Exhibit 99.2
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of October 4, 2002 (this "AGREEMENT"),
by the parties identified on Schedule A hereto (each, a "STOCKHOLDER" and
collectively, the "STOCKHOLDERS"), to and for the benefit of Developers
Diversified Realty Corporation, an Ohio corporation ("PARENT").
W I T N E S S E T H:
WHEREAS, as of the date hereof, each of the Stockholders owns
beneficially the number of shares of common stock, par value $.01 per share (the
"COMPANY COMMON STOCK"), of JDN Realty Corporation, a Maryland corporation (the
"COMPANY"), set forth opposite such Stockholder's name on Schedule A hereto
(such shares, together with (i) any shares of Company Common Stock acquired by
such Stockholder prior to the termination of this Agreement, and (ii) any shares
issued or exchanged with respect to such shares of Company Common Stock upon any
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up or combination of the securities
of the Company, are collectively referred to herein as the "SHARES");
WHEREAS, concurrently with the execution of this Agreement, Parent, DDR
Transitory Sub, Inc., a Maryland corporation and wholly owned subsidiary of
Parent ("MERGER SUB"), and Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "MERGER AGREEMENT"; capitalized terms
used and not otherwise defined herein shall have the respective meanings
assigned to them in the Merger Agreement), pursuant to which, upon the terms and
subject to the conditions thereof, Merger Sub will be merged with and into the
Company (the "MERGER"); and
WHEREAS, as a condition to the willingness of the Company, Parent and
Merger Sub to enter into the Merger Agreement, Parent has requested each of the
Stockholders to agree, and in order to induce Parent to enter into the Merger
Agreement, such Stockholders are willing to agree to vote in favor of adopting
the Merger Agreement and approving the Merger and the other transactions
contemplated by the Merger Agreement, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as follows:
Section 1. VOTING OF SHARES.
(a) Until the termination of this Agreement in accordance with
the terms hereof, each Stockholder hereby agrees that, at the
Stockholders' Meeting of the Company or any other meeting of the
stockholders of the Company, however called, and in any action by
written consent of the stockholders of the Company, each Stockholder
will (i) appear at such meeting or otherwise cause its Shares to be
counted as present thereat for purposes of establishing a quorum, and
(ii) vote all of such Stockholder's Shares (A) in favor of
adoption of the Merger Agreement and approval of the Merger and the
other transactions contemplated by the Merger Agreement, and (B)
against any Acquisition Proposal or any action or agreement that would
reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or which would reasonably be
expected to result in any of the conditions to the Merger Agreement not
being fulfilled. In addition, each Stockholder agrees that it will,
upon request by Parent, furnish written confirmation, in form and
substance reasonably acceptable to Parent, of such Stockholder's vote
in favor of the Merger Agreement and the Merger. Notwithstanding the
foregoing, nothing in this Agreement shall limit or restrict
Stockholder from acting in his capacity as director or officer of the
Company, to the extent applicable, it being understood that this
Agreement shall apply to Stockholder solely in his capacity as a
stockholder of the Company.
(b) In the event that Stockholder fails to satisfy its
obligations under clauses (a)(i) or (a)(ii) above, Stockholder hereby
grants Parent a power of attorney up to and through the termination of
this Agreement to execute and deliver a proxy in the form attached
hereto as Annex A for and on behalf of Stockholder, such power of
attorney, which being coupled with an interest, shall survive death,
disability, bankruptcy, or any other such impediment of Stockholder.
Section 2. TRANSFER OF SHARES. Each Stockholder represents and warrants
that it has no present intention of taking action to, prior to the termination
of this Agreement, and shall not, directly or indirectly, (a) sell, assign,
transfer (including by operation of law), tender or otherwise dispose of any of
the Shares, (b) deposit any of the Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Shares or grant any proxy or
power of attorney with respect thereto which is inconsistent with this
Agreement, or (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect sale, transfer (including by
operation of law) or other disposition of any Shares. Notwithstanding anything
to the contrary in clauses (a) and (c) above, in the case of an individual
Stockholder, such Stockholder may transfer any or all of its Shares; provided,
however, that in any such case, prior to and as a condition to the effectiveness
of such transfer, each person as to which any of such Shares or any interest in
any of such Shares is or may be transferred shall have executed and delivered to
each of Parent and the Company a counterpart to this Agreement pursuant to which
such person shall be bound by all of the terms and provisions of this Agreement.
Section 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Each Stockholder hereby represents, warrants and covenants to Parent with
respect to itself and its ownership of its Shares as follows:
(a) Such Stockholder has all legal capacity to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby.
(b) Such Stockholder is the beneficial owner of its Shares and
will continue to be the beneficial owner of its Shares until the
termination of this Agreement, except as permitted by Section 2 of this
Agreement.
(c) This Agreement has been duly executed and delivered by
such Stockholder.
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(d) This Agreement constitutes the valid and binding agreement
of such Stockholder, enforceable against such Stockholder in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally, by general equity
principles, (regardless of whether such enforceability is considered in
a proceeding in equity or at law) or by an implied covenant of good
faith and fair dealing.
(e) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder will not, (i) conflict with or violate any trust agreement
or other similar documents relating to any trust of which such
Stockholder is trustee, (ii) conflict with or violate any law
applicable to such Stockholder or by which such Stockholder or any of
such Stockholder's properties is bound or affected or (iii) result in
any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others
any rights of termination, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any assets of such
Stockholder, including, without limitation, such Stockholder's Shares,
pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which such Stockholder is a party or by which such Stockholder or any
of such Stockholder's assets is bound or affected, except for any such
breaches, defaults, conflicts, violations or other occurrences that
would not prevent or delay the performance by such Stockholder of such
Stockholder's obligations under this Agreement.
(f) Until the termination of this Agreement, Stockholder will
not (and will use Stockholder's reasonable best efforts to cause the
Company, its officers, directors and employees and any investment
banker, attorney, accountant or other advisor or representative of
Stockholder or the Company or any of the same not to) (i) solicit,
initiate or knowingly encourage (including by furnishing nonpublic
information) any inquiries or the making of any proposal or offer that
constitutes, or may reasonably be expected to lead to, an Acquisition
Proposal, (ii) participate in any discussions or negotiations in
furtherance of such inquiries or to obtain an Acquisition Proposal, or
the making of any proposal that constitutes any Acquisition Proposal,
or (iii) knowingly facilitate any effort or attempt to make or
implement an Acquisition Proposal. Notwithstanding any provision of
this Section 3(f) to the contrary, if any Stockholder is a member of
the Company's Board of Directors, such member of the Board of Directors
may take actions in such capacity to the extent permitted by Sections
6.4 and 8.1(e) of the Merger Agreement.
(g) The Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger.
(h) The Stockholder agrees to execute and deliver any
additional documents necessary, in the reasonable opinion of Parent, to
carry out the purpose and intent of this Agreement.
Section 4. TERMINATION. This Agreement shall terminate upon the
earliest to occur of (i) the Effective Time or (ii) the termination of the
Merger Agreement in accordance with the terms
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thereof; provided that no such termination shall relieve any party of liability
for a breach hereof prior to termination.
Section 5. MISCELLANEOUS.
(a) 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, between the parties with respect to the subject matter hereof.
This Agreement is not intended to confer upon any other person any
rights or remedies hereunder. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each
of the parties hereto.
(b) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by operation of Law (including
by merger or consolidation) or otherwise without the prior written
consent of the other parties hereto. Any assignment in violation of the
preceding sentence shall be void. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be
enforceable by the parties hereto and their respective successors and
assigns.
(c) All notices, requests, claims, demands and other
communications to be given under this Agreement shall be in writing and
shall be deemed given (i) three (3) business days following sending by
registered or certified mail, postage prepaid, (ii) when sent if sent
by facsimile; PROVIDED, HOWEVER, that the fax is promptly confirmed by
telephone confirmation thereof, (iii) when delivered, if delivered
personally to the intended recipient, and (iv) one business day
following sending by overnight delivery via a national courier service,
and in each case, addressed to a party at the following address for
such party:
if to Parent:
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxxxx LLP
3200 National City Center
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
and
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Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
if to Stockholders:
At the address set forth opposite such Stockholder's name on Schedule A
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx III
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth
above.
(d) This Agreement shall be governed by, and construed in
accordance with the laws of, the State of New York, without giving
effect to the choice of law provisions thereof.
(e) The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(f) The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
If any provision of this Agreement, or the application thereof to any
person or any circumstance, is invalid or unenforceable, (a) if
necessary, a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable,
the intent and purpose of such invalid or unenforceable provision and
(b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
(g) 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 any Federal court or New York State court sitting in the Borough of
Manhattan, City of New York, this being in addition to any other remedy
to which they are entitled at law or in equity. In addition,
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each of the parties hereto (a) consents to submit itself to the
personal jurisdiction and exclusive venue of any Federal court or New
York State court sitting in the Borough of Manhattan, City of New York
in the event any dispute arises out of this Agreement or the validity,
performance or enforcement of this Agreement, and (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction or venue
by motion or other request for leave from any such court.
(h) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties.
(i) The words "hereof," "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to the sections and
paragraphs of this Agreement unless otherwise specified. Whenever the
words "include," "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation."
All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. Any
agreement, instrument or statute defined or referred to herein or in
any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time, amended,
qualified or supplemented, including (in the case of agreements and
instruments) by waiver or consent and (in the case of statutes) by
succession of comparable successor statutes and all attachments thereto
and instruments incorporated therein. References to a person are also
to its permitted successors and assigns.
(j) The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date and year first written above.
_______________________________
Xxxxxxx X. Xxxxxx
Director
_______________________________
Xxxxxxx X. Xxxxxxxx Xx.
Director
_______________________________
Xxxxxxx X. Xxxxxx
Director
_______________________________
Xxxxx Xxxxxx
President, Chief Executive
Officer and Director
_______________________________
Xxxxxx X. Xxxxx
Director
_______________________________
Xxx X. Xxxxxxxxx
President and Chief Executive
Officer, JDN Development
Company, Inc., and Director
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Agreed and Acknowledged:
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By:
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Name: Xxxxx X. Xxxxxxxxxx
Title: President
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