EXHIBIT 3
FORM OF VOTING AGREEMENT
This Voting Agreement (this "Agreement"), dated as of May 29, 2003,
between ("Holder") and Hometown America, LLC, a Delaware limited
liability company ("Purchaser").
WHEREAS, Purchaser and Chateau Communities, Inc., a Maryland
corporation ("Chateau"), among others, are parties to that certain Agreement and
Plan of Merger (the "Merger Agreement"), dated as of the date hereof, pursuant
to which the parties thereto shall cause, among other things, Chateau to merge
with and into Merger Sub and shall cause Partnership Merger Sub to merge with
and into Chateau OP, upon the terms and subject to the conditions set forth in
the Merger Agreement; and
WHEREAS, in order to induce Purchaser to enter into the Merger
Agreement, Purchaser has requested Holder, and Holder has agreed, to enter into
this Agreement; and
WHEREAS, capitalized terms used herein and not otherwise defined,
shall have the meanings ascribed to such terms in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be legally bound, the
parties hereto hereby agree as follows:
1. During the period (the "Agreement Period") beginning on the date
hereof and ending on the earlier of (i) the Effective Time and (ii) the date of
termination of the Merger Agreement in accordance with its terms, Holder agrees
to vote or take action by written consent, or act to approve (each, a "Vote")
any and all Chateau Common Stock or Chateau OP Units, including any securities
or options exchangeable or convertible into any of the above, or any capital
stock or other securities of any of the above, in each case, as set forth
opposite Holder's name on Schedule A hereto (the "Schedule A Securities")
beneficially owned by Holder as of the date hereof, and any such Schedule A
Securities acquired by Holder after the date hereof, (x) to approve and adopt
the Merger Agreement, the Merger and the Partnership Merger and any actions
directly and reasonably related thereto at any meeting or meetings, or actions
by written consent or other approvals, of the holders of Chateau Common Stock or
Chateau OP Unit Holders, and at any adjournments or postponements thereof, at or
by which such Merger Agreement, or such other actions, are submitted for the
consideration and vote, consent or approval of the holders of Chateau Common
Stock or Chateau OP Unit Holders, so long as such meeting, consent or approval
is held or sought and completed prior to the termination of the Agreement
Period, and (y) to help cause such meeting, consent or approval to be held or
sought.
2. During the Agreement Period, Holder agrees that it will not Vote
any of Holder's Schedule A Securities in favor of the approval of any other
merger, consolidation, sale of assets, reorganization, recapitalization,
liquidation or winding up of Chateau or Chateau OP or any Affiliate of either of
them or any other extraordinary transaction involving Chateau or Chateau OP or
any Affiliate of either of them or any matters related to or in connection
therewith, or any corporate action that upon consummation would either frustrate
the purposes of, or prevent or delay the consummation of, the transactions
contemplated by the Merger Agreement.
3. As security for Holder's agreements provided for herein, Holder
grants to Purchaser a proxy to vote the Schedule A Securities solely with
respect to the matters specified in, and in
accordance with the provisions of, Paragraphs 1 and 2 of this Agreement. Holder
agrees that this proxy shall be irrevocable during the Agreement Period and
coupled with an interest and will take such further action or execute such other
instruments as may be reasonably necessary to effectuate the intent of this
proxy and hereby revokes any proxy previously granted by Holder with respect to
the Schedule A Securities.
4. During the Agreement Period, Holder shall comply with (and not
cause Chateau or Chateau OP to violate) Section 4.6 of the Merger Agreement.
5. Holder agrees not to exercise any rights (including, without
limitation, Section 3-210 of the MGCL, Section 10-208 of the MRULPA and Section
4A-705 of the MLLCA, or any other similar Law) to demand appraisal with respect
to any of the Schedule A Securities owned by Holder with respect to the Mergers.
6. Holder represents and warrants to Purchaser that as of the date
hereof:
(a) Holder (i) (A) owns beneficially and of record all of the
Schedule A Securities, free and clear of any Liens and (B) does not own
beneficially or of record any other shares of Chateau Common Stock, Chateau OP
Units or securities convertible into or exchangeable for shares of Chateau
Common Stock, Chateau OP Units or any other securities or options relating
thereto other than the Schedule A Securities, (ii) has the full and unrestricted
legal capacity, power, authority and right to enter into, execute, deliver and
perform its obligations under this Agreement without the consent or approval of
any other person, (iii) has (on the date hereof) and will have (as of the date
of the stockholders Meeting and Chateau Partner Approval), shared or sole voting
power with respect to the Schedule A Securities, and (iv) is not party to any
voting agreement, and has not granted any person any proxy (revocable or
irrevocable), with respect to such shares (other than pursuant to this
Agreement); and
(b) assuming the due authorization, execution and delivery of
this Agreement by Purchaser, this Agreement is the valid and binding agreement
of Stockholder, enforceable in accordance with its terms.
7. Holder agrees that it will not (a) sell, transfer, pledge,
assign, encumber or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, pledge,
assignment, encumbrance or other disposition of, or limitation on the voting
rights of, any of the Schedule A Securities (whether to an Affiliate or
otherwise) until the expiration of the Agreement Period, (b) grant any proxies
or powers of attorney, deposit any Schedule A Securities into a voting trust or
enter into a voting agreement with respect to any Schedule A Securities, (c)
take any action that would make any representation or warranty of Holder
contained herein untrue or incorrect or have the effect of preventing or
delaying Holder from performing its obligations under this Agreement, or (d)
commit or agree to take any of the foregoing actions, other than (i) pursuant to
this Agreement or the Merger Agreement and (ii) transfers to Purchaser. Any
transfer of Schedule A Securities not permitted hereby shall be null and void.
8. Notwithstanding anything herein to the contrary, the covenants
and agreements set forth herein shall not prevent Holder, if Holder is serving
on the Board of Directors of Chateau, from exercising his or her duties and
obligations as a director of Chateau or otherwise taking any action, subject to
the applicable provisions of the Merger Agreement, while acting in such capacity
as a director of Chateau.
9. Holder agrees, while this Agreement is in effect, to promptly
notify Purchaser of the number of any new shares of Chateau Common Stock and
Chateau OP Units, or securities or options
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exchangeable or convertible into or relating to any of the above, or any capital
stock or other security of any of the above, acquired by Holder, if any, after
the date hereof. Any such securities shall be subject to the terms of this
Agreement and shall be Schedule A Securities for all purposes hereunder.
10. Holder will, from time to time, execute and deliver, or cause to
be executed and delivered, such additional or further consents, proxies,
documents and other instruments deemed by Purchaser to be reasonably necessary
or desirable for the purpose of effectively carrying out the transactions
contemplated by this Agreement and the covenants contained herein.
11. If any provision of this Agreement shall be invalid or
unenforceable under applicable law, such provision shall be ineffective to the
extent of such invalidity or unenforceability only, without in any way affecting
the remaining provisions of this Agreement.
12. This Agreement may be executed in two or more counterparts each
of which shall be an original with the same effect as if the signatures hereto
and thereto were upon the same instrument. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by all parties hereto. Except for provisions of this
Agreement that by their terms survive the termination hereof, the provisions of
this Agreement shall terminate upon the expiration of the Agreement Period.
13. 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 if for any reason any party hereto shall have failed to
perform its obligations under this Agreement, then the party seeking to enforce
this Agreement against such non-performing party shall be entitled to specific
performance and injunctive and other equitable relief, and the parties hereto
further agree to waive any requirement for the securing or posting of any bond
in connection with the obtaining of any such injunctive or other equitable
relief. This provision is without prejudice to any other rights or remedies,
whether at law or in equity, that any party hereto may have against any other
party hereto for any failure to perform its obligations under this Agreement.
14. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO ANY
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW. EACH PARTY HERETO IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT THEREOF.
(b) Each of the parties hereto (i) consents to submit itself
exclusively to the personal jurisdiction of the United States District Court in
Maryland or any Maryland State court as well as the jurisdiction of any court
from which an appeal may be taken from such courts in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement, including for the purpose of any litigation, proceeding or other
action arising out of such party's obligations under or with respect to this
Agreement and the transactions contemplated hereby and (ii) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and expressly waives any and all
objections such party may have to venue in such courts.
15. All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally, sent by overnight courier (providing proof of delivery) to the
parties or sent by telecopy (providing confirmation of
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transmission) at the following addresses or telecopy numbers (or at such other
address or telecopy number for a party as shall be specified by like notice):
If to Holder:
If to Purchaser:
Hometown America, LLC
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention:
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of this 29th day of May, 2003.
HOMETOWN AMERICA, L.L.C
By: Hometown Residential Manager, L.L.C.,
a Delaware Limited Liability Company,
Manager
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx, Xx.
Title: Manager
HOLDER
By:
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Name:
Title:
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SCHEDULE A SECURITIES
Holder Securities
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