Exhibit 10.1
PROXY AGREEMENT
PROXY AGREEMENT, dated as of February 12, 1996 (this "Agreement"), among
XXXXXX PROPERTIES, INC., a Delaware corporation operating as a real estate
investment trust ("Xxxxxx"), and each other person and entity listed on the
signature pages hereof (each, a "Stockholder").
WHEREAS, as of the date hereof each Stockholder owns (either beneficially
or of record) the number of shares of beneficial interest, par value $1.00 per
share ("EastGroup Stock"), of EastGroup Properties, a Maryland real estate
investment trust ("EastGroup"), set forth opposite such Stockholder's name on
Exhibit A hereto (all such shares and any shares hereafter acquired by the
Stockholders prior to the termination of this Agreement being referred to herein
as the "Shares");
WHEREAS, Xxxxxx and EastGroup propose to enter into an Agreement and Plan
of Merger, dated as of the date hereof (as the same may be amended from time to
time, the "Merger Agreement"), which provides, upon the terms and subject to the
conditions thereof, for the merger of Xxxxxx with and into EastGroup (the
"Merger"); and
WHEREAS, as a condition to the willingness of Xxxxxx to enter into the
Merger Agreement, Xxxxxx has requested that each Stockholder agree, and, in
order to induce Xxxxxx to enter into the Merger Agreement, each Stockholder has
agreed, severally and not jointly, to xxxxx Xxxxxx irrevocable proxies to vote
such Stockholder's Shares;
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants
to Xxxxxx as follows:
SECTION 1.01. Due Authority. (a) Such Stockholder has full power and
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authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by or on behalf of such Stockholder and, assuming its due
authorization, execution and delivery by Xxxxxx, constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting creditors'
rights generally and subject, as to enforceability, to the effect of general
principles of equity (regardless of whether such enforceability is considered in
proceeding in equity or at law).
(b) There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which such Stockholder is trustee whose consent
is required for the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(c) If such Stockholder is married and such Stockholder's Shares constitute
community property, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, such
Stockholder's spouse, enforceable against such person in accordance with its
terms.
SECTION 1.02. No Conflict; Consents. (a) The execution and delivery of
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this Agreement by such Stockholder do not, and the performance of this Agreement
by such Stockholder shall not, (i) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to such Stockholder or by which
such Stockholder's Shares are bound or affected or (ii) result in any breach of
or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of such Stockholder's Shares pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which such Stockholder is a party or by which
such Stockholder or such Stockholder's Shares are bound or affected.
(b) 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 governmental or regulatory authority except for applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended, and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by such Stockholder of his or her obligations under this
Agreement in any material respect.
SECTION 1.03. Title to Shares. Such Stockholder is the record or
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beneficial owner of his or her Shares free and clear of any proxy or voting
restriction other than pursuant to this Agreement.
SECTION 1.04. No Encumbrances. Such Stockholder's Shares and the
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certificates representing such Shares are now and at all times during the term
hereof will be held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever except for any such encumbrances or proxies
arising hereunder.
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SECTION 1.05. Acknowledgment of Reliance. Such Stockholder understands
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and acknowledges that Xxxxxx is entering into the Merger Agreement in reliance
upon such Stockholder's execution and delivery of this Agreement.
ARTICLE II
TRANSFER AND VOTING OF SHARES
SECTION 2.01. Transfer of Shares. During the Proxy Term (as defined
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below), and except as otherwise provided herein, each Stockholder shall not (a)
sell, transfer, pledge, encumber, assign or otherwise dispose of any of such
Stockholder's Shares, (b) deposit such Stockholder's Shares into a voting trust
or enter into a voting agreement or arrangement with respect to such Shares or
grant any proxy or power of attorney with respect thereto or (c) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect acquisition or sale, transfer, pledge, encumbrance, assignment or
other disposition of any EastGroup Stock; provided, however, that
notwithstanding the foregoing a Stockholder may transfer his or her Shares in
connection with the cashless exercise of an option to acquire EastGroup Stock.
SECTION 2.02. Voting of Shares; Further Assurances. (a) Each Stockholder,
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by this Agreement, with respect to those Shares that such Stockholder owns of
record, does hereby constitute and appoint Xxxxxx, or any nominee of Xxxxxx,
with full power of substitution, during and for the Proxy Term, as such
Stockholder's true and lawful attorney and irrevocable proxy, for and in such
Stockholder's name, place and stead, to vote each of such Shares as such
Stockholder's proxy, at every annual, special or adjourned meeting of the
stockholders of EastGroup (including the right to sign such Stockholder's name
(as stockholder) to any consent, certificate or other document relating to
EastGroup that the law of the State of Maryland may permit or require) (i) in
favor of the adoption of the Merger Agreement and approval of the Merger and the
other transactions contemplated by the Merger Agreement, (ii) against any
proposal for any action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
EastGroup under the Merger Agreement or which could result in any of the
conditions of EastGroup's obligations under the Merger Agreement not being
fulfilled, and (iii) in favor of any other matter relating to consummation of
the transactions contemplated by the Merger Agreement. Each Stockholder intends
this proxy to be irrevocable and coupled with an interest and will take such
further action and execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revokes any proxy previously
granted by such Stockholder with respect to such Stockholder's Shares. Each
Stockholder further agrees to cause the Shares owned by such Stockholder
beneficially to be voted in accordance with the foregoing.
(b) For the purposes of this Agreement, "Proxy Term" shall mean the period
from the execution of this Agreement until the termination of the Merger
Agreement.
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(c) Each Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Xxxxxx the power to carry out the provisions of this Agreement.
SECTION 2.03. Certain Events. Each Stockholder agrees that this Agreement
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and the obligations hereunder shall attach to such Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise,
including without limitation such Stockholder's heirs, guardians, administrators
or successors.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Severability. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 3.02. Entire Agreement. This Agreement constitutes the entire
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agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
SECTION 3.03. Amendments. This Agreement may not be modified, amended,
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altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto; provided that Exhibit A hereto may be
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supplemented by Xxxxxx by adding the name and other relevant information
concerning any stockholder of EastGroup who agrees to be bound by the terms of
this Agreement without the agreement of any other party hereto, and thereafter
such added stockholder shall be treated as a "Stockholder" for all purposes of
this Agreement.
SECTION 3.04. Assignment. This Agreement shall not be assigned by
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operation of law or otherwise.
SECTION 3.05. Parties in Interest. This Agreement shall be binding upon
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and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied,
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is intended to or shall confer upon any person any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
SECTION 3.06. Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 3.07. Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Maryland without regard
to its rules of conflict of laws.
SECTION 3.08. Counterparts. This Agreement may be executed in one or more
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counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Operating Officer
/s/ Xxxxxx X. Speed
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Xxxxxx X. Speed
/s/ Xxxxxx X. Speed
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Xxxxxx X. Speed
/s/ Xxxxxxx X. Speed
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Xxxxxxx X. Speed
/s/ Xxxxxx X. Speed
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Xxxxxx X. Speed
/s/ Stewart R. Speed
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Stewart R. Speed
/s/ Xxxxx X. Xxxxxx XX
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Xxxxx X. Xxxxxx XX
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/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx, custodian
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Xxxxxxxx X. Xxxxxx, as custodian for
Xxxxxxxx X. Xxxxxx and Xxxxxxxxx X. Xxxxxx
/s/ N. Xxxxx XxXxx
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N. Xxxxx XxXxx
/s/ N. Xxxxx XxXxx, custodian
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N. Xxxxx XxXxx, as custodian for his minor
children
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EXHIBIT A
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Number of Shares of
Name and Address EastGroup Stock Owned
of Stockholder by Stockholder/1/
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Xxxxxx X. Speed 89,421
Xxxxxx X. Speed 14,592
Xxxxxxx X. Speed 23,355
Xxxxxx X. Speed 11,142
Stewart R. Speed 29,905
Xxxxx X. Xxxxxx XX 21,658
Xxxxx X. Xxxxxx XX and 2,150
Xxxxxxxx X. Xxxxxx, JTWROS
Xxxxxxxx X. Xxxxxx 1,620
Xxxxxxxx X. Xxxxxx, as custodian for 1,500
Xxxxxxxx X. Xxxxxx and Xxxxxxxxx X. Xxxxxx
N. Xxxxx XxXxx 8,633
N. Xxxxx XxXxx, as custodian for his 1,035
minor children
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/1/ Indicates beneficial and, unless otherwise indicated, record
ownership.
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