EXHIBIT 99.2
FORM OF EQUITY ONE, INC. VOTING AGREEMENT
VOTING AGREEMENT dated October 28, 2002, by and among IRT Property
Company, a Georgia corporation (the "IRT"), and certain stockholders (each, a
"Stockholder" and, collectively, the "Stockholders") of Equity One, Inc., a
Maryland corporation (the "Company").
WHEREAS, contemporaneously herewith, the Company and IRT are entering
into an Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement;" capitalized terms being used but not otherwise defined herein shall
have the meanings given thereto in the Merger Agreement), that provides, among
other things, that IRT will merge with and into the Company (the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares of Company Common Stock and/or shares
of IRT Common Stock, set forth on the signature page hereof beneath such
Stockholder's name (with respect to each Stockholder, together with any shares
of Company Common Stock or IRT Common Stock acquired after the date hereof,
whether upon the exercise of warrants, options, conversion of convertible
securities or otherwise, such Stockholder's "Shares"); and
WHEREAS, as a condition to the willingness of IRT to enter into the
Merger Agreement, IRT has requested that the Stockholders agree, and in order
to induce IRT to enter into the Merger Agreement, the Stockholders have agreed,
to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
ARTICLE 1.
VOTING AGREEMENT
Section 1.1 Voting Agreement. Each Stockholder, severally and
not jointly, hereby agrees that, from and after the date hereof and until this
Agreement shall have been terminated in accordance with Article 4 hereof, at
any meeting of the stockholders of the Company or IRT, however called, and in
any action by consent of the stockholders of the Company or IRT upon which the
Merger and related proposals are to be considered, adopted or approved, such
Stockholder will vote (or cause to be voted) such Stockholder's Shares: (a) in
favor of the approval and adoption of the Company Stockholder Approvals or the
IRT Shareholder Approval, as applicable; (b) against any action, proposal,
agreement, transaction or matter that, if taken, executed or consummated by the
Company, would result in a breach of any covenant, obligation, agreement,
representation or warranty of the Company contained in the Merger Agreement or
of the Stockholders contained in this Agreement; and (c) against any action,
proposal, agreement or transaction, including, but not limited to, any
Acquisition Proposal, that, if taken, executed or consummated by the Company,
could result in any of the conditions to IRT's obligations under the Merger
Agreement not being fulfilled or that is intended, or could reasonably be
expected, to impede, interfere or be inconsistent with, delay, postpone,
discourage or adversely affect the consummation of the Merger or the
transactions contemplated by the Merger Agreement or this
Agreement. Such Stockholder shall not enter into any agreement, understanding
or arrangement with any person or entity to vote such Shares or give
instructions in any manner inconsistent with this Section 1.1. Each Stockholder
acknowledges receipt and review of a copy of the Merger Agreement.
Section 1.2 Irrevocable Proxy; Appointment of Proxy. If any
Stockholder fails to comply with the provisions of Section 1.1 (as determined
by IRT in its sole discretion), such Stockholder hereby agrees that such
failure shall result, without any further action by such Stockholder, in the
irrevocable appointment of IRT, and any other individual who shall be hereafter
designated by IRT, as such Stockholder's attorney and proxy, with full power of
substitution, to vote and otherwise act (by written consent or otherwise) with
respect to such Shares at any meeting of the stockholders of the Company or
IRT, as applicable (whether annual or special and whether or not an adjourned
or postponed meeting) or consent in lieu of any such meeting or otherwise, on
the matters and in the manner specified in Section 1.1. THIS PROXY AND POWER OF
ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO
WHOM A STOCKHOLDER MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS AGREEMENT.
Each Stockholder hereby revokes all other proxies and powers of attorney with
respect to such Stockholder's Shares that may have heretofore been appointed or
granted, and no subsequent proxy or power of attorney shall be given or written
consent executed (and if given or executed, shall not be effective) by any
Stockholder with respect thereto. All authority herein conferred or agreed to
be conferred shall survive the death or incapacity of any Stockholder and any
obligation of the Stockholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of such Stockholder.
Section 1.3 Stock Election. Each Stockholder that beneficially owns
shares of IRT Common Stock hereby agrees to make a Stock Election in accordance
with Section 2.2 of the Merger Agreement and submit a Form of Election to that
effect with respect to all shares of IRT Common Stock beneficially owned by
such Stockholder at the Effective Time.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and
warrants to IRT as follows:
Section 2.1 Authority. Such Stockholder has all necessary power,
authority and capacity to execute and deliver this Agreement, to perform such
Stockholder's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by such
Stockholder of this Agreement and the consummation by such Stockholder of the
transactions contemplated hereby have been duly and validly authorized by all
requisite corporate, partnership, limited liability company or other action,
and no other actions or proceedings on the part of such Stockholder are
necessary to authorize the execution and delivery by such Stockholder of this
Agreement, and the consummation by such Stockholder of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
such Stockholder and constitutes a legal, valid and binding obligation of such
Stockholder,
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enforceable against such Stockholder in accordance with its terms, except that
(i) such enforcement may be subject to applicable bankruptcy, insolvency or
other laws, now or hereafter in effect, affecting creditors' rights generally,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
Section 2.2 No Conflict. Except as set forth on Schedule A, the
execution and delivery of this Agreement by such Stockholder do not, and the
performance of this Agreement by such Stockholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any third party or any governmental authority, domestic or foreign, except
for applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended.
Section 2.3 Brokers. No broker, investment banker, financial
adviser or other Person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of the Stockholder.
Section 2.4 Ownership of Shares. Except as set forth on Schedule
A, such Stockholder is the record, legal and beneficial owner of that number of
Shares set forth on the signature page hereto opposite such Stockholder's name,
free and clear of any lien and any other limitation or restriction (including
any restriction on the right to vote or otherwise dispose of the Shares).
Except as set forth on Schedule A, such Stockholder has sole voting power and
sole power of disposition with respect to all of the Shares owned by such
Stockholder and none of the Shares of such Stockholder is subject to any voting
trust or other agreement or arrangement with respect to the voting of such
Shares (including without limitation any prenuptial agreement, divorce
settlement or similar agreement). None of the Shares of any Stockholder that is
an individual constitute community property.
ARTICLE 3.
COVENANTS OF THE STOCKHOLDERS
Section 3.1 No Disposition of Shares. Each Stockholder,
severally and not jointly, hereby agrees that, except as contemplated by the
Merger Agreement and this Agreement, such Stockholder shall not (i) sell,
transfer, tender, assign, contribute to the capital of any entity, give or
otherwise dispose of, grant a proxy or power of attorney with respect to,
deposit into any voting trust, or create or permit to exist any direct
limitation on such Stockholder's voting rights with respect to, any of such
Stockholder's Shares (or agree or consent to, or offer to do, or grant any
option or other right or interest with respect to, any of the foregoing) prior
to the record date for the Company Stockholders' Meeting or IRT Shareholders'
Meeting, as the case may be, unless the transferee or assignee of such voting
rights grants an irrevocable proxy to IRT as contemplated by Section 1.2, (ii)
grant any proxies or powers of attorney, deposit any Shares into a voting trust
or enter into a voting agreement with respect to any Shares, or any interest in
any of the foregoing, except this Agreement and proxies executed in favor of
the Merger and the transactions and proposals contemplated by the Merger
Agreement; (iii) take any action that would make any representation or warranty
of such Stockholder herein untrue or incorrect in any material respect or have
the effect of preventing or disabling such Stockholder from performing
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his, her or its obligations, or (iv) directly or indirectly, initiate, solicit
or encourage any person to take actions that could reasonably be expected to
lead to the occurrence of any of the foregoing.
Section 3.2 Appraisal or Dissenters' Rights. Each Stockholder
hereby irrevocably waives any rights of appraisal or rights to dissent from the
Merger that the Stockholder may have.
Section 3.3 No Solicitation of Transactions. Each Stockholder,
severally and not jointly, agrees that between (x) the date of this Agreement
and (y) the earlier of the Effective Time of the Merger or the date of
termination of the Merger Agreement, such Stockholder will not and will not
permit any investment banker, counsel or representative of the Stockholder, on
behalf of the Stockholder, to, directly or indirectly, (a) solicit, initiate,
consider, encourage or accept any other proposals or offers from any person
constituting an Acquisition Proposal, or (b) participate in any discussions,
conversations, negotiations and other communications regarding, or furnish to
any other person any information with respect to, or otherwise cooperate in any
way, assist or participate in, facilitate or encourage any effort or attempt by
any other person to make an Acquisition Proposal, except in each case to the
extent that the Stockholder is otherwise permitted by the Merger Agreement.
Each Stockholder immediately shall cease and cause to be terminated all
existing discussions, conversations, negotiations and other communications with
any persons conducted heretofore with respect to any of the foregoing. Each
Stockholder shall notify IRT promptly if any such proposal or offer, or any
inquiry or other contact with any person with respect thereto, is made and
shall, in any such notice to IRT, indicate in reasonable detail the identity of
the person making such proposal, offer, inquiry or contact and the terms and
conditions of such proposal, offer, inquiry or other contact, except with
respect to proposals, offers, inquiries or other contacts by or with the
interested parties.
Section 3.4 Certain Provisions. Such Stockholder expressly
assumes the performance of any and all obligations set forth in the Section
4.1(f)(vi) of the Merger Agreement to the extent that such provision is
applicable to such Stockholder.
ARTICLE 4.
TERMINATION
Section 4.1 Automatic Termination. This Agreement shall
terminate, and no party shall have any rights or obligations hereunder and this
Agreement shall (other than the confidentiality provisions of Section 5.4)
become null and void and have no further effect upon the earliest of: (a) the
Effective Time of the Merger; (b) the date of termination of the Merger
Agreement in accordance with its terms; and (c) by the written mutual consent
of the parties hereto.
Section 4.2 Termination at the Election of the Stockholders. (a)
On the Termination Date, each Stockholder shall also have the right to
terminate this Agreement, and upon such termination such Stockholder shall not
have, nor shall IRT or any other party have in respect of such Stockholder, any
rights or obligations hereunder (other than the confidentiality provisions of
Section 5.4), if:
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(i) the 30-Day Average Trading Price of Company
Common Stock is less than $12.06, or
(ii) the 30-Day Average Trading Price of IRT
Common Stock is less than $10.935, or
(iii) the 3-Day Average Trading Price of Company
Common Stock is less than $11.00, or
(iv) the 3-Day Average Trading Price of IRT
Common Stock is less than $9.935.
(b) For purposes of this Section 4.2,
(i) the "30-Day Average Trading Price" shall
mean the weighted average trading price per share of Company Common
Stock or IRT Common Stock, as applicable, as quoted on the New York
Stock Exchange for all transactions during the thirty (30) trading
days ending on (and inclusive of) the Termination Date;
(ii) the "3-Day Average Trading Price" shall
mean the weighted average trading price per share of Company Common
Stock or IRT Common Stock, as applicable, as quoted on the New York
Stock Exchange for all transactions during the three (3) trading days
ending on (and inclusive of) the Termination Date; and
(iii) the "Termination Date" shall mean the
fourth business day immediately preceding the scheduled date of the
IRT Shareholders' Meeting.
(c) If any Stockholder shall elect to terminate this
Agreement with respect to such Stockholder pursuant to this Section 4.2, that
Stockholder shall provide written notice thereof to IRT not later than 9:00
a.m., Eastern time, on the day following the Termination Date.
Nothing in this Article 4 shall relieve any party of liability for any
breach of this Agreement.
ARTICLE 5. MISCELLANEOUS
Section 5.1 Stop Transfer Orders and Legends. Each Stockholder
agrees and understands that in order to enforce the transfer restrictions
contained in this Agreement, each of IRT and the Company, as applicable, (a)
shall direct their respective transfer agents and registrars to enter stop
transfer orders and to not register or cause any third party to register the
transfer of any certificate representing any of the Stockholders' Shares,
unless the transfer is made in compliance with this Agreement, and (b) may
require, if necessary to enforce this Agreement, all certificates representing
any of the Stockholders' Shares to be inscribed with an appropriate legend that
reflects this Agreement and the covenants contained herein.
Section 5.2 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
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and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 5.3 Further Assurances. Each Stockholder shall, upon the
request of IRT, execute and deliver all such further documents and instruments
and take all such further action as may be necessary in order to consummate the
transactions contemplated hereby.
Section 5.4 Confidentiality. Each Stockholder recognizes and
acknowledges that he, she or it will have access to certain confidential
information of the Company, IRT or their respective affiliates (collectively,
the "Subject Parties"), as the case may be, pursuant to the Merger Agreement or
the related agreements, documents and transactions. This information, including
the existence and nature of the strategic direction and discussions of the
Subject Parties, is confidential and includes nonpublic information relating to
the Subject Parties. The Securities and Exchange Commission's Regulation FD
allows the Subject Parties to provide this confidential information to the
Stockholder only upon receipt of the Stockholder's agreement to maintain it
strictly confidential. So long as such information remains confidential and
nonpublic, the Stockholder hereby agrees not to use or permit any others to use
such information for any purpose not expressly permitted herein. The
Stockholder further agrees that so long as such information remains
confidential and nonpublic, he, she or it shall not communicate or cause any
other person(s) to communicate such information to anyone else or to trade in
any of the Subject Parties' securities or any derivatives thereof in reliance
upon such confidential and nonpublic information or to take any action to
affect the trading price of any of the Subject Parties' securities. The parties
to this Agreement hereby acknowledge and agree that any use of this information
for purposes of buying or selling the Subject Parties' securities or any
derivatives thereof prior to any public disclosure thereof would violate
federal and state securities laws restricting the use or disclosure of inside
information.
Section 5.5 Entire Agreement. This Agreement, together with
Section 4.1(f)(vi) of the Merger Agreement, constitutes the entire agreement
among the parties with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, both oral and written,
among the parties hereto with respect to the subject matter hereof.
Section 5.6 Amendment. This Agreement may not be amended except
by an instrument in writing signed by all the parties hereto. Any party to this
Agreement may (a) extend the time for the performance of any of the obligations
of the other party(s) owing to such extending party, (b) waive any inaccuracies
in the representations and warranties of the other party(s) for the benefit of
such waiving party contained herein or in any document delivered by the other
party(s) pursuant hereto, or (c) waive compliance with any of the agreements or
conditions of the other party(s) contained herein. Any such extension or waiver
shall be valid only if set forth in an instrument in writing signed by the
party to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of the
same term or condition, or a waiver of any other term or condition, of this
Agreement. The failure of any party to assert any of its rights hereunder shall
not constitute a waiver of any of such rights.
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Section 5.7 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, applicable
to contracts executed and performed entirely in such state and without regard
to the conflicts of law principles thereof jurisdiction, except to the extent
that the Maryland General Corporation Law or the Georgia Business Corporation
Code apply to the proxies granted hereby or the Shares of IRT Common Stock or
Company Common Stock, respectively.
Section 5.8 Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed 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 in federal court for
the Southern District of New York this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the parties
hereto (a) consents to submit itself (without making such submission exclusive)
to the personal jurisdiction of such federal court in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement and (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from such court.
Section 5.9 Waiver of Jury Trials. THE PARTIES HERETO
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE DOCUMENTS, AGREEMENTS OR TRANSACTIONS
CONTEMPLATED HEREBY.
Section 5.10 Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses, whether or not the
Merger shall is consummated.
Section 5.11 Notices. All notices and other communications
hereunder shall be made and given in accordance with the terms of the Merger
Agreement, with notices to the Stockholders being made in care of the Company.
Section 5.12 No Third Party Beneficiaries. This Agreement shall
be binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Section 5.13 Counterparts. This Agreement may be executed in
counterparts each of which shall be deemed to be an original and all of which,
taken together, shall constitute but one and the same original instrument.
Section 5.14 Construction. This Agreement and any documents or
instruments delivered pursuant hereto or in connection herewith shall be
construed without regard to the identity of the person who drafted the various
provisions of the same. Each and every provision of this Agreement and such
other documents and instruments shall be construed as though all of the parties
participated equally in the drafting of the same. Consequently, the parties
acknowledge and agree that any rule of construction that a document is to be
construed against the drafting party shall not be applicable either to this
Agreement or such other documents and instruments.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
IRT PROPERTY COMPANY
By:
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Xxxxxx X. XxXxxxx
President and Chief Executive Officer
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EQUITY ONE, INC. VOTING AGREEMENT SIGNATURE PAGE
By its execution and delivery of this signature page, the undersigned
Stockholder hereby joins in and agrees to be bound by the terms and conditions
of the Equity One, Inc. Voting Agreement dated as of October 28, 2002 (the "EQY
VOTING AGREEMENT") by and among IRT Property Company and the Stockholders (as
defined therein) as a "Stockholder" thereunder, and authorizes this signature
page to be attached to the EQY Voting Agreement or counterparts thereof.
NAME OF STOCKHOLDER
-------------------------------------------
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Number of Equity One Shares:
---------------
Number of IRT Shares:
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Agreed to and accepted this
28th day of October, 2002
IRT PROPERTY COMPANY
By:
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Xxxxxx X. XxXxxxx
President and Chief Executive Officer
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