EXHIBIT 99.5
VOTING AGREEMENT
VOTING AGREEMENT dated October 28 2002, by and among Equity One, Inc., a
Maryland corporation (the "Company"), and E. Stanley Kroenke (the
"Shareholder"), in his capacity as a shareholder of IRT Property Company, a
Georgia corporation.
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, the Shareholder is the record and
beneficial owner of the number of shares of IRT Common Stock, set forth on the
signature page hereof beneath the Shareholder's name (together with any shares
of IRT Common Stock acquired after the date hereof, whether upon the exercise of
warrants, options, conversion of convertible securities or otherwise, the
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 Shareholder agree, and in
order to induce the Company to enter into the Merger Agreement, the Shareholder
has 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. The Shareholder hereby agrees that, from and
after the date hereof and until this Agreement shall have been terminated in
accordance with Article 5, 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, the Shareholder will vote (or cause to be voted) the
Shareholder's Shares: (a) in favor of the approval and adoption of the IRT
Shareholder Approval; (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 Shareholder 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. The 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. The Shareholder acknowledges receipt and review of a copy of
the Merger Agreement.
Section 1.2 Irrevocable Proxy; Appointment of Proxy. If the Shareholder
fails to comply with the provisions of Section 1.1 (as determined by the Company
in its sole discretion), the Shareholder hereby agrees that such failure shall
result, without any further action by the Shareholder, in the irrevocable
appointment of the Company, and any other individual who shall be hereafter
designated by the Company, as the 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
(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 THE SHAREHOLDER
MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS AGREEMENT. The Shareholder
hereby revokes all other proxies and powers of attorney with respect to the
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 the Shareholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Shareholder and any obligation of the
Shareholder under this Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of the Shareholder.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholder hereby represents and warrants to the Company as follows:
Section 2.1 Authority. The Shareholder has all necessary power, authority
and capacity to execute and deliver this Agreement, to perform the Shareholder's
obligations hereunder and to consummate the transactions contemplated hereby.
The execution, delivery and performance by the Shareholder of this Agreement and
the consummation by the Shareholder of the transactions contemplated hereby have
been duly and validly authorized, and no other actions or proceedings on the
part of the Shareholder are necessary to authorize the execution and delivery by
the Shareholder of this Agreement, and the consummation by the Shareholder of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Shareholder and constitutes a legal, valid and binding
obligation of the Shareholder, enforceable against the 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.
Section 2.2 No Conflict. The execution and delivery of this Agreement by
the Shareholder do not, and the performance of this Agreement by the Shareholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any third party
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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 2.4, 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). The
Shareholder has sole voting power and sole power of disposition with respect to
all of the Shares owned by the Shareholder and none of the Shares of the
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 the Shareholder constitute community property.
ARTICLE 3.
COVENANTS OF THE SHAREHOLDERS
Section 3.1 No Disposition of Shares. The Shareholder hereby agrees that,
except as contemplated by the Merger Agreement and this Agreement, the
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 the Shareholder's voting rights with respect to,
any of the 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 Shareholder's Meeting 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 the Shareholder herein
untrue or incorrect in any material respect or have the effect of preventing or
disabling the 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. The Shareholder hereby
irrevocably waives any rights of appraisal or rights to dissent from the Merger
that the Shareholder may have.
Section 3.3 No Solicitation of Transactions. The Shareholder 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, the
Shareholder will not and will not permit any investment banker, counsel or
representative of the Shareholder, on behalf of the Shareholder, to,
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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 to the extent permitted by the Merger Agreement.
The 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. The
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
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. Nothing
in this Article 4 shall relieve any party of liability for any breach of this
Agreement.
Section 4.2 Termination Upon Withdrawal of IRT Board Recommendation. The
Shareholder shall also have the right at the IRT Shareholder's Meeting to
terminate this Agreement, and upon such termination the Shareholder shall not
have, nor shall the Company have in respect of the Shareholder, any rights or
obligations hereunder (other than the confidentiality provisions of Section
5.4), if, at the time of such IRT Shareholder's Meeting, the IRT Board shall
have properly withdrawn, qualified or modified its approval of the Merger
Agreement or the Merger or its recommendation that the IRT shareholders vote in
favor of the IRT Shareholder Approval pursuant to 5.1(c)(ii) of the Merger
Agreement.
ARTICLE 5. MISCELLANEOUS
Section 5.1 Stop Transfer Orders and Legends. The 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 Shareholder's 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 Shareholder's
Shares to be inscribed with an appropriate legend that reflects this Agreement
and the covenants contained herein.
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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.
Section 5.3 Further Assurances. The 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. The Shareholder recognizes and acknowledges
that he or she 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 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 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
supersede 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
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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 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 Shareholder 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.
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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 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.
EQUITY ONE, INC.
By: /s/ Chaim Katzman
_________________________________________
Chaim Katzman
Chairman and Chief Executive Officer
SHAREHOLDER
/s/ E. Stanley Kroenke
_________________________________________
E. Stanley Kroenke
Shares of IRT Common Stock:
________________________
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