EXHIBIT 10.2
VOTING AGREEMENT
XXXXXX X. XXXXXX
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into as of
October 25, 2004 by and among Cornerstone Realty Income Trust, Inc., a Virginia
corporation ("CORNERSTONE") and Xxxxxx X. Xxxxxx (such person, together with the
other signatories hereto (other than Cornerstone), individually and
collectively, the "COLONIAL SECURITYHOLDER").
WHEREAS, Cornerstone and Colonial Properties Trust, an Alabama real
estate investment trust ("COLONIAL") are entering into an Agreement and Plan of
Merger dated as of the date hereof (the "MERGER AGREEMENT"), pursuant to which
Cornerstone will be merged with and into a wholly owned subsidiary of Colonial
("COLONIAL MERGER SUB") (the "MERGER"), with Colonial Merger Sub as the survivor
of the Merger (all capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement);
WHEREAS, the Colonial Securityholder is the beneficial and record
owner of issued and outstanding shares of beneficial interest, $0.01 par value
per share, of Colonial (such shares, together with any shares acquired
hereafter, the "COLONIAL COMMON SHARES") as more particularly described on
Schedule 1 hereto;
WHEREAS, the Colonial Securityholder is the beneficial and record
owner of options to purchase Colonial Common Shares (such options, together with
any options acquired hereafter, the "COLONIAL OPTIONS"), as more particularly
described on Schedule 1 hereto; and
WHEREAS, in accordance with the Recitals of the Merger Agreement,
the Colonial Securityholder desires to execute and deliver this Agreement solely
in its capacity as a holder of Colonial Common Shares.
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 hereto agree, intending to be legally bound hereby, as
follows:
SECTION 1. DISPOSITION OF COLONIAL COMMON SHARES
During the period from the date hereof through the earlier of (i)
the date on which the Merger is consummated or (ii) the date on which the Merger
Agreement is terminated according to its terms (such period hereinafter referred
to
as the "TERM"), the Colonial Securityholder shall not, directly or indirectly,
and shall cause each record holder not to, directly or indirectly, (a) sell,
transfer, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other agreement or understanding with respect to the sale,
transfer, pledge, encumbrance, assignment or other disposition of, any Colonial
Common Shares or Colonial Options, (b) grant any proxies for any Colonial Common
Shares with respect to any matters described in paragraph (a) of Section 2
hereof (other than a proxy directing the holder thereof to vote the Colonial
Common Shares in a manner required by paragraph (a) of Section 2 hereof), (c)
deposit any Colonial Common Shares into a voting trust or enter into a voting
agreement with respect to any Colonial Common Shares with respect to any of the
matters described in paragraph (a) of Section 2 hereof, or tender any Colonial
Common Shares in a transaction other than a transaction contemplated by the
Merger Agreement, or (d) take any action which is intended to have the effect of
preventing or disabling the Colonial Securityholder from performing its
obligations under this Agreement; provided, however, that nothing herein shall
prevent the sale, transfer, pledge, encumbrance, assignment or other disposition
of any of such Colonial Common Shares, provided that the purchaser, transferee,
pledgee or assignee thereof agrees in writing, prior to such sale, transfer,
pledge, encumbrance, assignment or other disposition, to be bound by the terms
of this Agreement.
SECTION 2. VOTING
(a) During the Term, the Colonial Securityholder shall cast or cause
to be cast all votes attributable to the Colonial Common Shares, at any annual
or special meeting of shareholders of Colonial, including any adjournments or
postponements thereof, or in connection with any written consent or other vote
of Colonial shareholders, (i) in favor of the matters constituting the Colonial
Shareholder Approval and (ii) against approval or adoption of any action or
agreement (other than the Merger Agreement or the transactions contemplated
thereby) made or taken in opposition to or in competition with the Merger.
(b) The Colonial Securityholder will retain the right to vote its
Colonial Common Shares, in its sole discretion, on all matters other than those
described in paragraph (a) of this Section 2, and the Colonial Securityholder
may grant proxies and enter into voting agreements or voting trusts for its
Colonial Common Shares in respect of such other matters.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COLONIAL SECURITYHOLDER
The Colonial Securityholder represents and warrants to Cornerstone
and Cornerstone Partnership as follows:
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(a) The Colonial Securityholder has the legal capacity, power,
authority and right (contractual or otherwise) to execute and deliver this
Agreement and to perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by the
Colonial Securityholder and constitutes a valid and binding obligation of the
Colonial Securityholder 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.
(c) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
violate any court order, judgment or decree applicable to the Colonial
Securityholder, or conflict with or result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under any contract or agreement to which the Colonial Securityholder is
a party or by which the Colonial Securityholder is bound or affected, which
conflict, violation, breach or default would materially and adversely affect the
Colonial Securityholder's ability to perform any of its obligations under this
Agreement.
(d) Subject to any required filings under the Securities Exchange
Act of 1934, as amended (the "1934 ACT"), the Colonial Securityholder is not
required to give any notice or make any report or other filing with any
governmental authority in connection with the execution or delivery of this
Agreement or the performance of the Colonial Securityholder's obligations
hereunder and no waiver, consent, approval or authorization of any governmental
or regulatory authority or any other person or entity is required to be obtained
by the Colonial Securityholder for the performance of the Colonial
Securityholder's obligations hereunder, other than where the failure to make
such filings, give such notices or obtain such waivers, consents, approvals or
authorizations would not materially and adversely affect the Colonial
Securityholder's ability to perform its obligations under this Agreement.
(e) Colonial Common Shares and Colonial Options set forth opposite
the name of the Colonial Securityholder on Schedule 1 hereto are the only
Colonial Common Shares and Colonial Options owned beneficially or of record by
the Colonial Securityholder or over which it exercises voting control.
SECTION 4. FURTHER ASSURANCES
During the Term, the Colonial Securityholder shall, upon the request
of Cornerstone, execute and deliver such documents and take such actions as
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Cornerstone may reasonably deem necessary to effectuate the purposes of this
Agreement.
SECTION 5. DESCRIPTIVE HEADINGS
The descriptive headings herein are inserted for convenience only
and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
SECTION 6. COUNTERPARTS
This Agreement may be executed in counterparts, each of which when
so executed and delivered shall be an original, but all of such counterparts
shall together constitute one and the same instrument.
SECTION 7. ENTIRE AGREEMENT; ASSIGNMENT
This Agreement (i) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties hereto with respect to the subject matter hereof and (ii) shall not be
assigned by the Colonial Securityholder, by operation of law or otherwise.
SECTION 8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Alabama without regard to the principles of
conflicts of laws thereof.
(b) The Colonial Securityholder hereby submits and consents to
non-exclusive personal jurisdiction in any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby in a federal court
located in the State of Alabama or in an Alabama state court. Any process,
summons, notice or document delivered by mail to the address set forth on
Schedule 1 hereto shall be effective service of process for any action, suit or
proceeding in any Alabama state court or any federal court located in the State
of Alabama with respect to any matters to which the Colonial Securityholder has
submitted to jurisdiction in this Section 8. The Colonial Securityholder
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in any Alabama state court or any federal court located in
the State of Alabama, and hereby irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court
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has been brought in an inconvenient forum. THE COLONIAL SECURITYHOLDER
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT.
SECTION 9. SPECIFIC PERFORMANCE
The parties hereto agree that if any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached, irreparable damage would occur, no adequate remedy at law
would exist and damages would be difficult to determine, and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
SECTION 10. PARTIES IN INTEREST
This Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person or persons any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
SECTION 11. AMENDMENT; WAIVERS
This Agreement shall not be amended, altered or modified except by
an instrument in writing duly executed by each of the parties hereto. No delay
or failure on the part of any party hereto in exercising any right, power or
privilege under this Agreement shall impair any such right, power or privilege
or be construed as a waiver of any default or any acquiescence thereto. No
single or partial exercise of any such right, power or privilege shall preclude
the further exercise of such right, power or privilege, or the exercise of any
other right, power or privilege. No waiver shall be valid against any party
hereto, unless made in writing and signed by the party against whom enforcement
of such waiver is sought, and then only to the extent expressly specified
therein.
SECTION 12. CAPACITY OF COLONIAL SECURITYHOLDER
The Colonial Securityholder has executed this Agreement solely in
its capacity as a securityholder of Colonial and not in its capacity as an
officer, trustee or employee of Colonial. Without limiting the foregoing,
nothing in this Agreement shall limit or affect any actions taken by the
Colonial Securityholder in its capacity as an officer, trustee or employee of
Colonial in connection with the exercise of Colonial rights under the Merger
Agreement.
SECTION 13. TERMINATION
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This Agreement shall terminate immediately upon the earlier of (i)
the date on which the Merger Agreement is terminated in accordance with its
terms or (ii) the consummation of the Merger. None of the representations,
warranties, covenants or agreements in this Agreement shall survive the
termination of this Agreement; provided, however, that nothing contained herein
shall release the Colonial Securityholder from any liability arising from any
breach of any of its representations, warranties, covenants or agreements in
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Voting Agreement, or have caused this Voting Agreement to be duly
executed and delivered in their names and on their behalf, as of the date first
written above.
CORNERSTONE REALTY INCOME TRUST, INC.
By: /s/ Xxxxx X Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman & CEO
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Equity Partners Joint Venture
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Agent
Xxxxxx X. Xxxxxx Irrevocable
Children's Trust
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Trustee
Colonial Commercial Investments, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman
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