EXHIBIT 10.2
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XXXX-XXXX REALTY CORPORATION
AGREEMENT TO VOTE AND PROXY
THIS AGREEMENT TO VOTE AND PROXY (this "Agreement") dated as of June 27,
2000, is by and between Xxxxxx X. August, Xxxxxxx X. Xxxxxx, as trustee of TFA
Grantor Retained Annuity Trust and as trustee of MJA Grantor Retained Annuity
Trust (collectively "Shareholder"), and Xxxx-Xxxx Realty Corporation ("Xxxx-
Xxxx").
RECITALS
X. Xxxx-Xxxx, Xxxx-Xxxx Realty, L.P., a Delaware limited partnership
("Xxxx-Xxxx Partnership"), Xxxxxxxx Properties Trust, a Maryland real estate
investment trust ("Xxxxxxxx") and Xxxxxxxx Properties Acquisition Partners,
L.P., a Delaware limited partnership ("Xxxxxxxx Partnership"), are entering into
an Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
pursuant to which (i) Xxxxxxxx Partnership shall be merged with and into Xxxx-
Xxxx Partnership and (ii) Xxxxxxxx shall be merged with and into Xxxx-Xxxx (the
"Merger").
B. As of the date hereof, Shareholder owns, beneficially and of record,
of the outstanding common stock, par value $.01 per share, of Xxxxxxxx (the
"Common Stock") set forth on Exhibit A hereto (such shares of Common Stock and
any additional shares of Common Stock owned in the future by Shareholder being
herein referred to as the "Shares").
C. In consideration of Xxxx-Xxxx'x agreement to enter into the Merger
Agreement, Shareholder (i) agrees to vote the Shares in favor of the Merger
(subject to the irrevocable proxy provided for in Section 2 hereof (the
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"Proxy")), and (ii) grants to Xxxx-Xxxx the Proxy covering the Shares to vote in
favor of the Merger, all in accordance with the terms set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained in this Agreement, the parties
hereto agree as follows:
1. Voting Agreement.
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1.1 Agreement to Support Merger. Shareholder agrees to vote the
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Shares in favor of the Merger, pursuant to the terms of the Merger Agreement, at
the Xxxxxxxx Shareholders Meeting (as defined in the Merger Agreement).
1.2 Applicability of Voting Agreement. The voting agreement contained
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in Section 1.1 shall apply to the Shares whether or not owned by Shareholder.
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2. Proxy with Respect to Shares. Shareholder hereby irrevocably appoints
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Xxxx-Xxxx as its attorney and proxy, with full power of substitution, to vote in
such manner as such attorney and proxy or its substitute shall, in its sole
discretion, deem proper, and otherwise act with respect to all of the Shares
which it is entitled to vote at any meeting of shareholders (whether annual or
special and whether or not an adjourned meeting) of Xxxxxxxx; provided, however,
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that Shareholder grants a proxy hereunder only with respect to the following
matters that may be presented to the shareholders of Xxxxxxxx (the "Designated
Matters"): (i) votes with respect to the Merger and the Merger Agreement; (ii)
votes with respect to any action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
Xxxxxxxx under the Merger Agreement; (iii) votes with respect to any action or
agreement that would impede, interfere with, delay, postpone or attempt to
discourage the Merger and the Merger Agreement, including, but not limited to,
(a) any reorganization or liquidation involving Xxxxxxxx, (b) any change in the
board of trustees of Xxxxxxxx, except as otherwise agreed to in writing by Xxxx-
Xxxx, or (c) any material change in the present capitalization of Xxxxxxxx; (iv)
votes relating to any other material change in the corporate structure or
business of Xxxxxxxx; and (v) votes in favor and approval of the matter
Shareholder has agreed to vote in favor of in Section 1.1 hereof. This proxy is
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irrevocable, is coupled with an interest sufficient in law to support an
irrevocable proxy and is granted in consideration of and as an inducement to
cause Xxxxxxxx to enter into the transactions contemplated by the Merger
Agreement. This proxy shall revoke any other proxy granted by Shareholder at
any time with respect to the Shares and no subsequent proxies will be given by
Shareholder with respect to the Shares while the Proxy is in effect. In
addition, if subsequent to the date hereof Shareholder is entitled to vote the
Shares for any purpose, it shall take all actions necessary to vote the Shares
pursuant to instructions received from Xxxx-Xxxx; provided, however, that the
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provisions of this sentence shall only apply to the Designated Matters. This
proxy shall apply to the Shares whether or not owned by Shareholder.
3. Legends. The stock certificates representing the Shares shall bear
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the following legend until the voting agreement contained in Section 1.1
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terminates:
"The shares represented by this Certificate are subject to a voting
agreement and proxy pursuant to an Agreement to Vote and Proxy,
dated June 27, 2000, between Xxxxxx X. August, Xxxxxxx X. Xxxxxx, as
trustee of TFA Grantor Retained Annuity Trust and as trustee of MJA
Grantor Retained Annuity Trust, and Xxxx-Xxxx Realty Corporation,
and any amendments thereof. A copy of such agreement is on file at
the principal place of business of Xxxxxxxx Properties Trust
("Xxxxxxxx") and a copy will be provided to the holder hereof at no
cost upon written request to the corporate secretary of Xxxxxxxx."
4. Representations and Warranties of Shareholder. Shareholder represents
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and warrants to Xxxx-Xxxx as follows:
4.1 Ownership of Shares. On the date hereof, the Shares are all of the
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shares of Xxxxxxxx' Common Stock currently beneficially owned by Shareholder.
Shareholder does not have any rights to acquire any additional shares of
Xxxxxxxx' Common Stock other than pursuant
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to existing stock options granted under Xxxxxxxx stock option plans. Until the
termination of this Agreement, Shareholder shall not sell or otherwise transfer
any of the Shares; provided, however, Shareholder may sell any or all of his
Shares and/or options to acquire Shares immediately prior to the Merger.
Shareholder has good, valid and marketable title to the Shares, free and clear
of all liens, encumbrances, restrictions, options, warrants, rights to purchase
and claims of every kind (other than the encumbrances created by this Agreement,
bona fide loan transactions, restrictions on transfer under applicable Federal
and state securities laws and restrictions on transfer created by any plans of
Xxxxxxxx under which such Shares were issued).
4.2 Power; Binding Agreement. Shareholder has the full legal right, power
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and authority to enter into and perform all of Shareholder's obligations under
this Agreement. The board of trustees of Xxxxxxxx has taken all necessary
action to approve the transactions contemplated by this Agreement pursuant to
Section 3-602 of the Maryland General Corporation Law. The execution and
delivery of this Agreement by Shareholder has been authorized by Shareholder and
will not violate any other agreement to which Shareholder is a party, including,
without limitation, any voting agreement, shareholders agreement, voting trust
or proxy. This Agreement has been duly executed and delivered by Shareholder
and constitutes a legal, valid and binding agreement of Shareholder, enforceable
in accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws, now or hereafter in effect affecting creditors' rights and
remedies generally or general principles of equity. Neither the execution nor
delivery of this Agreement nor the consummation by Shareholder of the
transactions contemplated hereby will (i) require any consent or approval of or
filing with any governmental or other regulatory body except for filings on
Schedule 13D under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or (ii) constitute a violation of, conflict with or constitute
a default under, any contract, commitment, agreement, understanding, arrangement
or other restriction of any kind to which Shareholder is a party or by which
Shareholder is bound.
5. Termination. This Agreement (other than Section 6) shall terminate on
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the earliest of:
(a) the date on which Xxxx-Xxxx and Shareholder mutually consent
to terminate this Agreement in writing;
(b) upon the consummation of the transactions contemplated by
the Merger Agreement; or
(c) prior to the consummation of the transactions contemplated
by the Merger Agreement, upon the termination of the Merger Agreement pursuant
to its terms.
6. Expenses. Each party hereto will pay all of its expenses in
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connection with the transactions contemplated by this Agreement.
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7. Notice of Additional Shares. Shareholder agrees, while this Agreement
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is in effect, to notify Xxxx-Xxxx promptly of the number of any shares of
Xxxxxxxx' Common Stock acquired by Shareholder after the date hereof.
8. Notices. All notices or other communications required or permitted
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hereunder shall be in writing (except as otherwise provided herein) and shall be
deemed duly given when received by delivery in person, by telecopy or by
certified mail, postage prepaid, or by an overnight courier service, addressed
as follows:
If to Xxxx-Xxxx:
Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with copies to:
Pryor, Cashman, Xxxxxxx & Xxxxx L.L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
If to Shareholder:
Xxxxxxxx Properties Trust
0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Telecopy: (000) 000-0000
9. Entire Agreement; Amendment. This Agreement, together with the
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documents expressly referred to herein, constitutes the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersedes all prior agreements and understandings among the parties with
respect to such subject matter. This Agreement may not
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be modified, amended, altered or supplemented except by an agreement in writing
executed by the party against whom such modification, amendment, alteration or
supplement is sought to be enforced.
10. Assigns. This Agreement shall be binding upon, and inure to the
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benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties.
11. Governing Law. This Agreement, and all matters relating hereto, shall
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be governed by, and construed in accordance with the laws of the State of
Maryland without giving effect to the principles of conflicts of laws thereof.
12. Injunctive Relief. The parties agree that in the event of a breach of
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any provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. The parties therefore agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may elect to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of such provision, as well as to
obtain damages for breach of this Agreement and such aggrieved party may take
any such actions without the necessity of posting a bond. By seeking or
obtaining such relief, the aggrieved party will not be precluded from seeking or
obtaining any other relief to which it may be entitled.
13. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
14. Severability. Any term or provision of this Agreement which is
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invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms 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 such provision shall be
interpreted to be only so broad as is enforceable.
15. Further Assurances. Each party hereto shall execute and deliver such
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additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
16. Third Party Beneficiaries. Nothing in this Agreement, expressed or
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implied, shall be construed to give any person other than the parties hereto any
legal or equitable right, remedy or claim under or by reason of this Agreement
or any provision contained herein.
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IN WITNESS WHEREOF, Xxxx-Xxxx and Shareholder have each caused this
Agreement to be executed by their duly authorized officers as of the date and
year first above written.
XXXX-XXXX REALTY CORPORATION
By: /s/ XXXXXXXX X. XXXXX
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Name: Xxxxxxxx X. Xxxxx
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Title: Chief Executive Officer
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SHAREHOLDERS
/s/ XXXXXX X. AUGUST
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Xxxxxx X. August
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
as trustee of TFA Grantor Retained Annuity Trust
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
as trustee of MJA Grantor Retained Annuity Trust
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EXHIBIT A
Xxxxxx X. August
Beneficial Ownership
Ownership in Xxxxxxxx Properties Trust Amount
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Shares of Common Stock 230,750
Shares Held by TFA Grantor Retained Annuity Trust 58,259
Shares Held by MJA Grantor Retained Annuity Trust 58,259
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Total 347,268
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