EXHIBIT 99.3
VOTING AGREEMENT
VOTING AGREEMENT dated October 28 2002, by and among Equity One, Inc.,
a Maryland corporation (the "Company"), and E. Xxxxxxx Xxxxxxx (the
"Shareholder"), in his capacity as a shareholder of IRT Property Company, a
Georgia corporation.
WHEREAS, contemporaneously herewith, IRT and the Company are entering
into an Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"; capitalized terms being used but not otherwise defined herein shall
have the meanings given thereto in the Merger Agreement), that provides, among
other things, that IRT will merge with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Shareholder is the record and
beneficial owner of the number of shares of IRT Common Stock, set forth on the
signature page hereof beneath the Shareholder's name (together with any shares
of IRT Common Stock acquired after the date hereof, whether upon the exercise
of warrants, options, conversion of convertible securities or otherwise, the
Shareholder's "Shares"); and
WHEREAS, as a condition to the willingness of the Company to enter
into the Merger Agreement, the Company has requested that the Shareholder
agree, and in order to induce the Company to enter into the Merger Agreement,
the Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
ARTICLE 1.
VOTING AGREEMENT
Section 1.1 Voting Agreement. The Shareholder hereby agrees that,
from and after the date hereof and until this Agreement shall have been
terminated in accordance with Article 5, at any meeting of the shareholders of
IRT or the Company, however called, and in any action by consent of the
shareholders of IRT or the Company upon which the Merger and related proposals
are to be considered, adopted or approved, the Shareholder will vote (or cause
to be voted) the Shareholder's Shares: (a) in favor of the approval and
adoption of the IRT Shareholder Approval; (b) against any action, proposal,
agreement, transaction or matter that, if taken, executed or consummated by
IRT, would result in a breach of any covenant, obligation, agreement,
representation or warranty of IRT contained in the Merger Agreement or of the
Shareholder contained in this Agreement; and (c) against any action, proposal,
agreement or transaction, including, but not limited to, any Acquisition
Proposal, that, if taken, executed or consummated by IRT, could result in any
of the conditions to the Company's obligations under the Merger Agreement not
being fulfilled or that is intended, or could reasonably be expected, to
impede, interfere or be inconsistent with, delay, postpone, discourage or
adversely affect the consummation of the Merger or the transactions
contemplated by the Merger Agreement or this Agreement. The Shareholder shall
not enter into any agreement, understanding or arrangement with any person or
entity to vote such Shares or give instructions in any manner inconsistent with
this Section 1.1. The Shareholder acknowledges receipt and review of a copy of
the Merger Agreement.
Section 1.2 Irrevocable Proxy; Appointment of Proxy. If the
Shareholder fails to comply with the provisions of Section 1.1 (as determined
by the Company in its sole discretion), the Shareholder hereby agrees that such
failure shall result, without any further action by the Shareholder, in the
irrevocable appointment of the Company, and any other individual who shall be
hereafter designated by the Company, as the Shareholder's attorney and proxy,
with full power of substitution, to vote and otherwise act (by written consent
or otherwise) with respect to such Shares at any meeting of the shareholders of
IRT (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise, on the matters
and in the manner specified in Section 1.1. THIS PROXY AND POWER OF ATTORNEY
ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM THE
SHAREHOLDER MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS AGREEMENT. The
Shareholder hereby revokes all other proxies and powers of attorney with
respect to the Shareholder's Shares that may have heretofore been appointed or
granted, and no subsequent proxy or power of attorney shall be given or written
consent executed (and if given or executed, shall not be effective) by the
Shareholder with respect thereto. All authority herein conferred or agreed to
be conferred shall survive the death or incapacity of the Shareholder and any
obligation of the Shareholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of the Shareholder.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholder hereby represents and warrants to the Company as
follows:
Section 2.1 Authority. The Shareholder has all necessary power,
authority and capacity to execute and deliver this Agreement, to perform the
Shareholder's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Shareholder
of this Agreement and the consummation by the Shareholder of the transactions
contemplated hereby have been duly and validly authorized, and no other actions
or proceedings on the part of the Shareholder are necessary to authorize the
execution and delivery by the Shareholder of this Agreement, and the
consummation by the Shareholder of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Shareholder and
constitutes a legal, valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms, except that
(i) such enforcement may be subject to applicable bankruptcy, insolvency or
other laws, now or hereafter in effect, affecting creditors' rights generally,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
Section 2.2 No Conflict. The execution and delivery of this
Agreement by the Shareholder do not, and the performance of this Agreement by
the Shareholder shall not, require any consent, approval, authorization or
permit of, or filing with or notification to, any third party
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or governmental authority, domestic or foreign, except for applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended.
Section 2.3 Brokers. No broker, investment banker, financial
adviser or other Person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of the Shareholder.
Section 2.4 Ownership of Shares. Except as set forth on Schedule
2.4, such Shareholder is the record, legal and beneficial owner of that number
of Shares set forth on the signature page hereto opposite such Shareholder's
name, free and clear of any lien and any other limitation or restriction
(including any restriction on the right to vote or otherwise dispose of the
Shares). The Shareholder has sole voting power and sole power of disposition
with respect to all of the Shares owned by the Shareholder and none of the
Shares of the Shareholder is subject to any voting trust or other agreement or
arrangement with respect to the voting of such Shares (including without
limitation any prenuptial agreement, divorce settlement or similar agreement).
None of the Shares of the Shareholder constitute community property.
ARTICLE 3.
COVENANTS OF THE SHAREHOLDERS
Section 3.1 No Disposition of Shares. The Shareholder hereby
agrees that, except as contemplated by the Merger Agreement and this Agreement,
the Shareholder shall not (i) sell, transfer, tender, assign, contribute to the
capital of any entity, give or otherwise dispose of, grant a proxy or power of
attorney with respect to, deposit into any voting trust, or create or permit to
exist any direct limitation on the Shareholder's voting rights with respect to,
any of the Shareholder's Shares (or agree or consent to, or offer to do, or
grant any option or other right or interest with respect to, any of the
foregoing) prior to the record date for the IRT Shareholder's Meeting unless
the transferee or assignee of such voting rights grants an irrevocable proxy to
the Company as contemplated by Section 1.2, (ii) grant any proxies or powers of
attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares, or any interest in any of the foregoing,
except this Agreement and proxies executed in favor of the Merger and the
transactions and proposals contemplated by the Merger Agreement; (iii) take any
action that would make any representation or warranty of the Shareholder herein
untrue or incorrect in any material respect or have the effect of preventing or
disabling the Shareholder from performing his, her or its obligations, or (iv)
directly or indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence of any of
the foregoing.
Section 3.2 Appraisal or Dissenters' Rights. The Shareholder
hereby irrevocably waives any rights of appraisal or rights to dissent from the
Merger that the Shareholder may have.
Section 3.3 No Solicitation of Transactions. The Shareholder
agrees that between (x) the date of this Agreement and (y) the earlier of the
Effective Time of the Merger or the date of termination of the Merger
Agreement, the Shareholder will not and will not permit any investment banker,
counsel or representative of the Shareholder, on behalf of the Shareholder, to,
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directly or indirectly, (a) solicit, initiate, consider, encourage or accept
any other proposals or offers from any person constituting an Acquisition
Proposal, or (b) participate in any discussions, conversations, negotiations
and other communications regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way, assist or
participate in, facilitate or encourage any effort or attempt by any other
person to make an Acquisition Proposal, except to the extent permitted by the
Merger Agreement. The Shareholder immediately shall cease and cause to be
terminated all existing discussions, conversations, negotiations and other
communications with any persons conducted heretofore with respect to any of the
foregoing. The Shareholder shall notify the Company promptly if any such
proposal or offer, or any inquiry or other contact with any person with respect
thereto, is made and shall, in any such notice to the Company, indicate in
reasonable detail the identity of the person making such proposal, offer,
inquiry or contact and the terms and conditions of such proposal, offer,
inquiry or other contact, except with respect to proposals, offers, inquiries
or other contacts by or with the interested parties.
ARTICLE 4.
TERMINATION
Section 4.1 Automatic Termination. This Agreement shall
terminate, and no party shall have any rights or obligations hereunder and this
Agreement shall (other than the confidentiality provisions of Section 5.4)
become null and void and have no further effect upon the earliest of: (a) the
Effective Time of the Merger; (b) the date of termination of the Merger
Agreement in accordance with its terms; and (c) by the written mutual consent
of the parties hereto. Nothing in this Article 4 shall relieve any party of
liability for any breach of this Agreement.
Section 4.2 Termination Upon Withdrawal of IRT Board
Recommendation. The Shareholder shall also have the right at the IRT
Shareholder's Meeting to terminate this Agreement, and upon such termination
the Shareholder shall not have, nor shall the Company have in respect of the
Shareholder, any rights or obligations hereunder (other than the
confidentiality provisions of Section 5.4), if, at the time of such IRT
Shareholder's Meeting, the IRT Board shall have properly withdrawn, qualified
or modified its approval of the Merger Agreement or the Merger or its
recommendation that the IRT shareholders vote in favor of the IRT Shareholder
Approval pursuant to 5.1(c)(ii) of the Merger Agreement.
ARTICLE 5. MISCELLANEOUS
Section 5.1 Stop Transfer Orders and Legends. The Shareholder
agrees and understands that in order to enforce the transfer restrictions
contained in this Agreement, each of the Company and IRT, as applicable, (a)
shall direct their respective transfer agents and registrars to enter stop
transfer orders and to not register or cause any third party to register the
transfer of any certificate representing any of the Shareholder's Shares,
unless the transfer is made in compliance with this Agreement, and (b) may
require, if necessary to enforce this Agreement, all certificates representing
any of the Shareholder's Shares to be inscribed with an appropriate legend that
reflects this Agreement and the covenants contained herein.
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Section 5.2 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 5.3 Further Assurances. The Shareholder shall, upon the
request of the Company, execute and deliver all such further documents and
instruments and take all such further action as may be necessary in order to
consummate the transactions contemplated hereby.
Section 5.4 Confidentiality. The Shareholder recognizes and
acknowledges that he or she will have access to certain confidential
information of IRT, the Company or their respective affiliates (collectively,
the "Subject Parties"), as the case may be, pursuant to the Merger Agreement or
the related agreements, documents and transactions. This information, including
the existence and nature of the strategic direction and discussions of the
Subject Parties, is confidential and includes nonpublic information relating to
the Subject Parties. The Securities and Exchange Commission's Regulation FD
allows the Subject Parties to provide this confidential information to the
Shareholder only upon receipt of the Shareholder's agreement to maintain it
strictly confidential. So long as such information remains confidential and
nonpublic, the Shareholder hereby agrees not to use or permit any others to use
such information for any purpose not expressly permitted herein. The
Shareholder further agrees that so long as such information remains
confidential and nonpublic, he shall not communicate or cause any other
person(s) to communicate such information to anyone else or to trade in any of
the Subject Parties' securities or any derivatives thereof in reliance upon
such information or to take any action to affect the trading price of any of
the Subject Parties' securities. The parties to this Agreement hereby
acknowledge and agree that any use of this information for purposes of buying
or selling the Subject Parties' securities or any derivatives thereof prior to
any public disclosure thereof would violate federal and state securities laws
restricting the use or disclosure of inside information.
Section 5.5 Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof,
and supersede all prior and contemporaneous agreements and understandings, both
oral and written, among the parties hereto with respect to the subject matter
hereof.
Section 5.6 Amendment. This Agreement may not be amended except
by an instrument in writing signed by all the parties hereto. Any party to this
Agreement may (a) extend the time for the performance of any of the obligations
of the other party(s) owing to such extending party, (b) waive any inaccuracies
in the representations and warranties of the other party(s) for the benefit of
such waiving party contained herein or in any document delivered by the other
party(s) pursuant hereto, or (c) waive compliance with any of the agreements or
conditions of the other party(S) contained herein. Any such extension or waiver
shall be valid only if set forth in an instrument in writing signed by the
party to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of the
same term or condition, or a waiver of any other term or condition, of
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this Agreement. The failure of any party to assert any of its rights hereunder
shall not constitute a waiver of any of such rights.
Section 5.7 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, applicable
to contracts executed and performed entirely in such state and without regard
to the conflicts of law principles thereof jurisdiction, except to the extent
that the Maryland General Corporation Law or the Georgia Business Corporation
Code apply to the proxies granted hereby or the Shares of Company Common Stock
or IRT Common Stock, respectively.
Section 5.8 Enforcement. 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 the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in federal court for
the Southern District of New York this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the parties
hereto (a) consents to submit itself (without making such submission exclusive)
to the personal jurisdiction of such federal court in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement and (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from such court.
Section 5.9 Waiver of Jury Trials. THE PARTIES HERETO
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE DOCUMENTS, AGREEMENTS OR TRANSACTIONS
CONTEMPLATED HEREBY.
Section 5.10 Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses, whether or not the
Merger shall is consummated.
Section 5.11 Notices. All notices and other communications
hereunder shall be made and given in accordance with the terms of the Merger
Agreement, with notices to the Shareholder being made in care of IRT.
Section 5.12 No Third Party Beneficiaries. This Agreement shall
be binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Section 5.13 Counterparts. This Agreement may be executed in
counterparts each of which shall be deemed to be an original and all of which,
taken together, shall constitute but one and the same original instrument.
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Section 5.14 Construction. This Agreement and any documents or
instruments delivered pursuant hereto or in connection herewith shall be
construed without regard to the identity of the person who drafted the various
provisions of the same. Each and every provision of this Agreement and such
other documents and instruments shall be construed as though all of the parties
participated equally in the drafting of the same. Consequently, the parties
acknowledge and agree that any rule of construction that a document is to be
construed against the drafting party shall not be applicable either to this
Agreement or such other documents and instruments.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
EQUITY ONE, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Chairman and Chief Executive Officer
SHAREHOLDER
/s/ E. Xxxxxxx Xxxxxxx
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E. Xxxxxxx Xxxxxxx
Shares of IRT Common Stock:
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