EXHIBIT 10.2
VOTING AGREEMENT
THOMAS H. LOWDER
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into as of October 25, 2004 by and among Cornerstone Realty Income Trust, Inc., a Virginia corporation ("CORNERSTONE") and Thomas H. Lowder (such person, together with the other signatories hereto (other than Cornerstone), individually and collectively, the "COLONIAL SECURITYHOLDER").
WHEREAS, Cornerstone and Colonial Properties Trust, an Alabama real estate investment trust ("COLONIAL") 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 Colonial Securityholder is the beneficial and record owner of issued and outstanding shares of beneficial interest, $0.01 par value per share, of Colonial (such shares, together with any shares acquired hereafter, the "COLONIAL COMMON SHARES") as more particularly described on Schedule 1 hereto;
WHEREAS, the Colonial Securityholder is the beneficial and record owner of options to purchase Colonial Common Shares (such options, together with any options acquired hereafter, the "COLONIAL OPTIONS"), as more particularly described on Schedule 1 hereto; and
WHEREAS, in accordance with the Recitals of the Merger Agreement, the Colonial Securityholder desires to execute and deliver this Agreement solely in its capacity as a holder of Colonial 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 COLONIAL 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 Colonial 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 Colonial Common Shares or Colonial Options, (b) grant any proxies for any Colonial 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 Colonial Common Shares in a manner required by paragraph (a) of Section 2 hereof), (c) deposit any Colonial Common Shares into a voting trust or enter into a voting agreement with respect to any Colonial Common Shares with respect to any of the matters described in paragraph (a) of Section 2 hereof, or tender any Colonial 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 Colonial 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 Colonial 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 Colonial Securityholder shall cast or cause to be cast all votes attributable to the Colonial Common Shares, at any annual or special meeting of shareholders of Colonial, including any adjournments or postponements thereof, or in connection with any written consent or other vote of Colonial shareholders, (i) in favor of the matters constituting the Colonial Shareholder Approval 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.
(b) The Colonial Securityholder will retain the right to vote its Colonial Common Shares, in its sole discretion, on all matters other than those described in paragraph (a) of this Section 2, and the Colonial Securityholder may grant proxies and enter into voting agreements or voting trusts for its Colonial Common Shares in respect of such other matters.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COLONIAL SECURITYHOLDER
The Colonial Securityholder represents and warrants to Cornerstone and Cornerstone Partnership as follows:
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