincorporated
organization or other governmental or legal entity.
1.18.
Pledgee . The term “ Pledgee ”
shall mean any lender who has made a loan to SSF or any Permitted
Transferee or any Affiliate thereof and to whom either SSF, any
Permitted Transferee or Affiliate thereof has pledged their direct
or indirect interests in any Common Stock as security for such
loan.
1.19.
Registration Rights Agreement . The term “
Registration Rights Agreement ” shall have the meaning
set forth in the Recitals.
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1.20.
Securities Act . The term “ Securities
Act ” shall mean the Securities Act of 1933, as amended,
or any federal statute then in effect which has replaced such
statute, and a reference to a particular section thereof shall be
deemed to include reference to the comparable section, if any, of
any such replacement federal statute.
1.21.
SLG . The term “ SLG ” shall have
the meaning set forth in the introductory paragraph
hereof.
1.22.
SLG Shares . The term “ SLG Shares
” shall mean the shares of Common Stock owned by SL Green
Realty Corp. and/or any of its direct or indirect subsidiaries that
are Controlled by SL Green Realty Corp. from time to
time.
1.23.
SSF . The term “ SSF ” shall have
the meaning set forth in the introductory paragraph
hereof.
1.24.
SSF Purchase Price . The term “SSF Purchase
Price” shall have the meaning set forth in the
Recitals.
1.25.
Stockholder or Stockholders . The term “
Stockholder ” or “ Stockholders ”
shall have the meaning set forth in the introductory paragraph
hereof.
1.26.
Subscription Agreement . The term “
Subscription Agreement ” shall have the meaning set
forth in the Recitals.
1.27.
Tag-Along Buyer . The term “ Tag-Along
Buyer ” shall have the meaning set forth in Section
3.1(a) hereof.
1.28.
Tag-Along Notice . The term “ Tag-Along
Notice ” shall have the meaning set forth in Section
3.1(b) hereof.
1.29.
Tag-Along Offeree . The term “ Tag-Along
Offeree ” shall have the meaning set forth in Section
3.1(a) hereof.
1.30.
Tag-Along Stock . The term “ Tag-Along
Stock ” shall have the meaning set forth in Section
3.1(a) hereof.
1.31.
Third Party . The term “ Third Party
” shall mean (a) in the case of SSF, any Person other than
(i) the Company, (ii) SSF, and (iii) any of their
respective Affiliates, and (b) in the case of SLG, any Person other
than (i) the Company, (ii) SLG, (iii) any of their
respective Affiliates and (iv) any underwriter in connection with
an underwritten offering of SLG Shares.
1.32.
Transfer . The term “ Transfer ”
shall mean any direct or indirect sale, assignment, mortgage,
transfer, pledge, gift, hypothecation or other disposition or
transfer of, or any act creating a trust (voting or
otherwise) with respect to, stock of the Company (other than
any bona fide pledge or hypothecation to a financial
institution(s), in connection with any loan from such financial
institution(s)).
1.33.
Voting Power . “ Voting Power ”
shall mean voting securities or other voting interests ordinarily
(and apart from rights accruing under special
circumstances) having the right to vote in the election of
board members or Persons performing substantially equivalent tasks
and responsibilities with respect to a particular
entity.
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2.
Board of Directors Observation Rights .
2.1.
Until the earlier of (a) the 18 month anniversary of the Closing
Date and (b) such time as SSF and its Covered Transferees no longer
own a number of shares of Common Stock equal to at least 75% of the
number of shares of Common Stock acquired by SSF as of the Closing
Date (as adjusted for stock splits, reverse stock splits and
similar transactions), SSF shall have the right to have one
(1) representative who shall be an employee of Morgan Stanley
or a subsidiary thereof who is reasonably acceptable to the
Company, present (whether in person or by telephone) at all
regularly scheduled quarterly meetings of the Board of Directors
and at any meeting of the Board of Directors to consider a merger,
bankruptcy or liquidation of the Company, or an acquisition by the
Company of a publicly-traded company (the “ Observer
”). The initial Observer shall be Hugh Macdonnell or
Dipak Patel, who are hereby deemed acceptable to the
Company. While such Observer designated pursuant to this
Section 2.1 shall be entitled to participate in discussions, pose
questions to, and consult with, and make proposals and furnish
advice to, the Board of Directors, such Observer shall not be
entitled to vote at any such meetings. The Company shall
deliver to the Observer, concurrently with the delivery to members
of the Board of Directors, notices of such Board meetings, written
information related thereto, written information distributed to the
members of the Board in connection with such meetings and all other
written information provided to members of the Board of Directors
in connection with such meetings in the same manner and at the same
time as distributed to the members of the Board of Directors.
Failure to deliver notice to an Observer in connection with an
Observer’s right to attend any regularly scheduled quarterly
or other meeting of the Board of Directors shall not, of itself,
impair the validity of any action taken by the Board or such
committee at such meeting.
2.2.
At each regularly quarterly scheduled meeting of the Board of
Directors, the chairman of each committee of the Board shall make a
presentation regarding such committee’s activities, since the
previous quarterly scheduled meeting of the Board, which
presentation shall include a description of all material issues
discussed, and all actions taken, by such committee. Such
presentation shall be deemed satisfied by delivery of minutes of
all such meetings.
3.
Tag-Along Rights .
3.1.
Tag-Along Rights Generally .
(a)
If at any time SLG and its Covered Transferees own an equal or
lesser number of shares of Common Stock, in the aggregate than
owned at such time by SSF and its Permitted Transferees, in the
aggregate, and SLG and/or any Covered Transferee of SLG elects to
sell all or a portion of the SLG Shares to a Third Party or the
Company (a “ Tag-Along Buyer ”), then SLG shall
first offer, in accordance with the provisions of this Section 3,
to SSF and to each of its Permitted Transferees (for the purpose of
this Section 3 only, each, a “ Tag-Along Offeree
”) to include, at the option of the Tag-Along Offerees,
in a sale or other disposition to the Tag-Along Buyer, such number
of shares of Common Stock (the “ Tag-Along Stock
”) as shall be determined in accordance with this
Section 3.
(b)
Upon the receipt by SLG and/or a Covered Transferee of a Bona Fide
Offer or offers to purchase or otherwise acquire (or if SLG and/or
a Covered Transferee has otherwise agreed to Transfer) all or
any portion of the SLG Shares from a Tag-Along Buyer which SLG
and/or a Covered Transferee desires to accept, SLG and/or such
Covered Transferee shall cause all of the material terms and
conditions of the Tag-Along Buyer’s offer to be reduced to
writing and shall, in a reasonable amount of time upon receipt
thereof, provide a copy of such written notice of such Tag-Along
Buyer’s offer (the “ Tag-Along Notice
”) to each of the Tag-Along Offerees in the manner set
forth in Section 6.5 hereof. The Tag-Along Notice must
contain an offer by the Tag-Along Buyer to purchase or otherwise
acquire shares of Tag-Along Stock from the Tag-Along Offerees
according to the terms and conditions of this
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Section 3 and, subject to Section 3.1(g)
hereof, upon the same terms and conditions as the terms and
conditions contained in the Tag-Along Buyer’s offer and shall
be accompanied by a true, correct and complete copy of the
Tag-Along Buyer’s offer. The Tag-Along Notice will
include a good faith estimate of the SLG expenses described in
Section 3.1(d).
(c)
At any time within five (5) Business Days after its receipt of
the Tag-Along Notice (the “ Notice Period ”), a
Tag-Along Offeree may irrevocably accept the Tag-Along Buyer offer
included in the Tag-Along Notice for up to such number of shares of
Tag-Along Stock as is determined in accordance with Section 3.2 by
furnishing written notice of such acceptance to SLG and/or the
applicable Covered Transferee and such Tag-Along Buyer. In
the event that stock certificates have been issued in respect of
the Tag-Along Stock for which such offer is accepted, such written
notice of acceptance must be accompanied by the certificate or
certificates representing the shares of Tag-Along Stock (which
shall be free and clear of liens, other than those arising pursuant
to the terms of this Agreement), Duly Endorsed, to be sold or
otherwise disposed of pursuant to such offer by such Tag-Along
Offeree, together with a limited power-of-attorney authorizing SLG
to sell or otherwise dispose of such shares of stock pursuant to
the terms and conditions of such Tag-Along Buyer’s offer and
the terms and conditions of this Section 3. Any change in the
material terms (including price) of the Tag-Along Buyer’s
offer shall trigger a new Notice Period.
(d)
SLG and/or its Covered Transferees shall not transfer any shares of
Common Stock to any Tag-Along Buyer if such Tag-Along
Buyer(s) decline(s) to allow the participation of the
Tag-Along Offerees. SLG, the applicable Covered Transferee
and each Tag-Along Offeree transferring shares of Common Stock
pursuant to this Section 3 shall pay its pro rata share
(based on the number of shares of Common Stock to be sold) of
the expenses incurred by SLG and the Tag-Along Offeree(s) in
connection with such Transfer and shall be obligated to join on a
pro rata but several basis in any indemnification or other
obligations that SLG and/or such Covered Transferee agrees to
provide in connection with such transfer (other than any such
obligations that relate specifically to SLG, such Covered
Transferee or a particular Tag-Along Offeree such as
indemnification with respect to representations and warranties
given by SLG, such Covered Transferee or a particular Tag-Along
Offeree regarding SLG, such Covered Transferee or such Tag-Along
Offeree’s title to and owne
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