Exhibit 99.2
VOTING AGREEMENT
This VOTING AGREEMENT is entered into on May 3, 2001, by and between
Xxxxxxx X. Xxxxx Residential Realty, Inc., a Maryland corporation ("Xxxxx"), and
[See Exhibit A for list of trustees who have executed the agreement]
("Shareholder").
WHEREAS, the Shareholder is the beneficial owner of common shares of
beneficial interest, $1.00 par value per share (the "Common Shares"), of
Archstone Communities Trust, a Maryland real estate investment trust
("Archstone");
WHEREAS, Archstone, New Garden Residential Trust, a Maryland real estate
investment trust ("New Archstone"), Xxxxx and Xxxxxxx X. Xxxxx Residential
Realty, L.P., a Delaware limited partnership ("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 ("Archstsone 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
Common Shares owned by the Shareholder as of the date hereof and any shares
acquired by Shareholder after the date hereof, of either Archstone or New
Archstone (all such Common Shares are collectively referred to as the
"Securities") as provided in this Agreement; and
WHEREAS, as a condition of Xxxxx 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 Archstone 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(b) below, to vote all of the Securities, as applicable,
beneficially owned by him or with respect to which he 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.
(b) Notwithstanding any other provision of this Agreement, the
Shareholder may terminate this Agreement and be released from all
obligations to vote his Securities in accordance with the provisions of
this Agreement in the event the Merger Agreement is terminated.
2. Waiver of Dissenters' Rights. The Shareholder hereby agrees to waive
any dissenters' rights which may be available under applicable Maryland law in
connection with the Merger and the Merger Agreement.
3. Representations, Warranties and Covenants of Shareholder. The
Shareholder represents and warrants to, and agrees with, Xxxxx 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 his 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 his obligations under this Agreement;
(d) as of the date of this Agreement, the Securities beneficially
owned by the Shareholder consist of the Common Shares 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, the unrestricted
power to vote his Securities, as applicable; and
(f) the Shareholder will not sell, transfer, hypothecate, pledge,
encumber or otherwise dispose of any of his Securities or any interests
therein, or grant any option or other right with respect thereto, without
the prior written consent of Xxxxx 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
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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 Xxxxx and the Shareholder. Xxxxx 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 Xxxxx.
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 of Shareholder]
c/o Archstone Communities Trust
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
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If to Xxxxx:
Xxxxxxx X. Xxxxx Residential Realty, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx #0
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
J. Xxxxxx Xxxxxxx, Xx.
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 parities hereto with respect to the subject matter hereof.
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.
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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 Xxxxx,
execute and deliver such documents and take such action deemed by Xxxxx to be
reasonably necessary to effectuate the purposes of this Agreement.
14. Remedies. The Shareholder agrees that, for any violation of this
Agreement, Xxxxx 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 Archstone or New Archstone and not
in his capacity as an officer, director, employee or manager of Archstone or New
Archstone without limiting the foregoing, nothing in this Agreement shall limit
or affect any actions taken by the Shareholder in his capacity as an officer,
trustee, employee or manager of Archstone or New Archstone in connection with
the exercise of Archstone's or New Archstone'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.
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.
By:_______________________________
Name:__________________________
Title:_________________________
_________________________________
[insert name of shareholder]
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Schedule 1
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Number of Common Shares Beneficially Owned:
------------------------------------------
[insert number from attached Exhibit A]
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EXHIBIT A
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The following trustees of Archstone Communities Trust have executed the Voting
Agreement and own the number of common shares of Archstone Communities Trust set
forth next to their name:
Name Number of Shares
---- ----------------
Xxxxx X. Xxxxxxxx 38,956
Xxx X. Xxxxxx 18,804
Xxxxx X. Xxxx, III 16,778
Xxxx X. Xxxxxxx 15,500
Xxxx X. Xxxxxxxxxx 59,250
R. Xxxx Xxxxxxx 340,634
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