EXHIBIT 99.1
VOTING AGREEMENT
This VOTING AGREEMENT is entered into on May 3, 2001, by and between
Archstone Communities Trust, a Maryland real estate investment trust
("Archstone"), and [See Exhibit A for a list of directors who have executed the
agreement] (the "Shareholder").
WHEREAS, the Shareholder is the beneficial owner of shares of common
stock, $.01 par value per share (the "Common Stock"), of Xxxxxxx X. Xxxxx
Residential Realty, Inc., a Maryland corporation ("Xxxxx"), and units of limited
partnership interest ("Units") of Xxxxxxx X. Xxxxx Residential Realty, L.P., a
Delaware limited partnership ("L.P.");
WHEREAS, Archstone, New Garden Residential Trust, a wholly-owned
subsidiary of Archstone and a Maryland real estate investment trust ("New
Archstone"), Xxxxx and L.P. have entered into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), which provides for New
Archstone to create a wholly owned subsidiary ("Archstone Merger Sub"), for
Archstone Merger Sub to merge with and into Archstone with Archstone surviving
as a wholly owned subsidiary of New Archstone, for the merger of Xxxxx with and
into New Archstone, and for the merger of L.P. into Archstone, all such
transactions on the terms and subject to the conditions set forth in the Merger
Agreement (all such transactions collectively referred to as the "Merger");
WHEREAS, the Shareholder desires to facilitate the consummation of the
Merger, and for such purpose the Shareholder has agreed to vote all of the
shares of the Common Stock and Units, as applicable, owned by the Shareholder as
of the date hereof and any shares or Units acquired by Shareholder after the
date hereof (all such shares of Common Stock and Units are collectively referred
to as the "Securities") as provided in this Agreement; and
WHEREAS, as a condition of Archstone to enter into the Merger
Agreement, it is a requirement of the Merger Agreement that the Shareholder
enters into this Agreement.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Agreement to Vote.
(a) At such time as Xxxxx and/or L.P. conducts a meeting of,
solicits written consents from, or otherwise seeks a vote of, its
shareholders and/or limited partners for the purpose of approving the
Merger or any of the
transactions contemplated by the Merger, the Shareholder agrees, subject to
Section 1(d) below, to vote all of the Securities, as applicable,
beneficially owed by her or with respect to which she exercises voting
power (directly or indirectly) in favor of the Merger and all other actions
contemplated by the Merger Agreement or otherwise necessary or desirable
for the consummation of the Merger. If Xxxxx and/or L.P. conducts a meeting
of, solicits written consents from, or otherwise seeks a vote of, its
shareholders and/or limited partners with respect to any Acquisition Event
(as defined below) or any other matter which may contradict or conflict
with any provision of this Agreement or the Merger Agreement or may make it
more difficult or less desirable for Archstone to consummate the Merger,
then the Shareholder further agrees, subject to Section 1(c) below, to vote
her Securities, as applicable, in the manner most favorable to the
consummation of the Merger and the transactions contemplated by the Merger
Agreement.
(b) When used herein, the term "Acquisition Event" means the earliest
to occur of any of the following: (i) a merger, consolidation, business
combination, reorganization, recapitalization, liquidation, dissolution or
similar transaction; (ii) a sale, acquisition, tender offer, exchange offer
(or the filing of a registration statement under the Securities Act in
connection with such an exchange offer), share exchange or other
transaction or series of related transactions, that, if consummated, would
result in the issuance of securities representing, or the sale, exchange or
transfer of, 15% or more of the outstanding voting equity securities of
Xxxxx and or outstanding partnership interests of L.P. (including, without
limitation, partnership interests and units), except an underwritten public
offering of Xxxxx Common Stock for cash; or (iii) a sale, lease, exchange,
mortgage, pledge, transfer or other disposition (collectively, a
"Transfer") of any assets of Xxxxx and/or L.P. in one or a series of
related transactions that, if consummated, would result in the Transfer of
more than 15% of the assets of Xxxxx and/or L.P.; other than the Merger.
(c) Notwithstanding any other provision of this Agreement, the
Shareholder may terminate this Agreement and be released from all
obligations to vote her Securities in accordance with the provisions of
this Agreement in the event the Merger Agreement is terminated.
(d) Subject to the terms and conditions of this Agreement, prior to
the Effective Time (as defined in the Merger Agreement), (i) Shareholder
shall not, directly or indirectly, (A) initiate, solicit or encourage any
inquiries or the making or implementation of any proposal or offer
(including, without limitation, any proposal or offer with respect to an
Acquisition Event or (B) engage in any negotiations concerning, or provide
any confidential information or data to, or have any discussions with, any
person relating to
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an Acquisition Event, or otherwise facilitate any effort or attempt to make
or implement an Acquisition Event, and (ii) Shareholder will notify
Archstone immediately if any such inquiries or proposals are received by,
any such information is requested from, or any such negotiations or
discussions are sought to be initiated or continued with SRW and/or L.P.;
provided; however, that the foregoing shall not prevent any discussion or
other communications between Archstone and Shareholder.
2. Waiver of Dissenters' Rights. The Shareholder hereby agrees to
waive any dissenters' rights which may be available under applicable Maryland or
Delaware law in connection with the Merger Agreement and the Merger.
3. Representations, Warranties and Covenants of Shareholder. The
Shareholder represents and warrants to, and agrees with, Archstone that:
(a) this Agreement has been duly executed and delivered by the
Shareholder and constitutes a valid and legally binding obligation of the
Shareholder enforceable in accordance with its terms subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity;
(b) the Shareholder is not subject to or obligated under any provision
of (i) any contract, (ii) any license, franchise or permit or (iii) any
law, regulation, order, judgment or decree that would be breached or
violated by the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby, which breach or
violation would materially and adversely affect the Shareholder's ability
to perform any of her obligations under this Agreement;
(c) no authorization, consent or approval of, or any filing with, any
public body or authority is necessary for consummation by the Shareholder
of the transactions contemplated by this Agreement, other than where the
failure to make such filings or obtain such authorizations, consents or
approvals would not materially and adversely affect the Shareholder's
ability to perform her obligations under this Agreement;
(d) as of the date of this Agreement, the Securities beneficially
owned by the Shareholder consist of the shares of Common Stock and the
Units set forth on Schedule 1;
(e) on the date hereof the Shareholder has, and the Shareholder will
have at all times up to the termination of this Agreement or the earlier
purchase by Archstone of her Shares, the unrestricted power to vote her
Securities, as applicable; and
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(f) the Shareholder will not sell, transfer, hypothecate, pledge,
encumber or otherwise dispose of any of her Securities or any interests
therein, or grant any option or other right with respect thereto, without
the prior written consent of Archstone; provided, however, that nothing
herein shall prevent (i) the sale, transfer, hypothecation, pledge,
encumbrance, or other disposition of any of such Securities, provided that
the purchaser, transferee, or pledgee thereof agrees in writing, prior to
such sale, transfer, hypothecation, pledge, encumbrance or other
disposition, to be bound by the terms of this Agreement or (ii) the
continuance of current pledges of the Securities in effect on the date
hereof.
4. Expenses. Each party hereto will pay its own expenses incurred in
connection with this Agreement.
5. Amendment; Assignment. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by Archstone and the Shareholder. Archstone may not
assign any of its rights or obligations under this Agreement without the prior
written consent of the Shareholder. The Shareholder may not assign any of its
rights or obligations under this Agreement without the prior written consent of
Archstone.
6. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given upon (a) confirmation of a receipt of a
facsimile transmission, (b) confirmed delivery by an overnight courier or when
delivered by hand, or (c) confirmation of receipt when sent by certified or
registered mail, postage prepaid, addressed to the applicable parties as
follows:
If to the Shareholder:
[insert name and address of Shareholder]
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No.: (000) 000-0000
Attention: J. Xxxxxx Xxxxxxx, Xx.
Xxxxx Xxxxxxxxx
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If to Archstone:
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telephone:
Facsimile No.:
Attention
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
or to such other address as the party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
7. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but which together shall
constitute one and the same document.
8. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland (without giving effect to
the provisions thereof relating to conflicts of law).
9. Binding Effect. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by the heirs, personal representatives,
successors and permitted assigns of the parties hereto. Nothing expressed or
referred to in this Agreement is intended or shall be construed to give any
person other than the parties to this Agreement, or their respective heirs,
personal representatives, successors or assigns, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
10. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
among the parties hereto with respect to the subject matter hereof.
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11. Term. This Agreement shall immediately terminate upon the
earlier of either (a) the Effective Time (as defined in the Merger Agreement),
or (b) the date of termination of the Merger Agreement. None of the
representations, warranties, covenants or agreements in this Agreement shall
survive the termination of this Agreement.
12. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction 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.
13. Further Assurances. The Shareholder will, upon the request of
Archstone, execute and deliver such documents and take such action deemed by
Archstone to be reasonably necessary to effectuate the purposes of this
Agreement
14. Remedies. The Shareholder agrees that, for any violation of this
Agreement, Archstone shall have the right to seek equitable relief in any court
of competent jurisdiction to require that the Shareholder comply with the terms
of this Agreement.
15. Shareholder Capacity.
The Shareholder has executed this Agreement solely in his capacity as
a securityholder of SRW or L.P. and not in his capacity as an officer, director,
employee or manager of SRW or L.P. Without limiting the foregoing, nothing in
this Agreement shall limit or affect any actions taken by the Shareholder in his
capacity as an officer, director, employee or manager of SRW or L.P. in
connection with the exercise of SRW's or L.P.'s rights under the Merger
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement to be duly executed as of the day and year first above written.
ARCHSTONE COMMUNITIES TRUST
By:_________________________
Name:____________________
Title:___________________
_________________________
[insert name of shareholder]
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SCHEDULE 1
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Number of Shares of Common Stock Number of Units
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[insert numbers from attached Exhibit A]
EXHIBIT A
The following directors of Xxxxxxx X. Xxxxx Residential Realty, Inc. have
executed the Voting Agreement and own the number of shares of common stock of
Xxxxxxx X. Xxxxx Residential Realty, Inc. and number of units of Xxxxxxx X.
Xxxxx Residential Realty, L.P. set forth next to their name:
Name Number of Shares Number of Units
---- ---------------- ---------------
Xxxxxx X. Xxxxxxx, Xx. 66,153 26,000
Xxxxxxx X. Xxxx 5,665 0
Xxxxx X. Xxxxx, Xx. 118 0
Xxxxxx X. Xxxxx 144,408/1/ 1,975,056/2/
R. Xxxxxxx XxXxxxxxxx 264 0
Xxxxxx X. Xxxxx 25,738/3/ 2,018,635/4/
Xxxxx Xxxxxx Xxxxxxxx 118 0
/1/ Includes 52,185 shares held by Xxxxxx Xxxxx'x spouse, Xxxxxx Xxxxx.
/2/ The total number of Units includes 62,392 Units held by Xxxxxx Xxxxx, 34,806
Units held by Xxxxxx Xxxxx and 1,877,858 Units held by corporations wholly-owned
by Xxxxxx Xxxxx and Xxxxxx Xxxxx and/or their spouses.
/3/ Includes 18,150 shares held by Xxxxxx Xxxxx'x spouse, Xxxxxxx Xxxxx.
/4/ The total number of Units includes 95,771 Units held by Xxxxxx Xxxxx, 45,006
Units held by Xxxxxxx Xxxxx and 1,877,858 Units held by corporations
wholly-owned by Xxxxxx Xxxxx and Xxxxxx X. Xxxxx and/or their spouses.
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