EXHIBIT 4
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 23, 2002 (this "AGREEMENT"), by and
between Prometheus Southeast Retail Trust ("PSRT"), a Maryland real estate
investment trust, Konover Property Trust, Inc. ("TARGET"), a Maryland
corporation, and Kimkon Inc. ("KI"), a Delaware corporation.
RECITALS
WHEREAS, as of the date hereof, PSCO Acquisition Corp. ("BUYER"), a
Maryland corporation, the stockholders of which are PSRT and KI, a subsidiary of
Kimco Realty Corporation, and Target are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended or modified from
time to time in accordance with its terms, the "MERGER AGREEMENT"), which
provides, among other things, for the merger of Buyer with and into Target, with
Target as the surviving corporation (the "MERGER");
WHEREAS, as of the date hereof, PSRT is the direct or indirect record
and beneficial holder of 21,052,631 shares of common stock, par value $.01 per
share, of Target (collectively, the "SHARES" and, together with such additional
Shares hereafter acquired by PSRT whether by means of purchase, dividend,
distribution or otherwise, PSRT's "OWNED SHARES");
WHEREAS, as a condition to the willingness of Target to enter into the
Merger Agreement, Target has requested that PSRT agree, and PSRT has agreed, to
enter into this Agreement, pursuant to which, among other things, PSRT and
Target desire to set forth their agreement with respect to the voting of the
Owned Shares by PSRT in connection with the Merger, upon the terms and subject
to the conditions set forth herein; and
WHEREAS, as a condition to the willingness of KI to become a
stockholder of Buyer and to make certain commitments to Buyer to enable it to
enter into the Merger Agreement, and cause Buyer to enter into the Merger
Agreement, KI has requested that PSRT agree, and PSRT has agreed, to enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to them in
the Merger Agreement as in effect on the date hereof.
SECTION 2. AGREEMENT TO VOTE. PSRT agrees that at such time as
Target conducts a meeting of, or otherwise seeks a vote or consent of, its
stockholders for the purpose of approving and adopting the Merger Agreement, the
Merger and the actions required in furtherance thereof, PSRT shall vote, or
provide a consent with respect to, its Owned Shares (i) in favor of the approval
and adoption of the Merger Agreement, the Merger and the actions required in
furtherance thereof and (ii) against any action or agreement that would compete
with,
impede or interfere with the adoption and approval of the Merger Agreement and
the timely consummation of the Merger.
SECTION 3. COVENANTS OF PSRT. PSRT hereby covenants and agrees
that, except as contemplated by this Agreement (including Section 9 hereof) or
the Merger Agreement, PSRT shall not while this Agreement is in effect:
(i) sell, give, assign or otherwise dispose of
(each, a "TRANSFER"), or agree to Transfer, any Owned Shares
(except to Transfer a portion of its Owned Shares to Buyer
immediately prior to the consummation of the Merger or to
Transfer a portion of its Owned Shares to a Person that agrees
to be bound by the provisions of Section 2 of this Agreement
with respect to the transferred Owned Shares (such agreement
to be evidenced by a written agreement in form and substance
reasonably acceptable to each of Target and KI));
(ii) enter into any agreement or grant or agree
to grant any proxy or power-of-attorney with respect to any
Owned Shares which is inconsistent with this Agreement; or
(iii) by any action or omission cause any security
interests, liens, claims, pledges, charges, encumbrances,
options, rights of first refusal, agreements or limitations on
PSRT's voting rights to attach to the Owned Shares (except for
any pledge of the Owned Shares or any custodial arrangement
with respect to the Owned Shares under any existing or
successor loan agreement or credit facility (including the
ancillary documents relating thereto) to which PSRT or any
Affiliate of PSRT is a party).
SECTION 4. NO OWNERSHIP INTEREST. Nothing contained in this
Agreement shall be deemed to vest in Target or KI any direct or indirect
ownership or incidence of ownership of or with respect to any Owned Shares. All
rights, ownership and economic benefits of and relating to the Owned Shares
shall remain vested in and belong to PSRT, and neither Target nor KI shall have
any power or authority to direct PSRT in the voting of any of the Owned Shares,
except as otherwise provided herein, or in the performance of PSRT's duties or
responsibilities as a stockholder of Target.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF PSRT. PSRT
represents and warrants to Target and KI as follows:
(a) PSRT has all necessary corporate power and authority
to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by PSRT and the consummation by PSRT of the transactions
contemplated hereby have been duly and validly authorized by PSRT, and no other
proceedings on the part of PSRT are necessary to authorize this Agreement or to
consummate such transactions. This Agreement has been duly and validly executed
and delivered by PSRT and, assuming the due authorization, execution and
delivery by Target and KI, constitutes a legal, valid and binding obligation of
PSRT, enforceable against
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PSRT in accordance with its terms (except in all cases as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, conservatorship, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and except that the availability of
the equitable remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceeding may be brought).
(b) The execution and delivery of this Agreement by PSRT
does not, and the performance of this Agreement by PSRT shall not, (i) conflict
with or violate the organizational documents of PSRT, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to PSRT
or by which the Owned Shares are bound or affected or (iii) except with respect
to any of the following as to which a consent or waiver has already been
obtained, result in any breach of or constitute a default (or an event that with
notice or lapse or time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the Owned Shares pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which PSRT is a party or
by which PSRT or the Owned Shares are bound or affected, except, in the case of
clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults
or other occurrences which would not prevent or delay the performance by PSRT of
its obligations under this Agreement.
(c) The execution and delivery of this Agreement by PSRT
does not, and the performance of this Agreement by PSRT shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any court or arbitrator or any Regulatory Authority except for applicable
requirements, if any, of the Exchange Act and except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by PSRT of its
obligations under this Agreement.
(d) As of the date hereof, PSRT is the record and
beneficial owner of 21,052,631 Shares. The Shares are, and the Owned Shares will
be, all of the securities of Target owned, either of record or beneficially, by
PSRT on and as of the Closing Date (except to the extent of the Transfer of all
or a portion of the Owned Shares to Buyer immediately prior to the consummation
of the Merger) and, except with respect to the Contingent Value Rights
Agreement, dated February 24, 1998, between the Target and Prometheus Southeast
Retail LLC (which subsequently assigned its rights thereunder to PSRT), PSRT
owns no other rights or interests exercisable for or convertible into any
securities of Target. The Shares are, and the Owned Shares will be, owned free
and clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreement, limitations on PSRT's voting rights, charges and other
encumbrances of any nature whatsoever, except for any pledge of the Owned Shares
or any custodial arrangement with respect to the Owned Shares under any existing
or successor loan agreement or credit facility (including the ancillary
documents relating thereto) to which PSRT or any Affiliate of PSRT is a party.
PSRT has not appointed or granted any proxy that is inconsistent with this
Agreement, which appointment or grant is still effective, with respect to the
Shares.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF TARGET. Target
represents and warrants to PSRT and KI as follows:
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(a) Target has all necessary power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Target and the consummation by Target of the transactions
contemplated hereby have been duly and validly authorized by Target, and no
other proceedings on the part of Target are necessary to authorize this
Agreement or to consummate such transactions. This Agreement has been duly and
validly executed and delivered by Target and, assuming the due authorization,
execution and delivery by PSRT and KI, constitutes a legal, valid and binding
obligation of Target, enforceable against it in accordance with its terms
(except in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, conservatorship,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding may be brought).
(b) The execution and delivery of this Agreement by
Target do not, and the performance of this Agreement by Target shall not, (i)
conflict with or violate the organizational documents of Target, (ii) conflict
with or violate any law, rule, regulation, order, judgment or decree applicable
to Target or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse or time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of
any material note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Target is
a party or by which Target is bound or affected, except, in the case of clauses
(ii) and (iii), for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by Target of its
obligations under this Agreement or the Merger Agreement.
(c) The execution and delivery of this Agreement by
Target do not, and the performance of this Agreement by Target shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any court or arbitrator or any Governmental Entity except for
applicable requirements, if any, of the Exchange Act and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by Target of its obligations under this Agreement or the Merger Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF KI. KI represents
and warrants to PSRT and Target as follows:
(a) KI has all necessary power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by KI and the consummation by KI of the transactions contemplated
hereby have been duly and validly authorized by KI, and no other proceedings on
the part of KI are necessary to authorize this Agreement or to consummate such
transactions. This Agreement has been duly and validly executed and delivered by
KI and, assuming the due authorization, execution and delivery by PSRT and
Target, constitutes a legal, valid and binding obligation of KI, enforceable
against it in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar
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laws affecting the enforcement of creditors' rights generally and except that
the availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding may
be brought).
(b) The execution and delivery of this Agreement by KI do
not, and the performance of this Agreement by KI shall not, (i) conflict with or
violate the organizational documents of KI, (ii) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to KI or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse or time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of any material
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which KI is a party or by which
KI is bound or affected, except, in the case of clauses (ii) and (iii), for any
such conflicts, violations, breaches, defaults or other occurrences which would
not prevent or delay the performance by KI of its obligations under this
Agreement.
(c) The execution and delivery of this Agreement by KI do
not, and the performance of this Agreement by KI shall not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
court or arbitrator or any Governmental Entity except for applicable
requirements, if any, of the Exchange Act and except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by KI of its
obligations under this Agreement.
SECTION 8. TERMINATION. This Agreement shall terminate and no
party shall have any rights or duties hereunder upon the earlier of (a) the day
on which the Merger Agreement is terminated in accordance with its terms, and
(b) the Effective Time. Any such termination shall be without prejudice to
liabilities arising hereunder before such termination.
SECTION 9. SHAREHOLDER CAPACITY. Notwithstanding anything herein
to the contrary: (a) with respect to any Affiliate of PSRT that is or becomes,
during the term hereof, a director or officer of Target, no representation,
warranty, undertaking or agreement herein shall apply to such Affiliate in his
or her capacity as such a director or officer and (b) PSRT has entered into this
Agreement solely in PSRT's capacity as the record and beneficial owner of the
Shares and nothing herein shall limit or affect any actions taken or omitted to
be taken at any time by any of its Affiliates in his or her capacity as an
officer or director of Target.
SECTION 10. NON-SURVIVAL. The representations and warranties made
herein shall terminate upon termination of this Agreement.
SECTION 11. SUPPLEMENTAL VOTING AND TENDER AGREEMENT.
Notwithstanding anything to the contrary contained in this Agreement, nothing in
this Agreement shall prohibit PSRT from taking any action necessary to perform
its obligations under the Supplemental Voting and Tender Agreement, dated the
date hereof, between PSRT and Target, as the same shall be amended, modified or
supplemented from time to time in accordance with its terms.
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SECTION 12. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; ASSIGNMENT. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
The rights and obligations under this Agreement shall not be transferred by any
party without the prior written consent of the other parties.
(b) PARTIES IN INTEREST. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their respective
successors, executors, administrators, heirs and permitted assigns. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Agreement.
(c) AMENDMENT. This Agreement may not be amended,
changed, supplemented, or otherwise modified, except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be given (and shall be deemed to have been
duly received if given) by hand delivery or by facsimile transmission with
confirmation of receipt, as follows:
if to PSRT:
c/o Lazard Freres Real Estate Investors L.L.C.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
if to Target:
0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
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with a copy to:
Xxxxxx & Bird LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
If to KI:
c/o Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
Post Office Xxx 0000
Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Fried, Xxxxx Xxxxxx, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(e) SEVERABILITY. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction such invalidity, illegality or unenforceability will not affect any
other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(f) SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that the provisions of this
Agreement are not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
(g) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state.
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(h) JURISDICTION. Each party to this Agreement hereby
irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or any agreements or transactions contemplated hereby
shall be brought in the courts of the State of New York and hereby expressly
submits to the personal jurisdiction and venue of such courts for the purposes
thereof and expressly waives any claim of improper venue and any claim that such
courts are an inconvenient forum. Each party hereby irrevocably consents to the
service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth or referred to in Section 12(d), such
service to become effective 10 days after such mailing.
(i) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(j) HEADINGS. 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.
(k) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same agreement.
(l) FURTHER ASSURANCES. Each party shall cooperate and
take such action as may be reasonably requested by the other party in order to
carry out the provisions and purposes of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed as of the day and year first above written.
PROMETHEUS SOUTHEAST RETAIL TRUST
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
KONOVER PROPERTY TRUST, INC.
By: /s/ J. Xxxxxxx Xxxxxxx
---------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: President
KIMKON INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
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