EXHIBIT 10.1
VOTING AGREEMENT
(XXXXX X. XXXXXX)
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into as of
October 25, 2004 by and among COLONIAL PROPERTIES TRUST, an Alabama real estate
investment trust ("COLONIAL") and XXXXX X. XXXXXX AND JAMN LTD PARTNERSHIP LLC
(such persons individually and collectively, the "CORNERSTONE SECURITYHOLDER").
WHEREAS, Colonial and Cornerstone Realty Income Trust, Inc., a
Virginia corporation ("CORNERSTONE") are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "MERGER AGREEMENT"), pursuant to which
Cornerstone will be merged with and into a wholly owned subsidiary of Colonial
("COLONIAL MERGER SUB") (the "MERGER"), with Colonial Merger Sub as the survivor
of the Merger (all capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement);
WHEREAS, the Cornerstone Securityholder is the beneficial and record
owner of issued and outstanding shares of common stock, no par value, of
Cornerstone (such shares, together with any shares acquired hereafter, the
"CORNERSTONE COMMON SHARES"), as more particularly described on Schedule 1
hereto;
WHEREAS, the Cornerstone Securityholder is the beneficial and record
owner of options to purchase Cornerstone Common Shares (such options, together
with any options acquired hereafter, the "CORNERSTONE OPTIONS"), as more
particularly described on Schedule 1 hereto; and
WHEREAS, in accordance with the Recitals of the Merger Agreement,
the Cornerstone Securityholder desires to execute and deliver this Agreement
solely in its capacity as a holder of Cornerstone Common Shares.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree, intending to be legally bound hereby, as
follows:
SECTION 1. DISPOSITION OF CORNERSTONE COMMON SHARES
During the period from the date hereof through the earlier of (i)
the date on which the Merger is consummated or (ii) the date on which the Merger
Agreement is terminated according to its terms (such period hereinafter referred
to as the "TERM"), the Cornerstone Securityholder shall not, directly or
indirectly, and shall cause each record holder not to, directly or indirectly,
(a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other agreement or understanding with respect to
the sale, transfer, pledge, encumbrance, assignment or other disposition of, any
Cornerstone Common Shares or Cornerstone Options, (b) grant any proxies for any
Cornerstone Common Shares with respect to any matters described in paragraph (a)
of Section 2 hereof (other than a proxy directing the holder thereof to vote the
Cornerstone Common Shares in a manner required by paragraph (a) of Section 2
hereof), (c) deposit any Cornerstone Common Shares into a voting trust or enter
into a voting agreement with respect to any Cornerstone Common Shares with
respect to any of the matters described in paragraph (a) of Section 2 hereof, or
tender any Cornerstone Common Shares in a transaction other than a transaction
contemplated by the Merger Agreement, or (d) take any action which is intended
to have the effect of preventing or disabling the Cornerstone Securityholder
from performing its obligations under this Agreement; provided, however, that
nothing herein shall prevent the sale, transfer, pledge, encumbrance, assignment
or other disposition of any of such Cornerstone Common Shares, provided that the
purchaser, transferee, pledgee or assignee thereof agrees in writing, prior to
such sale, transfer, pledge, encumbrance, assignment or other disposition, to be
bound by the terms of this Agreement.
SECTION 2. VOTING
(a) During the Term, the Cornerstone Securityholder shall cast or
cause to be cast all votes attributable to the Cornerstone Common Shares at any
annual or special meeting of shareholders of Cornerstone, including any
adjournments or postponements thereof, or in connection with any written consent
or other vote of Cornerstone shareholders, (i) in favor of adoption of the
Merger Agreement and approval of the Merger and the other transactions
contemplated by the Merger Agreement (including any amendments or modifications
of the terms of the Merger Agreement approved by the board of directors of
Cornerstone that would not materially adversely affect the Cornerstone
Securityholder in its capacity as beneficial owner of Cornerstone Common Shares)
and (ii) against approval or adoption of any action or agreement (other than the
Merger Agreement or the transactions contemplated thereby) made or taken in
opposition to or in competition with the Merger.
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(b) The Cornerstone Securityholder will retain the right to vote its
Cornerstone Common Shares, in its sole discretion, on all matters other than
those described in paragraph (a) of this Section 2, and the Cornerstone
Securityholder may grant proxies and enter into voting agreements or voting
trusts for its Cornerstone Common Shares in respect of such other matters.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CORNERSTONE SECURITYHOLDER
The Cornerstone Securityholder represents and warrants to Colonial
as follows:
(a) The Cornerstone Securityholder has the legal capacity, power,
authority and right (contractual or otherwise) to execute and deliver this
Agreement and to perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by the
Cornerstone Securityholder and constitutes a valid and binding obligation of the
Cornerstone Securityholder enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
(c) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
violate any court order, judgment or decree applicable to the Cornerstone
Securityholder, or conflict with or result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under any contract or agreement to which the Cornerstone Securityholder
is a party or by which the Cornerstone Securityholder is bound or affected,
which conflict, violation, breach or default would materially and adversely
affect the Cornerstone Securityholder's ability to perform any of its
obligations under this Agreement.
(d) Subject to any required filings under the Securities Exchange
Act of 1934, as amended (the "1934 ACT"), the Cornerstone Securityholder is not
required to give any notice or make any report or other filing with any
governmental authority in connection with the execution or delivery of this
Agreement or the performance of the Cornerstone Securityholder's obligations
hereunder and no waiver, consent, approval or authorization of any governmental
or regulatory authority or any other person or entity is required to be obtained
by the Cornerstone Securityholder for the performance of the Cornerstone
Securityholder's obligations hereunder, other than where the failure to make
such filings, give such notices or obtain such waivers, consents, approvals or
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authorizations would not materially and adversely affect the Cornerstone
Securityholder's ability to perform its obligations under this Agreement.
(e) The Cornerstone Common Shares and Cornerstone Options set forth
opposite the name of the Cornerstone Securityholder on Schedule 1 hereto are the
only Cornerstone Common Shares and Cornerstone Options owned beneficially or of
record by the Cornerstone Securityholder or over which it exercises voting
control.
SECTION 4. FURTHER ASSURANCES
During the Term, the Cornerstone Securityholder shall make such
filings as may be required under the 1934 Act and, upon the request of Colonial,
execute and deliver such documents and take such actions as Colonial may
reasonably deem necessary to effectuate the purposes of this Agreement.
SECTION 5. DESCRIPTIVE HEADINGS
The descriptive headings herein are inserted for convenience only
and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
SECTION 6. COUNTERPARTS
This Agreement may be executed in counterparts, each of which when
so executed and delivered shall be an original, but all of such counterparts
shall together constitute one and the same instrument.
SECTION 7. ENTIRE AGREEMENT; ASSIGNMENT
This Agreement (i) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties hereto with respect to the subject matter hereof and (ii) shall not be
assigned by the Cornerstone Securityholder, by operation of law or otherwise.
SECTION 8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
(a) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia without regard to the principles
of conflicts of laws thereof.
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(b) The Cornerstone Securityholder hereby submits and consents to
non-exclusive personal jurisdiction in any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby in a federal court
located in the Commonwealth of Virginia or in a Virginia state court. Any
process, summons, notice or document delivered by mail to the address set forth
on Schedule 1 hereto shall be effective service of process for any action, suit
or proceeding in any Virginia state court or any federal court located in the
Commonwealth of Virginia with respect to any matters to which the Cornerstone
Securityholder has submitted to jurisdiction in this Section 8. The Cornerstone
Securityholder irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in any Virginia state court or any
federal court located in the Commonwealth of Virginia, and hereby irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. THE CORNERSTONE SECURITYHOLDER IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT.
SECTION 9. SPECIFIC PERFORMANCE
The parties hereto agree that if any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached, irreparable damage would occur, no adequate remedy at law
would exist and damages would be difficult to determine, and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
SECTION 10. PARTIES IN INTEREST
This Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person or persons any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
SECTION 11. AMENDMENT; WAIVERS
This Agreement shall not be amended, altered or modified except by
an instrument in writing duly executed by each of the parties hereto. No delay
or failure on the part of any party hereto in exercising any right, power or
privilege under this Agreement shall impair any such right, power or privilege
or be construed as a waiver of any default or any acquiescence thereto. No
single or partial exercise of any such right, power or privilege shall preclude
the further
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exercise of such right, power or privilege, or the exercise of any other right,
power or privilege. No waiver shall be valid against any party hereto, unless
made in writing and signed by the party against whom enforcement of such waiver
is sought, and then only to the extent expressly specified therein.
SECTION 12. CAPACITY OF CORNERSTONE SECURITYHOLDER
The Cornerstone Securityholder has executed this Agreement
solely in its capacity as a securityholder of Cornerstone and not in its
capacity as an officer, director, employee or manager of Cornerstone. Without
limiting the foregoing, nothing in this Agreement shall limit or affect any
actions taken by the Cornerstone Securityholder in its capacity as an officer,
director, employee or manager of Cornerstone in connection with the exercise of
Cornerstone's rights under the Merger Agreement.
SECTION 13. TERMINATION
This Agreement shall terminate immediately upon the earlier of (i)
the date on which the Merger Agreement is terminated in accordance with its
terms or (ii) the consummation of the Merger. None of the representations,
warranties, covenants or agreements in this Agreement shall survive the
termination of this Agreement; provided, however, that nothing contained herein
shall release the Cornerstone Securityholder from any liability arising from any
breach of any of its representations, warranties, covenants or agreements in
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Voting Agreement, or have caused this Voting Agreement to be duly
executed and delivered in their names and on their behalf, as of the date first
written above.
COLONIAL PROPERTIES TRUST
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
JAMN LTD PARTNERSHIP LLC
By: /s/ Xxxxx X. Xxxxxx
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Name : Xxxxx X. Xxxxxx
Title: General Partner
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