EXHIBIT 99.1
FORM OF EQUITY ONE, INC. VOTING AGREEMENT
VOTING AGREEMENT dated October 28, 2002, by and among IRT Property Company,
a Georgia corporation (the "IRT"), and certain stockholders (each, a
"Stockholder" and, collectively, the "Stockholders") of Equity One, Inc., a
Maryland corporation (the "Company").
WHEREAS, contemporaneously herewith, the Company and IRT 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 Stockholder is the record and
beneficial owner of the number of shares of Company Common Stock and/or shares
of IRT Common Stock, set forth on the signature page hereof beneath such
Stockholder's name (with respect to each Stockholder, together with any shares
of Company Common Stock or IRT Common Stock acquired after the date hereof,
whether upon the exercise of warrants, options, conversion of convertible
securities or otherwise, such Stockholder's "Shares"); and
WHEREAS, as a condition to the willingness of IRT to enter into the Merger
Agreement, IRT has requested that the Stockholders agree, and in order to induce
IRT to enter into the Merger Agreement, the Stockholders 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 Stockholder, 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 stockholders of the Company or IRT, however called, and in any action by
consent of the stockholders of the Company or IRT upon which the Merger and
related proposals are to be considered, adopted or approved, such Stockholder
will vote (or cause to be voted) such Stockholder's Shares: (a) in favor of the
approval and adoption of the Company Stockholder Approvals or the IRT
Shareholder Approval, as applicable; (b) against any action, proposal,
agreement, transaction or matter that, if taken, executed or consummated by the
Company, would result in a breach of any covenant, obligation, agreement,
representation or warranty of the Company contained in the Merger Agreement or
of the Stockholders 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 the Company,
could result in any of the conditions to IRT'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 Stockholder 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 Stockholder acknowledges
receipt and review of a copy of the Merger Agreement.
Section 1.2 Irrevocable Proxy; Appointment of Proxy. If any Stockholder
fails to comply with the provisions of Section 1.1 (as determined by IRT in its
sole discretion), such Stockholder hereby agrees that such failure shall result,
without any further action by such Stockholder, in the irrevocable appointment
of IRT, and any other individual who shall be hereafter designated by IRT, as
such Stockholder'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 stockholders of the Company or IRT, 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 STOCKHOLDER
MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS AGREEMENT. Each Stockholder
hereby revokes all other proxies and powers of attorney with respect to such
Stockholder'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 Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of any Stockholder and any obligation of the
Stockholder under this Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of such Stockholder.
Section 1.3 Stock Election. Each Stockholder that beneficially owns shares
of IRT Common Stock hereby agrees to make a Stock Election in accordance with
Section 2.2 of the Merger Agreement and submit a Form of Election to that effect
with respect to all shares of IRT Common Stock beneficially owned by such
Stockholder at the Effective Time.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants
to IRT as follows:
Section 2.1 Authority. Such Stockholder has all necessary power, authority
and capacity to execute and deliver this Agreement, to perform such
Stockholder's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by such Stockholder
of this Agreement and the consummation by such Stockholder 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 Stockholder are necessary to
authorize the execution and delivery by such Stockholder of this Agreement, and
the consummation by such Stockholder of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by such Stockholder and
constitutes a legal, valid and binding obligation of such Stockholder,
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enforceable against such Stockholder 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. Except as set forth on Schedule A, the execution
and delivery of this Agreement by such Stockholder do not, and the performance
of this Agreement by such Stockholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any third party
or any 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 Stockholder.
Section 2.4 Ownership of Shares. Except as set forth on Schedule A, such
Stockholder is the record, legal and beneficial owner of that number of Shares
set forth on the signature page hereto opposite such Stockholder'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 Stockholder has sole voting power and sole power
of disposition with respect to all of the Shares owned by such Stockholder and
none of the Shares of such Stockholder 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 Stockholder that is an individual
constitute community property.
ARTICLE 3.
COVENANTS OF THE STOCKHOLDERS
Section 3.1 No Disposition of Shares. Each Stockholder, severally and not
jointly, hereby agrees that, except as contemplated by the Merger Agreement and
this Agreement, such Stockholder 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 Stockholder's voting
rights with respect to, any of such Stockholder'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 Company Stockholders'
Meeting or IRT Shareholders' Meeting, as the case may be, unless the transferee
or assignee of such voting rights grants an irrevocable proxy to IRT 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 Stockholder herein untrue or
incorrect in any material respect or have the effect of preventing or disabling
such Stockholder from performing
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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 Stockholder hereby
irrevocably waives any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
Section 3.3 No Solicitation of Transactions. Each Stockholder, 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 Stockholder will not and will not permit any investment
banker, counsel or representative of the Stockholder, on behalf of the
Stockholder, 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 Stockholder is otherwise permitted by the Merger Agreement. Each Stockholder
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 Stockholder shall notify
IRT 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 IRT,
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.
Section 3.4 Certain Provisions. Such Stockholder expressly assumes the
performance of any and all obligations set forth in the Section 4.1(f)(vi) of
the Merger Agreement to the extent that such provision is applicable to such
Stockholder.
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.
Section 4.2 Termination at the Election of the Stockholders. (a) On the
Termination Date, each Stockholder shall also have the right to terminate this
Agreement, and upon such termination such Stockholder shall not have, nor shall
IRT or any other party have in respect of such Stockholder, any rights or
obligations hereunder (other than the confidentiality provisions of Section
5.4), if:
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(i) the 30-Day Average Trading Price of Company Common Stock is less than
$12.06, or
(ii) the 30-Day Average Trading Price of IRT Common Stock is less than
$10.935, or
(iii) the 3-Day Average Trading Price of Company Common Stock is less than
$11.00, or
(iv) the 3-Day Average Trading Price of IRT Common Stock is less than
$9.935.
(b) For purposes of this Section 4.2,
(i) the "30-Day Average Trading Price" shall mean the weighted average
trading price per share of Company Common Stock or IRT Common Stock, as
applicable, as quoted on the New York Stock Exchange for all transactions during
the thirty (30) trading days ending on (and inclusive of) the Termination Date;
(ii) the "3-Day Average Trading Price" shall mean the weighted average
trading price per share of Company Common Stock or IRT Common Stock, as
applicable, as quoted on the New York Stock Exchange for all transactions during
the three (3) trading days ending on (and inclusive of) the Termination Date;
and
(iii) the "Termination Date" shall mean the fourth business day immediately
preceding the scheduled date of the IRT Shareholders' Meeting.
(c) If any Stockholder shall elect to terminate this Agreement with respect
to such Stockholder pursuant to this Section 4.2, that Stockholder shall provide
written notice thereof to IRT not later than 9:00 a.m., Eastern time, on the day
following the Termination Date.
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 Stockholder agrees and
understands that in order to enforce the transfer restrictions contained in this
Agreement, each of IRT and the Company, 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 Stockholders' 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 Stockholders'
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
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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. Each Stockholder shall, upon the request of
IRT, 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 Stockholder recognizes and acknowledges
that he, she or it will have access to certain confidential information of the
Company, IRT 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 Stockholder
only upon receipt of the Stockholder's agreement to maintain it strictly
confidential. So long as such information remains confidential and nonpublic,
the Stockholder hereby agrees not to use or permit any others to use such
information for any purpose not expressly permitted herein. The Stockholder
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, together with Section
4.1(f)(vi) of the Merger 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.
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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 IRT Common Stock or Company
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 Stockholders being made in care of the Company.
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
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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.
IRT PROPERTY COMPANY
By: _________________________________________
Thomas H. McAuley
President and Chief Executive Officer
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Equity One, Inc. Voting Agreement Signature Page
------------------------------------------------
By its execution and delivery of this signature page, the undersigned
Stockholder hereby joins in and agrees to be bound by the terms and conditions
of the Equity One, Inc. Voting Agreement dated as of October 28, 2002 (the "EQY
Voting Agreement") by and among IRT Property Company and the Stockholders (as
defined therein) as a "Stockholder" thereunder, and authorizes this signature
page to be attached to the EQY Voting Agreement or counterparts thereof.
NAME OF STOCKHOLDER
__________________________________
By: ______________________________
Name:______________________
Title: ____________________
Number of Equity One Shares:______
Number of IRT Shares: ___________
Agreed to and accepted this
28th day of October, 2002
IRT PROPERTY COMPANY
By:_____________________________
Thomas H. McAuley
President and Chief Executive Officer
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