Exhibit 99.1
EXECUTION COPY
STANDSTILL WAIVER AND VOTING
AND LOCK-UP AGREEMENT
THIS STANDSTILL WAIVER AND VOTING AND LOCK-UP
AGREEMENT (this “ Agreement ”) is made and
entered into this 20 th day
of August, 2007 by and between Archstone-Smith Trust, a Maryland
real estate investment trust (the “ Company ”),
and River Holding, LP (the “ Investor ”).
WHEREAS, on May 9,
2007, Tishman Speyer Development Corporation and Lehman Brothers
Holdings Inc. each of whom are affiliates of Investor, entered into
confidentiality agreements with the Company (the “
Confidentiality Agreement ”) that, among other things,
prohibit them and their “Standstill Affiliates” (as
defined in the Confidentiality Agreement), including the Investor,
from acquiring any securities of the Company;
WHEREAS, on May
28, 2007, the Company, Archstone-Smith Operating Trust, a Maryland
real estate investment trust (the “ Operating Trust
”), River Holding, LP, a Delaware limited partnership, River
Acquisition (MD), LP, a Maryland limited partnership, and River
Trust Acquisition (MD), LLC, a Maryland limited liability company,
entered into an Agreement and Plan of Merger (as amended, the
“ Merger Agreement ”);
WHEREAS,
capitalized terms used herein that are not otherwise defined herein
shall have the meanings ascribed to them in the Merger
Agreement;
WHEREAS, Investor
wishes to purchase outstanding common shares of the Company and/or
units of the Operating Trust prior to the effective time of the
Mergers and the Company is willing to waive the provisions of the
Confidentiality Agreement to the extent necessary to permit
Investor to purchase common shares of the Company and/or units of
the Operating Trust, on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants and agreements
set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1.
Waiver of Certain Standstill Provisions .
(a)
Subject to compliance by Investor with the provisions of this
Agreement, the Company hereby waives any provision of the
Confidentiality Agreement and any other agreements to which the
Company or its affiliates is a party (other than any such
provisions contained in the declaration of trust of the Company or
the declaration of trust of the Operating Trust), which could
prohibit Investor or its Affiliates from purchasing any securities
of the Company or the Operating Trust; provided, however, such
waiver is granted solely with respect to purchases of common shares
or units of the Company or the Operating Trust made in compliance
with this Agreement. The waiver granted hereby shall apply
only with respect to purchases of common shares or units made on or
before October 5, 2007 by Investor or any Affiliate of Investor or
of any owner of Investor that executes an agreement agreeing to be
bound by the covenants contained in this Agreement applicable to
Investor.
(b)
Investor shall not purchase any securities of the Company or the
Operating Trust that would cause Investor or its Affiliates to be
required to make any filing
under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
or that would be reasonably likely to delay the completion of the
review of the application of the Buyer Parties under the EU Merger
Regulation.
(c)
Any purchases by Investor of securities of the Company or the
Operating Trust shall be subject to the ownership limits set forth
in the Declaration of Trust of the Company and Company is not
hereby waiving, and is not hereby agreeing to waive, any such
ownership limits.
(d)
Investor shall not purchase any securities of the Company or the
Operating Trust at any time when it is in possession of material
nonpublic information regarding the Company and its purchases shall
comply with all applicable laws and regulations, including
securities laws and regulations.
(e)
Investor shall promptly notify the Company of the number of any
securities of the Company or the Operating Trust acquired by
Investor after the date hereof.
2.
Agreement to Vote .
(a)
From and after the date hereof until the earlier of (a) the Company
Merger Effective Time and (b) any time of termination of the Merger
Agreement in accordance with its terms (such earlier time, the
“ Expiration Time ”), at any meeting (whether
annual or special and each adjourned or postponed meeting) of the
Company’s shareholders at which the Owned Shares (as defined
below) are entitled to be voted, however called, or in connection
with any written consent of the Company’s shareholders,
Investor shall (i) appear at such meeting or otherwise cause its
Owned Shares to be counted as present thereat for purposes of
calculating a quorum and (ii) vote or cause to be voted (including
by written consent, if applicable) all of the common shares of the
Company beneficially owned by Investor as of the relevant time (the
“ Owned Shares ”) for (A) approval and
adoption of the Merger Agreement and the transactions contemplated
by the Merger Agreement and (B) approval of any postponement
or adjournment of any such meeting proposed by or on behalf of the
Company for the purpose of soliciting additional proxies if there
are not sufficient votes to approve and adopt the Merger
Agreement.
(b)
In the event that the Company Board or a Special Committee
approves, and authorizes the Company to enter into, (i) a
definitive agreement providing for the implementation of a Superior
Proposal prior to the time when the Company Shareholder
Approval is obtained and the Merger Agreement is properly
terminated pursuant to Section 9.01(h) thereof, or (ii) a
definitive agreement relating to any other Acquisition Proposal
properly entered into without breaching the Merger Agreement, at
any meeting (whether annual or special and each adjourned or
postponed meeting) of the Company’s shareholders at which the
Owned Securities (as defined below) are entitled to be voted,
however called, or in connection with any written consent of the
Company’s shareholders, Investor shall (A) appear at such
meeting or otherwise cause its Owned Shares and units of the
Operating Trust beneficially owned by Investor as of the relevant
time (together with the Owned Shares the “ Owned
Securities ”) to be counted as present thereat for
purposes of calculating a quorum and (B) vote or cause to be voted
(including by written consent, if applicable) all of its Owned
Securities for approval and adoption of the Superior Proposal or
such other Acquisition Proposal. The Company
2
acknowledges that
Investor may have transferred some or all of the Owned Securities
in accordance with Section 3 after the Expiration Time and
prior to any such meeting.
(c)
Upon the request of the Company and subject to applicable law,
Investor shall irrevocably appoint the Company or its designee as
Investor’s proxy, to vote (or cause to be voted) its Owned
Securities in favor of approval of the Merger Agreement (and any
postponement or adjournment described in paragraph (a) above), the
Merger and the other transactions contemplated by the Merger
Agreement or, in the circumstances described in
Section 2(b) , a Superior Proposal or other Acquisition
Proposal, as applicable. Such proxy shall be irrevocable and
coupled with an interest and shall be granted in consideration of
the Company granting the waiver of the standstill provisions
pursuant hereto. In the event that Investor fails for any
reason to vote its Owned Securities in accordance with the
requirements of Section 2(a) or (b) , then the
Company or its designee shall have the right to vote
Investor’s Owned Securities in accordance with Section
2(a) or (b) , as applicable. Subject to applicable
law, the vote of the Company or its designee shall control in any
conflict between the vote by the Company or its designee of
Investor’s Owned Securities and a vote by Investor of its
Owned Securities. Notwithstanding the foregoing, the proxy
granted by Investor shall be automatically revoked upon termination
of this Agreement in accordance with Section 6
.
(d)
The provisions of this Section 2 are irrevocable and
unconditional.
3.
Restrictions on Transfers .
(a)
From and after the date hereof until the Expiration Time, Investor
shall not, directly or indirectly, sell, assign, give, mortgage,
pledge, hypothecate, issue, bequeath or in any manner encumber or
dispose of, or permit to be sold, assigned, encumbered, attached or
otherwise disposed of in any manner, whether voluntarily,
involuntarily or by operation of law, with or without consideration
(collectively, “ Transfer ”), Owned Securities
to a third party; provided that Investor shall be permitted
to Transfer Owned Securities (A) to any Person if
such
