EXHIBIT 2
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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of July 9, 2006, is
made and entered into by and among Centro Saturn LLC, a Delaware limited
liability company ("Parent"), Centro Saturn MergerSub LLC, a Delaware limited
liability company and a wholly owned subsidiary of Parent ("MergerSub" and
together with Parent, "Buyer Parties"), and The New England Teamsters and
Trucking Industry Pension Fund, a Massachusetts business trust ("Pension Fund"),
and Net Realty Holding Trust, a Massachusetts business trust and a wholly owned
subsidiary of Pension Fund ("Net" and together with Pension Fund, "NETT").
WHEREAS, Heritage Property Investment Trust, Inc., a Maryland
corporation (the "Company"), and Buyer Parties wish to effect a business
combination through a merger of the Company with and into MergerSub (the
"Merger") on the terms and subject to the conditions set forth in that certain
Agreement and Plan of Merger, dated as of July 9, 2006, by and among the Company
and Buyer Parties (the "Merger Agreement") and in accordance with the Maryland
General Corporation Law and the Delaware Limited Liability Company Act;
WHEREAS, NETT owns 19,563,558 shares of common stock, par value $0.001
per share, of the Company (including any equity interests into which such common
shares may be converted or exchanged after the date hereof, the "Company
Shares") (such Company Shares, together with any other equity interests in the
Company acquired by NETT after the date hereof and during the term of this
Agreement, being collectively referred to herein as the "Subject Shares"); and
WHEREAS, as an inducement to Buyer Parties to enter into the Merger
Agreement and incur the obligations set forth therein, Buyer Parties require
that NETT enters into this Agreement, and NETT desires to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein and not defined shall
have the meanings specified in the Merger Agreement.
Section 2. Representations, Warranties and Covenants of NETT. NETT
represents and warrants to Buyer Parties as follows:
(a) Authority. NETT has all requisite power and authority to enter
into this Agreement, perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by NETT, and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary action on the part of NETT. This Agreement has
been duly authorized, executed and delivered by NETT and constitutes a valid and
binding obligation of NETT enforceable in accordance with its terms.
(b) No Conflicts. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby or
compliance with the terms hereof will violate, conflict with or result in a
breach, or constitute a default (with or without notice or lapse of time or
both) under any provision of the organizational documents of NETT or any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable to
NETT or to NETT's property or assets.
(c) The Subject Shares. NETT is the beneficial owner of and has good
and marketable title to, the Subject Shares, free and clear of any mortgage,
lien, pledge, charge, encumbrance, security interest or other adverse claim.
NETT does not own, of record or beneficially, any shares of beneficial interest
of the Company other than the Subject Shares. NETT has the sole right to vote,
or to dispose of, such Subject Shares, and none of such Subject Shares is
subject to any agreement, arrangement or restriction (other than with respect to
restricted shares) with respect to the voting of such Subject Shares, except as
contemplated by this Agreement. There are no agreements or arrangements of any
kind, contingent or otherwise, obligating NETT to sell, transfer, assign, grant
a participation interest in, option, pledge, hypothecate or otherwise dispose or
encumber (each, a "Transfer"), or cause to be Transferred, any of the Subject
Shares. No Person has any contractual or other right or obligation to purchase
or otherwise acquire any of the Subject Shares.
(d) Litigation. There is no action, proceeding or investigation
pending or threatened against NETT that questions the validity of this Agreement
or any action taken or to be taken by NETT in connection with this Agreement.
(e) Covenants. From the date hereof until the termination of this
Agreement in accordance with Section 5 hereof:
(i) NETT agrees not to take any action that would make any
representation or warranty of NETT contained herein untrue or
incorrect or have the effect of preventing, impeding, or in any
material respect, interfering with or adversely affecting the
performance by NETT of its obligations under this Agreement.
(ii) NETT hereby waives any rights of appraisal or rights of
dissent from the Merger that NETT may have;
(iii) NETT hereby agrees, while this Agreement is in effect, to
promptly notify Parent of the number of any new Company Shares
acquired by NETT, if any, after the date hereof. Any such shares
shall be subject to the terms of this Agreement as though owned
by NETT on the date hereof; and
(iv) NETT hereby authorizes Parent and the Company to publish
and disclose in any announcement or disclosure required by the
SEC and in the Proxy Statement NETT's identity and ownership of
the Subject Shares and the nature of NETT's obligation under this
Agreement, provided that NETT is provided with a reasonable
opportunity to review and comment on such disclosure.
Section 3. Representations and Warranties of Buyer Parties. Each of
Buyer Parties hereby represents and warrants to NETT as follows:
(a) Authority. Each of Buyer Parties has all requisite power and
authority to enter into this Agreement, perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
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this Agreement by Buyer Parties, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary action on the
part of Buyer Parties. This Agreement has been duly executed and delivered by
each of the Buyer Parties and constitutes a valid and binding obligation of each
of Buyer Parties enforceable in accordance with its terms.
(b) No Conflicts. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby or
compliance with the terms hereof will violate, conflict with or result in a
breach, or constitute a default (with or without notice or lapse of time or
both) under any provision of, the organizational documents of Buyer Parties or
any trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to Buyer Parties or to the Buyer Parties' property or assets.
Section 4. Agreement to Vote in Favor and Against, Restrictions on
Transfers, Irrevocable Proxy. Until the termination of this Agreement in
accordance with Section 5, NETT agrees as follows:
(a) Agreement to Vote in Favor. At any meeting of stockholders of the
Company called to vote upon the Merger and the Merger Agreement or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval (including by written consent in lieu of a meeting) with respect
to the Merger and the Merger Agreement is sought, NETT shall vote (or cause to
be voted) its Subject Shares in favor of the approval of the Merger and the
Merger Agreement and each of the transactions contemplated by the Merger
Agreement.
(b) Agreement to Vote Against. At any meeting of stockholders of the
Company or at any adjournment thereof or in any other circumstances upon which a
vote, consent or other approval of all or some of the stockholders of the
Company is sought, NETT shall vote (or cause to be voted) its Subject Shares
against (i) any merger agreement or merger (other than the Merger Agreement and
the Merger), consolidation, combination, sale or transfer of a material amount
of assets, reorganization, recapitalization, dissolution, liquidation or winding
up of or by the Company or any Acquisition Proposal, (ii) any amendment of the
Company's Articles of Amendment and Restatement (Third) or Bylaws or other
proposal or transaction involving the Company or any of its subsidiaries, which
amendment or other proposal or transaction would in any manner delay, impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement or change in any manner
the voting rights of Company Shares, and (iii) any action, agreement,
transaction or proposal that would result in a breach of any representation,
warranty, covenant, agreement or other obligation of the Company in the Merger
Agreement.
(c) Restrictions on Transfer. NETT agrees not to, after the date of
this Agreement, directly or indirectly, (i) Transfer or enter into any
agreement, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any Subject Shares to any Person,
other than pursuant to the Merger Agreement or (ii) grant any proxies, deposit
any Subject Shares into any voting trust or enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, with respect to the Subject
Shares, other than pursuant to this Agreement.
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(d) Irrevocable Proxy. NETT hereby revokes any and all previous
proxies granted with respect to the Subject Shares. Subject to the last two
sentences of this subsection (d), NETT hereby irrevocably appoints Parent or its
designee as NETT's agent, attorney and proxy, to vote (or cause to be voted) the
Subject Shares in a manner consistent with Sections 4(a) and 4(b) hereof. This
proxy is irrevocable and coupled with an interest and is granted in
consideration of the Company and Parent entering into the Merger Agreement. In
the event that NETT fails for any reason to vote the Subject Shares in
accordance with the requirements of Sections 4(a) and 4(b) hereof, then the
proxyholder shall have the right to vote NETT's Subject Shares in accordance
with the provisions of the second sentence of this subsection (d). The vote of
the proxyholder shall control in any conflict between the vote by the
proxyholder of NETT's Subject Shares and a vote by NETT of its Subject Shares.
Notwithstanding the foregoing, the proxy granted by NETT shall be automatically
revoked upon termination of this Agreement in accordance with its terms.
Section 5. Termination. This Agreement shall terminate (i) upon the
earlier of (A) the Effective Time and (B) the termination of the Merger
Agreement in accordance with the terms thereof, or (ii) at any time upon notice
by Buyer Parties. No party hereto shall be relieved from any liability for
breach of this Agreement by reason of any such termination.
Section 6. No Shop.
(a) General. NETT in its capacity as a stockholder of the Company
shall not, and shall use its reasonable best efforts to cause its accountants,
affiliates, attorneys, consultants, representatives or agents (collectively, the
"Representatives") not to, directly or indirectly, (i) solicit, initiate or
knowingly facilitate or encourage any Acquisition Proposal, (ii) participate in
any negotiations regarding, or furnish to any person any material nonpublic
information in connection with, any Acquisition Proposal, (iii) engage in
discussions with any person with respect to any Acquisition Proposal, (iv)
approve or recommend any Acquisition Proposal, or (v) enter into any letter of
intent or similar document or any agreement or commitment providing for any
Acquisition Proposal.
(b) Notification. NETT promptly (and in any event within 24 hours)
shall advise Parent orally and in writing of any Acquisition Proposal or any
inquiry, proposal or offer, request for information or request for discussions
or negotiations with respect to or that would reasonably be expected to lead to
any Acquisition Proposal, the identity of the person making any such Acquisition
Proposal or inquiry, proposal, offer or request and shall provide Parent with a
copy (if in writing) and summary of the material terms of any such Acquisition
Proposal or inquiry, proposal or request. NETT shall keep Parent informed of the
status (including any change to the terms thereof) of any such Acquisition
Proposal or inquiry, proposal or request. NETT agrees that it shall not and
shall use its reasonable best efforts to cause its Representatives not to, enter
into any confidentiality agreement or other agreement with any person subsequent
to the date of this Agreement which prohibits NETT from providing such
information to Parent.
(c) Ongoing Discussions. On the date hereof, NETT shall immediately
cease and cause to be terminated any existing solicitation, discussion or
negotiation by NETT or its Representatives with respect to any Acquisition
Proposal.
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Section 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without regard
to the conflicts of law rules of such state.
Section 8. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in any federal court located in the State
of Maryland or any Maryland state court, and each of the parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Process in
any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party
as provided in Section 12 shall be deemed effective service of process on such
party.
Section 9. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 10. Specific Performance. NETT acknowledges and agrees that
(i) the covenants, obligations and agreements of NETT contained in this
Agreement relate to special, unique and extraordinary matters, and (ii) a
violation of any of the terms of such covenants, obligations or agreements will
cause Buyer Parties irreparable injury for which adequate remedies are not
available at law. Therefore, NETT agrees that Buyer Parties shall be entitled to
an injunction, restraining order or such other equitable relief (without the
requirement to post bond) as a court of competent jurisdiction may deem
necessary or appropriate to restrain NETT from committing any violation of such
covenants, obligations or agreements. These injunctive remedies are cumulative
and in addition to any other rights and remedies Buyer Parties may have.
Section 11. Amendment, Waivers, Etc. Neither this Agreement nor any
term hereof may be amended or otherwise modified other than by an instrument in
writing signed by Buyer Parties and NETT. No provision of this Agreement may be
waived, discharged or terminated other than by an instrument in writing signed
by the party against whom the enforcement of such waiver, discharge or
termination is sought.
Section 12. Assignment; No Third Party Beneficiaries. This Agreement
shall not be assignable or otherwise transferable by a party without the prior
consent of the other parties, and any attempt to so assign or otherwise transfer
this Agreement without such consent shall be void and of no effect; provided
that Buyer Parties may, in its sole discretion, assign or transfer all or any of
its rights, interests and obligations under this Agreement to any affiliate of
Buyer Parties. This Agreement shall be binding upon the respective heirs,
successors, legal representatives and permitted assigns of the parties hereto.
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Nothing in this Agreement shall be construed as giving any Person, other than
the parties hereto and their heirs, successors, legal representatives and
permitted assigns, any right, remedy or claim under or in respect of this
Agreement or any provision hereof.
Section 13. Notices. All notices, requests, claims, demands and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by prepaid overnight courier (providing
proof of delivery), by facsimile or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses or facsimile numbers,
if to Buyer Parties, to:
Centro Saturn LLC
c/o Centro Properties Group
Corporate Offices 0xx Xxxxx
Xxx Xxxx Xxxxxxxx Xxxxxx
235 Springvale Road
Xxxx Waverly Victoria, Australia 3150
Attention: Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx
Telecopier No: 011-61-3-9886-1345
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
if to NETT, to:
The New England Teamsters and Trucking Industry
Pension Fund
0 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Net Realty Holding Trust
0 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X Xxxxx and Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Facsimile: (000) 000-0000
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And
Xxxxxxxx, Xxxxxxxx & Xxxx
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Tel: (000) 000-0000 , ext. 105
Facsimile: (000) 000-0000
or to such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. on a Business
Day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next succeeding
Business Day in the place of receipt.
Section 14. Remedies. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 15. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
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
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 16. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 17. NETT Capacity. NETT has executed this Agreement solely in
its capacity as a stockholder of the Company. Without limiting the foregoing,
nothing in this Agreement shall limit or affect any actions taken by any
representative of NETT in his or her capacity as an officer, director, member,
employee or manager of the Company.
Section 18. Section Headings. The article and section headings of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
Section 19. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
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[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PARENT:
CENTRO SATURN LLC
By: ____________________________________
Name: __________________________________
Title: _________________________________
MERGERSUB:
CENTRO SATURN MERGERSUB LLC
By: ____________________________________
Name: __________________________________
Title: ________________________________
NETT:
THE NEW ENGLAND TEAMSTERS AND
TRUCKING INDUSTRY PENSION FUND
By: ____________________________________
Name: __________________________________
Title:__________________________________
NET REALTY HOLDING TRUST
By: ____________________________________
Name: __________________________________
Title:__________________________________
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