EXHIBIT 3
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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of July 9, 2006, is
made and entered into by and among Centro Saturn LLC, a Delaware limited
liability company ("Parent"), Centro Saturn MergerSub LLC, a Delaware limited
liability company and a wholly owned subsidiary of Parent ("MergerSub" and
together with Parent, "Buyer Parties"), and Xxxxxx X. Xxxxxxxxxxx
("Stockholder").
WHEREAS, Heritage Property Investment Trust, Inc., a Maryland
corporation (the "Company"), and Buyer Parties wish to effect a business
combination through a merger of the Company with and into MergerSub (the
"Merger") on the terms and subject to the conditions set forth in that certain
Agreement and Plan of Merger, dated as of July 9, 2006, by and among the Company
and Buyer Parties (the "Merger Agreement") and in accordance with the Maryland
General Corporation Law and the Delaware Limited Liability Company Act;
WHEREAS, Stockholder is the beneficial owner (as defined in Rule 13d-3
of the Securities Exchange Act of 1934, as amended) as of the date hereof of
that number of shares of common stock, par value $0.001 per share (the "Common
Stock"), of Company, or other securities exercisable or exchangeable for, or
convertible into, Common Stock of the Company, in each case as set forth
opposite his name on Schedule I attached hereto (such Common Stock and other
securities collectively referred to as the "Company Shares") (such Company
Shares, together with any other equity interests in the Company acquired by
Stockholder after the date hereof and during the term of this Agreement, being
collectively referred to herein as the "Subject Shares"); and
WHEREAS, as an inducement to Buyer Parties to enter into the Merger
Agreement and incur the obligations set forth therein, Buyer Parties require
that Stockholder enter into this Agreement, and Stockholder desires to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein and not defined shall
have the meanings specified in the Merger Agreement.
Section 2. Representations, Warranties and Covenants of Stockholder.
Stockholder represents and warrants to Buyer Parties as follows:
(a) Authority. Stockholder has all requisite power and authority to
enter into this Agreement, perform his obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by Stockholder, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of
Stockholder. This Agreement has been duly authorized, executed and delivered by
Stockholder and constitutes a valid and binding obligation of Stockholder
enforceable in accordance with its terms.
(b) No Conflicts. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby or
compliance with the terms hereof will violate, conflict with or result in a
breach, or constitute a default (with or without notice or lapse of time or
both) under any or any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to Stockholder or to Stockholder's property or
assets.
(c) The Subject Shares. Stockholder is the beneficial owner of and has
good and marketable title to, the Subject Shares, free and clear of any
mortgage, lien, pledge, charge, encumbrance, security interest or other adverse
claim. Stockholder does not own, of record or beneficially, any shares of
beneficial interest of the Company other than the Subject Shares. Stockholder
has the sole right to vote, or to dispose of, such Subject Shares, and none of
such Subject Shares is subject to any agreement, arrangement or restriction
(other than with respect to restricted shares) with respect to the voting of
such Subject Shares, except as contemplated by this Agreement. There are no
agreements or arrangements of any kind, contingent or otherwise, obligating
Stockholder to sell, transfer, assign, grant a participation interest in,
option, pledge, hypothecate or otherwise dispose or encumber (each, a
"Transfer"), or cause to be Transferred, any of the Subject Shares. No Person
has any contractual or other right or obligation to purchase or otherwise
acquire any of the Subject Shares.
(d) Litigation. There is no action, proceeding or investigation
pending or threatened against Stockholder that questions the validity of this
Agreement or any action taken or to be taken by Stockholder in connection with
this Agreement.
(e) Covenants. From the date hereof until the termination of this
Agreement in accordance with Section 5 hereof:
(i) Stockholder agrees not to take any action that would make any
representation or warranty of Stockholder contained herein untrue
or incorrect or have the effect of preventing, impeding, or in
any material respect, interfering with or adversely affecting the
performance by Stockholder of his obligations under this
Agreement.
(ii) Stockholder hereby waives any rights of appraisal or rights
of dissent from the Merger that Stockholder may have;
(iii) Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any new
Company Shares acquired by Stockholder, if any, after the date
hereof. Any such shares shall be subject to the terms of this
Agreement as though owned by Stockholder on the date hereof; and
(iv) Stockholder hereby authorizes Parent and the Company to
publish and disclose in any announcement or disclosure required
by the SEC and in the Proxy Statement Stockholder's identity and
ownership of the Subject Shares and the nature of Stockholder's
obligation under this Agreement, provided that Stockholder is
provided with a reasonable opportunity to review and comment on
such disclosure.
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Section 3. Representations and Warranties of Buyer Parties. Each of
Buyer Parties hereby represents and warrants to Stockholder as follows:
(a) Authority. Each of Buyer Parties has all requisite power and
authority to enter into this Agreement, perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Buyer Parties, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary action on the
part of Buyer Parties. This Agreement has been duly executed and delivered by
each of the Buyer Parties and constitutes a valid and binding obligation of each
of Buyer Parties enforceable in accordance with its terms.
(b) No Conflicts. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby or
compliance with the terms hereof will violate, conflict with or result in a
breach, or constitute a default (with or without notice or lapse of time or
both) under any provision of, the organizational documents of Buyer Parties or
any trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to Buyer Parties or to the Buyer Parties' property or assets.
Section 4. Agreement to Vote in Favor and Against, Restrictions on
Transfers, Irrevocable Proxy. Until the termination of this Agreement in
accordance with Section 5, Stockholder agrees as follows:
(a) Agreement to Vote in Favor. At any meeting of stockholders of the
Company called to vote upon the Merger and the Merger Agreement or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval (including by written consent in lieu of a meeting) with respect
to the Merger and the Merger Agreement is sought, Stockholder shall vote (or
cause to be voted) his Subject Shares in favor of the approval of the Merger and
the Merger Agreement and each of the transactions contemplated by the Merger
Agreement.
(b) Agreement to Vote Against. At any meeting of stockholders of the
Company or at any adjournment thereof or in any other circumstances upon which a
vote, consent or other approval of all or some of the stockholders of the
Company is sought, Stockholder shall vote (or cause to be voted) his Subject
Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale or transfer of a
material amount of assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or any Acquisition Proposal, (ii)
any amendment of the Company's Articles of Amendment and Restatement (Third) or
Bylaws or other proposal or transaction involving the Company or any of its
subsidiaries, which amendment or other proposal or transaction would in any
manner delay, impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or change in any manner the voting rights of Company Shares, and (iii) any
action, agreement, transaction or proposal that would result in a breach of any
representation, warranty, covenant, agreement or other obligation of the Company
in the Merger Agreement.
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(c) Restrictions on Transfer. Stockholder agrees not to, after the
date of this Agreement, directly or indirectly, (i) Transfer or enter into any
agreement, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any Subject Shares to any Person,
other than pursuant to the Merger Agreement or (ii) grant any proxies, deposit
any Subject Shares into any voting trust or enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, with respect to the Subject
Shares, other than pursuant to this Agreement.
(d) Irrevocable Proxy. Stockholder hereby revokes any and all previous
proxies granted with respect to the Subject Shares. Subject to the last two
sentences of this subsection (d), Stockholder hereby irrevocably appoints Parent
or its designee as Stockholder's agent, attorney and proxy, to vote (or cause to
be voted) the Subject Shares in a manner consistent with Sections 4(a) and 4(b)
hereof. This proxy is irrevocable and coupled with an interest and is granted in
consideration of the Company and Parent entering into the Merger Agreement. In
the event that Stockholder fails for any reason to vote the Subject Shares in
accordance with the requirements of Sections 4(a) and 4(b) hereof, then the
proxyholder shall have the right to vote Stockholder's Subject Shares in
accordance with the provisions of the second sentence of this subsection (d).
The vote of the proxyholder shall control in any conflict between the vote by
the proxyholder of Stockholder's Subject Shares and a vote by Stockholder of his
Subject Shares. Notwithstanding the foregoing, the proxy granted by Stockholder
shall be automatically revoked upon termination of this Agreement in accordance
with its terms.
Section 5. Termination.. This Agreement shall terminate (i) upon the
earlier of (A) the Effective Time and (B) the termination of the Merger
Agreement in accordance with the terms thereof, or (ii) at any time upon notice
by Buyer Parties. No party hereto shall be relieved from any liability for
breach of this Agreement by reason of any such termination.
Section 6. No Shop.
(a) General. Stockholder in his capacity as a stockholder of the
Company shall not, and shall use its reasonable best efforts to cause his
accountants, affiliates, attorneys, consultants, representatives or agents
(collectively, the "Representatives") not to, directly or indirectly, (i)
solicit, initiate or knowingly facilitate or encourage any Acquisition Proposal,
(ii) participate in any negotiations regarding, or furnish to any person any
material nonpublic information in connection with, any Acquisition Proposal,
(iii) engage in discussions with any person with respect to any Acquisition
Proposal, (iv) approve or recommend any Acquisition Proposal, or (v) enter into
any letter of intent or similar document or any agreement or commitment
providing for any Acquisition Proposal.
(b) Notification. Stockholder promptly (and in any event within 24
hours) shall advise Parent orally and in writing of any Acquisition Proposal or
any inquiry, proposal or offer, request for information or request for
discussions or negotiations with respect to or that would reasonably be expected
to lead to any Acquisition Proposal, the identity of the person making any such
Acquisition Proposal or inquiry, proposal, offer or request and shall provide
Parent with a copy (if in writing) and summary of the material terms of any such
Acquisition Proposal or inquiry, proposal or request. Stockholder shall keep
Parent informed of the status (including any change to the terms thereof) of any
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such Acquisition Proposal or inquiry, proposal or request. Stockholder agrees
that it shall not and shall use its reasonable best efforts to cause his
Representatives not to, enter into any confidentiality agreement or other
agreement with any person subsequent to the date of this Agreement which
prohibits Stockholder from providing such information to Parent.
(c) Ongoing Discussions. On the date hereof, Stockholder shall
immediately cease and cause to be terminated any existing solicitation,
discussion or negotiation by Stockholder or his Representatives with respect to
any Acquisition Proposal.
Section 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without regard
to the conflicts of law rules of such state.
Section 8. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in any federal court located in the State
of Maryland or any Maryland state court, and each of the parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Process in
any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party
as provided in Section 12 shall be deemed effective service of process on such
party.
Section 9. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 10. Specific Performance. Stockholder acknowledges and agrees
that (i) the covenants, obligations and agreements of Stockholder contained in
this Agreement relate to special, unique and extraordinary matters, and (ii) a
violation of any of the terms of such covenants, obligations or agreements will
cause Buyer Parties irreparable injury for which adequate remedies are not
available at law. Therefore, Stockholder agrees that Buyer Parties shall be
entitled to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) as a court of competent jurisdiction may
deem necessary or appropriate to restrain Stockholder from committing any
violation of such covenants, obligations or agreements. These injunctive
remedies are cumulative and in addition to any other rights and remedies Buyer
Parties may have.
Section 11. Amendment, Waivers, Etc. Neither this Agreement nor any
term hereof may be amended or otherwise modified other than by an instrument in
writing signed by Buyer Parties and Stockholder. No provision of this Agreement
may be waived, discharged or terminated other than by an instrument in writing
signed by the party against whom the enforcement of such waiver, discharge or
termination is sought.
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Section 12. Assignment; No Third Party Beneficiaries. This Agreement
shall not be assignable or otherwise transferable by a party without the prior
consent of the other parties, and any attempt to so assign or otherwise transfer
this Agreement without such consent shall be void and of no effect; provided
that Buyer Parties may, in their sole discretion, assign or transfer all or any
of their rights, interests and obligations under this Agreement to any affiliate
of Buyer Parties. This Agreement shall be binding upon the respective heirs,
successors, legal representatives and permitted assigns of the parties hereto.
Nothing in this Agreement shall be construed as giving any Person, other than
the parties hereto and their heirs, successors, legal representatives and
permitted assigns, any right, remedy or claim under or in respect of this
Agreement or any provision hereof.
Section 13. Notices. All notices, requests, claims, demands and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by prepaid overnight courier (providing
proof of delivery), by facsimile or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses or facsimile numbers,
if to Buyer Parties, to:
Centro Saturn LLC c/o
Centro Properties Group
Corporate Offices 0xx Xxxxx
Xxx Xxxx Xxxxxxxx Xxxxxx
235 Springvale Road
Xxxx Waverly Victoria, Australia 3150
Attention: Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx
Telecopier No: 011-61-3-9886-1345
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
if to Stockholder, to:
Xxxxxx X. Xxxxxxxxxxx
00 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
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Xxxxxx, Hall & Xxxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: 000-000-0000
Facsimile: 000-000-0000
or to such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. on a Business
Day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next succeeding
Business Day in the place of receipt.
Section 14. Remedies. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 15. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 16. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 17. Stockholder Capacity. Stockholder has executed this
Agreement solely in its capacity as a stockholder of the Company.
Section 18. Section Headings. The article and section headings of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
Section 19. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
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[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PARENT:
CENTRO SATURN LLC
By:____________________________________
Name: _________________________________
Title: ________________________________
MERGERSUB:
CENTRO SATURN MERGERSUB LLC
By: ___________________________________
Name: _________________________________
Title: _______________________________
STOCKHOLDER:
______________________________________
Xxxxxx X. Xxxxxxxxxxx
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Schedule I
Xxxxxx X. Xxxxxxxxxxx: 1,955,099 (of which Stockholder has the right to acquire
1,073,334 upon exercise of options).
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