EXHIBIT 99.4
FORM OF IRT VOTING AGREEMENT
VOTING AGREEMENT dated October 28, 2002, by and among Equity One, Inc., a
Maryland corporation (the "Company") and certain shareholders (each, a
"Shareholder" and, collectively, the "Shareholders") of IRT Property Company, a
Georgia corporation ("IRT").
WHEREAS, contemporaneously herewith, IRT and the Company 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 Shareholder is the record and
beneficial owner of the number of shares of IRT Common Stock and/or shares of
Company Common Stock, set forth on the signature page hereof beneath such
Shareholder's name (with respect to each Shareholder, together with any shares
of IRT Common Stock or Company Common Stock acquired after the date hereof,
whether upon the exercise of warrants, options, conversion of convertible
securities or otherwise, such Shareholder's "Shares"); and
WHEREAS, as a condition to the willingness of the Company to enter into the
Merger Agreement, the Company has requested that the Shareholders agree, and in
order to induce the Company to enter into the Merger Agreement, the Shareholders
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 Shareholder, 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 shareholders of IRT or the Company, however called, and in any action by
consent of the shareholders of IRT or the Company upon which the Merger and
related proposals are to be considered, adopted or approved, such Shareholder
will vote (or cause to be voted) such Shareholder's Shares: (a) in favor of the
approval and adoption of the IRT Shareholder Approval or the Company Stockholder
Approvals, as applicable; (b) against any action, proposal, agreement,
transaction or matter that, if taken, executed or consummated by IRT, would
result in a breach of any covenant, obligation, agreement, representation or
warranty of IRT contained in the Merger Agreement or of the Shareholders
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 IRT, could result in any of the conditions to
the Company'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 Shareholder 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 Shareholder acknowledges
receipt and review of a copy of the Merger Agreement.
Section 1.2 Irrevocable Proxy; Appointment of Proxy. If any Shareholder
fails to comply with the provisions of Section 1.1 (as determined by the Company
in its sole discretion), such Shareholder hereby agrees that such failure shall
result, without any further action by such Shareholder, in the irrevocable
appointment of the Company, and any other individual who shall be hereafter
designated by the Company, as such Shareholder'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 shareholders of IRT
or the Company, 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 SHAREHOLDER MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS
AGREEMENT. Each Shareholder hereby revokes all other proxies and powers of
attorney with respect to such Shareholder'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 Shareholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of any
Shareholder and any obligation of the Shareholder under this Agreement shall be
binding upon the heirs, personal representatives, successors and assigns of such
Shareholder.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder, severally and not jointly, hereby represents and warrants
to the Company as follows:
Section 2.1 Authority. Such Shareholder has all necessary power, authority
and capacity to execute and deliver this Agreement, to perform such
Shareholder's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by such Shareholder
of this Agreement and the consummation by such Shareholder 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 Shareholder are necessary to
authorize the execution and delivery by such Shareholder of this Agreement, and
the consummation by such Shareholder of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by such Shareholder and
constitutes a legal, valid and binding obligation of such Shareholder,
enforceable against such Shareholder 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.
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Section 2.2 No Conflict. Except as set forth on Schedule A, the execution
and delivery of this Agreement by such Shareholder do not, and the performance
of this Agreement by such Shareholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any third party
or 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 Shareholder.
Section 2.4 Ownership of Shares. Except as set forth on Schedule A, such
Shareholder is the record, legal and beneficial owner of that number of Shares
set forth on the signature page hereto opposite such Shareholder'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 Shareholder has sole voting power and sole power
of disposition with respect to all of the Shares owned by such Shareholder and
none of the Shares of such Shareholder 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 Shareholder that is an individual
constitute community property.
ARTICLE 3.
COVENANTS OF THE SHAREHOLDERS
Section 3.1 No Disposition of Shares. Each Shareholder, severally and not
jointly, hereby agrees that, except as contemplated by the Merger Agreement and
this Agreement, such Shareholder 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 Shareholder's voting
rights with respect to, any of such Shareholder'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 IRT Shareholders'
Meeting or the Company Stockholders' Meeting, as the case may be, unless the
transferee or assignee of such voting rights grants an irrevocable proxy to the
Company 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 Shareholder herein
untrue or incorrect in any material respect or have the effect of preventing or
disabling such Shareholder from performing 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 Shareholder hereby
irrevocably waives any rights of appraisal or rights to dissent from the Merger
that the Shareholder may have.
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Section 3.3 No Solicitation of Transactions. Each Shareholder, 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 Shareholder will not and will not permit any investment
banker, counsel or representative of the Shareholder, on behalf of the
Shareholder, 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 Shareholder is otherwise permitted by the Merger Agreement. Each Shareholder
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 Shareholder shall notify
the Company 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 the Company, 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.
ARTICLE 4.
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. 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 Shareholder agrees and
understands that in order to enforce the transfer restrictions contained in this
Agreement, each of the Company and IRT, 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 Shareholders' 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 Shareholders'
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 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.
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Section 5.3 Further Assurances. Each Shareholder shall, upon the request of
the Company, 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 Shareholder recognizes and acknowledges
that he, she or it will have access to certain confidential information of IRT,
the Company 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 Shareholder
only upon receipt of the Shareholder's agreement to maintain it strictly
confidential. So long as such information remains confidential and nonpublic,
the Shareholder hereby agrees not to use or permit any others to use such
information for any purpose not expressly permitted herein. The Shareholder
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 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.
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
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Business Corporation Code apply to the proxies granted hereby or the Shares of
Company Common Stock or IRT 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 Shareholders being made in care of IRT.
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
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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.
EQUITY ONE, INC.
By:___________________________________
Xxxxxx X. Xxxxxxx
Chief Financial Officer
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IRT Voting Agreement Signature Page
-----------------------------------
By its execution and delivery of this signature page, the undersigned
Shareholder hereby joins in and agrees to be bound by the terms and conditions
of the IRT Voting Agreement dated as of October 28, 2002 (the "IRT Voting
Agreement") by and among Equity One, Inc. and the Shareholders (as defined
therein) as a "Shareholder" thereunder, and authorizes this signature page to be
attached to the IRT Voting Agreement or counterparts thereof.
NAME OF SHAREHOLDER
___________________________________
By: _______________________________
Name:__________________________
Title: ________________________
Number of IRT Shares: ____________
Agreed to and accepted this
28th day of October, 2002
EQUITY ONE, INC.
By:_____________________________
Xxxxxx X. Xxxxxxx
Chief Financial Officer
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