EXHIBIT 99.1
FORM OF IRT VOTING AGREEMENT
VOTING AGREEMENT dated October 28, 2002, by and among Equity One, Inc.,
a Maryland corporation (the "Company") and certain shareholders (each, a
"Shareholder" and, collectively, the "Shareholders") of IRT Property Company, a
Georgia corporation ("IRT").
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, each Shareholder is the record and
beneficial owner of the number of shares of IRT Common Stock and/or shares of
Company Common Stock, set forth on the signature page hereof beneath such
Shareholder's name (with respect to each Shareholder, together with any shares
of IRT Common Stock or Company Common Stock acquired after the date hereof,
whether upon the exercise of warrants, options, conversion of convertible
securities or otherwise, such 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 Shareholders agree, and
in order to induce the Company to enter into the Merger Agreement, the
Shareholders have 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. Each Shareholder, severally and not
jointly, hereby agrees that, from and after the date hereof and until this
Agreement shall have been terminated in accordance with Article 4 hereof, 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, such
Shareholder will vote (or cause to be voted) such Shareholder's Shares: (a) in
favor of the approval and adoption of the IRT Shareholder Approval or the
Company Stockholder Approvals, as applicable; (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 Shareholders
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. Such 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. Each Shareholder acknowledges
receipt and review of a copy of the Merger Agreement.
Section 1.2 Irrevocable Proxy; Appointment of Proxy. If any
Shareholder fails to comply with the provisions of Section 1.1 (as determined by
the Company in its sole discretion), such Shareholder hereby agrees that such
failure shall result, without any further action by such Shareholder, in the
irrevocable appointment of the Company, and any other individual who shall be
hereafter designated by the Company, as such 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 or the Company, as applicable (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 A SHAREHOLDER MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS
AGREEMENT. Each Shareholder hereby revokes all other proxies and powers of
attorney with respect to such 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 any Shareholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of any
Shareholder and any obligation of the Shareholder under this Agreement shall be
binding upon the heirs, personal representatives, successors and assigns of such
Shareholder.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder, severally and not jointly, hereby represents and
warrants to the Company as follows:
Section 2.1 Authority. Such Shareholder has all necessary power,
authority and capacity to execute and deliver this Agreement, to perform such
Shareholder's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by such Shareholder
of this Agreement and the consummation by such Shareholder of the transactions
contemplated hereby have been duly and validly authorized by all requisite
corporate, partnership, limited liability company or other action, and no other
actions or proceedings on the part of such Shareholder are necessary to
authorize the execution and delivery by such Shareholder of this Agreement, and
the consummation by such Shareholder of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by such Shareholder and
constitutes a legal, valid and binding obligation of such Shareholder,
enforceable against such 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.
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Section 2.2 No Conflict. Except as set forth on Schedule A, the
execution and delivery of this Agreement by such Shareholder do not, and the
performance of this Agreement by such Shareholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any third party 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
A, 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). Except
as set forth on Schedule A, such Shareholder has sole voting power and sole
power of disposition with respect to all of the Shares owned by such Shareholder
and none of the Shares of such 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 any Shareholder that is an individual
constitute community property.
ARTICLE 3.
COVENANTS OF THE SHAREHOLDERS
Section 3.1 No Disposition of Shares. Each Shareholder, severally
and not jointly, hereby agrees that, except as contemplated by the Merger
Agreement and this Agreement, such 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 such
Shareholder's voting rights with respect to, any of such 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 Shareholders' Meeting or the Company Stockholders' Meeting, as the case may
be, 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 such
Shareholder herein untrue or incorrect in any material respect or have the
effect of preventing or disabling such 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. Each Shareholder
hereby irrevocably waives any rights of appraisal or rights to dissent from the
Merger that the Shareholder may have.
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Section 3.3 No Solicitation of Transactions. Each Shareholder,
severally and not jointly, 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, such Shareholder will not and will not
permit any investment banker, counsel or representative of the Shareholder, on
behalf of the Shareholder, to, 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 in each case to the
extent that the Shareholder is otherwise permitted by the Merger Agreement. Each
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. Each
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
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.
ARTICLE 5. MISCELLANEOUS
Section 5.1 Stop Transfer Orders and Legends. Each 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 Shareholders' 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
Shareholders' Shares to be inscribed with an appropriate legend that reflects
this Agreement and the covenants contained herein.
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.
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Section 5.3 Further Assurances. Each 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. Each Shareholder recognizes and
acknowledges that he, she or it 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, she or it 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
confidential and nonpublic 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 supersedes 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 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
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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 Shareholders 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.
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
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the drafting party shall not be applicable either to this Agreement or such
other documents and instruments.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
EQUITY ONE, INC.
By:
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Xxxxxx X. Xxxxxxx
Chief Financial Officer
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IRT VOTING AGREEMENT SIGNATURE PAGE
By its execution and delivery of this signature page, the undersigned
Shareholder hereby joins in and agrees to be bound by the terms and conditions
of the IRT Voting Agreement dated as of October 28, 2002 (the "IRT VOTING
AGREEMENT") by and among Equity One, Inc. and the Shareholders (as defined
therein) as a "Shareholder" thereunder, and authorizes this signature page to be
attached to the IRT Voting Agreement or counterparts thereof.
NAME OF SHAREHOLDER
-----------------------------------------
By:
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Name:
---------------------------------
Title:
--------------------------------
Number of IRT Shares: _________
Agreed to and accepted this
28th day of October, 2002
EQUITY ONE, INC.
By:
----------------------------------------
Xxxxxx X. Xxxxxxx
Chief Financial Officer
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