EXHIBIT 10.14
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EQUITY ONE, INC.
STOCKHOLDERS AGREEMENT
THIS AGREEMENT is made as of October 4, 2000, by and among EQUITY ONE,
INC., a Maryland corporation (the "CORPORATION"), XXXXX XXXX PROPERTIES &
INVESTMENTS, LTD., an Israeli corporation or a wholly owned entity (the
"INVESTOR"), GAZIT-GLOBE (1982) LTD., an Israeli corporation ("GLOBE"), M.G.N.
(USA), INC., a Nevada corporation ("MGN"), and GAZIT (1995), INC., a Nevada
corporation ("GAZIT"). Globe, MGN and Gazit are collectively referred to herein
as the "GAZIT-GLOBE GROUP". The Investor and the Gazit-Globe Group are sometimes
collectively referred to as the "STOCKHOLDERS" and each individually as a
"STOCKHOLDER." Capitalized terms used herein are defined in Section 9 hereof.
The Investor is purchasing shares of the Corporation's common stock,
par value $.01 per share, as well as warrants to purchase shares of Common Stock
(the "WARRANTS"), pursuant to a Subscription Agreement and a Warrant Agreement,
respectively, between the Investor and the Corporation, each dated as of the
date hereof (the "SUBSCRIPTION AGREEMENT" and "WARRANT AGREEMENT,"
respectively).
The Corporation and the Stockholders desire to enter into this
Agreement for the purposes, among others, of providing the Investor and the
Gazit-Globe Group certain rights relating to the Common Stock being purchased by
Investor.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. DRAG-ALONG RIGHTS.
(a) In the event the Gazit-Globe Group intends to sell all of
its Stockholder Shares in a bona fide arm's length transaction with a third
party, other than an open-market transaction, at a price per share equal to or
greater than $16.3125, subject to adjustment as set forth in the Subscription
Agreement (the "PROPOSED SALE"), the Gazit-Globe Group shall deliver 15 Business
Days prior written notice thereof to Investor. Investor shall vote for, consent
to and raise no objections to or contest such Proposed Sale. If the Proposed
Sale is structured as a merger or consolidation, Investor shall waive any
dissenters rights, appraisal rights or similar rights in connection with such
merger or consolidation; if the Proposed Sale is structured as a sale of stock,
upon the request of the Gazit-Globe Group set forth in such notice, Investor
shall (A) agree to sell all of its Stockholder Shares and unexercised Warrants
subject to the qualifications set forth in paragraph 1(b) below, and (B) execute
such purchase agreement and other documents as may reasonably be requested by
the Gazit-Globe Group. Investor shall take such other necessary or desirable
actions in connection with the consummation of the Proposed Sale as may be
reasonably requested by the Gazit-Globe Group. A "Business Day" as used herein
shall mean any day on which banks are open for business in the city of New York.
(b) The obligations of the Investor with respect to the
Proposed Sale are subject to the ownership at such time by the Gazit-Globe Group
of an aggregate ownership interest in the Corporation equal to or greater than
the ownership interest of the Investor at such time and the satisfaction of the
following conditions: (i) upon the consummation of the Proposed Sale, Investor
shall receive for each of its Investor Shares being sold the same form of
consideration and the same amount of consideration as the Gazit-Globe Group
receives for each of their Stockholder Shares being sold and (ii) if the
Investor holds any unexpired and unexercised Warrants, it shall be given an
opportunity to either (A) exercise the Warrants prior to the consummation of the
Proposed Sale or (B) receive in exchange for such rights consideration equal to
the amount determined by multiplying (1) the same amount of consideration per
share received by holders of the Common Stock in connection with the Proposed
Sale less the exercise price per share payable for the exercise of the Warrants
by (2) the number of shares of Common Stock to which Investor is entitled upon
exercise of such Warrants.
2. TAG-ALONG RIGHTS. If any member (the "SELLING STOCKHOLDER") of the
Gazit-Globe Group proposes to sell, other than pursuant to an open-market
transaction or a de minimis transaction (involving less than 2% of the
Corporation's outstanding stock), any of its Stockholder Shares, it may only
make such sale after complying with the provisions of this Section 2. First, the
Selling Stockholder shall give to the Investor a notice (an "Offer Notice")
allowing the Investor to participate, on a pro-rata basis based upon the
percentage of the Stockholder Shares of the Gazit-Globe Group offered to be
sold, upon the purchase by the proposed transferee of any shares of Common Stock
owned by the Selling Stockholder and for the same per share consideration. The
Investor shall have the right, for a period of 10 Business Days after the Offer
Notice is given, to accept such offer in whole or in part, exercisable by
delivering a written notice to the Selling Stockholder within such 10 Business
Day period, stating therein the number of shares of Common Stock (which may be
the number of shares set forth in the Offer Notice or a portion thereof) to be
sold by the Investor to the proposed transferee. Prior to the earlier of (x) the
end of such 10 Business Day period or (y) the acceptance or rejection by the
Investor of the Selling Stockholder's offer, as the case may be, the Selling
Stockholder shall not complete any sale of shares of Common Stock to the
proposed transferee. Thereafter, for a period of 120 days, the Selling
Stockholder may sell to the proposed transferee for the consideration stated and
on terms no more favorable to the proposed transferee than those set forth in
the Offer Notice, shares of Common Stock stated in the Offer Notice as subject
to purchase by the Selling Stockholder; PROVIDED that the proposed transferee,
as the case may be, shall simultaneously purchase the number of shares of Common
Stock as calculated above from the Investor, to the extent the Investor elected
to participate in the sale.
To the extent the number of shares of Common Stock proposed to be sold
by the Investor, if any, combined with the number proposed to be sold by the
Selling Stockholder exceed the number of shares the proposed transferee is
willing to purchase (the "MAXIMUM PURCHASE AMOUNT"), then each of the Investor
and the Selling Stockholder shall be entitled to sell such number of shares of
Common Stock as shall constitute such percentage of the Maximum Purchase Amount
corresponding to the percentage of shares, vis-a-vis one another, of Investor
Stock and Stockholder Shares held by the Investor and the Gazit-Globe Group,
respectively. For the purposes of such calculation, any unexercised and
unexpired Warrants with an exercise price
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that is below the proposed offer price of the Common Stock, shall be deemed to
be Investor Stock held by the Investor.
3. BOARD OF DIRECTORS.
(a) Each member of the Gazit-Globe Group hereby agrees,
commencing as of the date hereof and during the term of this Agreement, to vote
all of its Stockholder Shares and any other voting securities of the Corporation
over which such Stockholder has voting control and to take all other necessary
or desirable actions within its control (whether in its capacity as a
stockholder, designator of a director, member of a Board of Directors committee
or officer of the Corporation or otherwise, and including, without limitation,
attendance at meetings for purposes of obtaining a quorum and execution of
written consents in lieu of meetings), and the Corporation shall take all
necessary and desirable actions within its control (including, without
limitation, calling special board and stockholder meetings), so that designees
of the Investor (the "INVESTOR DIRECTORS") are elected to the Board of Directors
of the Corporation pursuant to the following terms and conditions set forth
below. To the extent, based on such conditions, the Investor has the right to
designate two Investor Directors, at least one such person shall be a resident
or citizen of the United States and not an affiliate of the Investor, the
Gazit-Globe Group or the Corporation.
(i) if the Investor owns at least 2,300,000 Investor Shares as
of December 31, 2001 and 2,950,000 Investor Shares as of December 31,
2002, and all Shares held by the Investor (directly or indirectly)
represent at least 20% of the aggregate number of Shares held (directly
or indirectly) by the Investor and the Gazit-Globe Group, and such
aggregate amount represents not less than 50% of the total outstanding
voting capital stock of the Corporation, the Investor may designate the
greater of two nominees or such number of nominees as shall constitute
20% of the Board of Directors to the Board of Directors;
(ii) if the conditions set forth in Section 3(a) are not met
at any time after each applicable date, and such failure is not
remedied within 60 days of the date upon which the condition is no
longer met (the "Cure Period"), but the Investor owns (directly or
indirectly) the greater of (i) 5% of the Corporation's total
outstanding voting capital stock, on a fully-diluted basis, and (ii)
1,000,000 Investor Shares, the Investor shall then become entitled to
only designate one nominee to the Board of Directors and shall promptly
cause one of the Investor Directors to submit its resignation to the
Corporation.
(b) Except as otherwise set forth in the Subscription
Agreement, and so long as the conditions described above are obtained, an
Investor Director may only be removed by the Investor and may only be replaced
by someone designated by the Investor; provided, that any representative removed
for cause shall not be designated again as a member of the Board of Directors.
So long as the members of the Gazit-Globe Group have complied with the
provisions of this Section 3, the Investor (and its affiliates) will vote all of
its Stockholder Shares of the Corporation it acquires for nominees to the Board
of Directors as directed in writing by a representative of Gazit-Globe Group.
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(c) To the extent the Investor loses the right to designate an
Investor Director by failing to meet the ownership requirements set forth above
(and not remedying the same within the Cure Period), the Investor shall
irrevocably lose the right to designate an Investor Director for such position
notwithstanding its later acquiring a sufficient interest to meet the ownership
requirements.
(d) The Investor's two initial Investor Directors shall be
nominated to the Board of Directors no later than the earlier to occur of (i)
the Initial Closing Date (as defined in the Subscription Agreement) and (ii) the
first meeting of the Board of Directors to take place after the execution of the
Subscription Agreement.
4. RESTRICTIONS ON CERTAIN ACTIONS. For any period during which the
Investor owns beneficially and/or of record, 20% or more of the outstanding
shares of Common Stock and the Gazit-Globe Group holds a majority interest in
the Corporation, the Investor may not, without the prior written consent of the
Corporation's Board of Directors:
(a) directly or indirectly seek, or permit any person over
whom or which such Investor has control (a "Controlled Person") to seek or
encourage or assist any associate, partner or affiliate of the Investor to seek
representation on the Board of Directors of the Corporation or otherwise seek to
participate in or influence the Corporation's management, management decisions,
operating policies, or governing corporate instruments;
(b) instigate or join in any attempt to change the
Corporation's management, management decisions, operating policies, governing
corporate instruments or conduct of its business and affairs;
(c) solicit or permit any Controlled Person to solicit, or
encourage or assist any associate, partner or affiliate of the Investor to
solicit proxies with respect to any shares of Common Stock or other securities
of the Corporation entitled to vote generally for the election of directors or
otherwise ("Voting Securities") under any circumstance, or become a
"participant", or permit any Controlled Person, or encourage or assist any
associate, partner or affiliate of the Investor to become a "participant", in
any "election contest" relating to the election of directors of the Corporation,
changes in governing corporate instruments or otherwise (as such terms are used
in Rule 14a-11 of Regulation 14A under the Securities Act of 1933, as amended);
(d) deposit, or permit any Controlled Person, or encourage or
assist any associate, partner or affiliate of the Investor to deposit, any
Voting Securities in a voting trust or similar arrangement, or subject or permit
any Controlled Person, or encourage or assist any associate, partner or
affiliate of such Investor to subject any Voting Securities to a voting or
similar agreement;
(e) take any action alone or in concert with any other person
to acquire or affect the control of the Corporation or, directly or indirectly,
participate in, or encourage the formation of, any group seeking to obtain or
take control of the Corporation; or
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(f) directly or indirectly seek to influence any of the
Corporation's contractual relationships, whether orally, in writing or otherwise
(including, without limitation, the Corporation's contractual relationships with
its auditors, its investment bankers and its lenders).
5. REGISTRATION RIGHTS. The Gazit-Globe Group acknowledges and agrees,
to the extent necessary, that Investor shall have such registration rights as
are set forth in the Subscription Agreement. Investor acknowledges and agrees,
to the extent necessary, that members of the Gazit-Globe Group shall have such
registration rights as are set forth in the Public Reports, as defined in the
Subscription Agreement or as reflected in the minutes of the Corporation.
6. CONFIDENTIALITY. All materials and information obtained by any
Stockholder pursuant to this Agreement or otherwise delivered by the Corporation
to any Stockholder shall be kept confidential and shall not be disclosed to any
third party except (a) as has become generally available to the public (other
than through disclosure by such Stockholder in contravention of this Agreement),
(b) to such Stockholder's directors, officers, trustees, partners, employees,
agents and professional consultants on a need to know basis, (c) to any other
holder of Common Stock or Warrants, (d) to any person or entity to which such
Stockholder offers to sell or transfer any shares of Common Stock or Warrants,
PROVIDED, that the prospective transferee shall agree to be bound by the
provisions of this Section 6, (e) in any report, statement, testimony or other
submission to any governmental authority having or claiming to have jurisdiction
over such Stockholder, or (f) in order to comply with any law, rule, regulation
or order applicable to such Stockholder, or in response to any summons, subpoena
or other legal process or formal or informal investigative demand issued to such
Stockholder in the course of any litigation, investigation or administrative
proceeding.
7. CONFLICTING AGREEMENTS. Each Stockholder represents that it has not
granted and is not a party to any proxy, voting trust or other agreement which
is inconsistent with or conflicts with the provisions of this Agreement, and no
holder of Stockholder Shares shall grant any proxy or become party to any voting
trust or other agreement which is inconsistent with or conflicts with the
provisions of this Agreement. No Stockholder shall act, for any reason, as a
member of a group or in concert or enter into any agreement or arrangement with
any other person in connection with the acquisition, disposition or voting of
Stockholder Shares in any manner which is inconsistent with the provisions of
this Agreement.
8. DEFINITIONS.
"COMMON STOCK" means (i) the Corporation's common stock, par
value $.01 per share, and (ii) any securities issued or issuable with respect to
the capital stock referred to in clause (i) above by way of stock dividends or
stock splits or in connection with a combination of shares, recapitalization,
merger, consolidation, or other reorganization.
"INVESTOR DIRECTORS" shall have the meaning set forth in
Section 3 hereof.
"INVESTOR SHARES" means the shares of Common Stock purchased
by Investor pursuant to the Subscription Agreement.
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"STOCKHOLDER" shall have the meaning as set forth in the
preamble and shall include their permitted successors and assigns.
"STOCKHOLDERS" shall have the meaning as set forth in the
preamble.
"STOCKHOLDER SHARES" means any Common Stock purchased or
otherwise acquired by any Stockholder, including without limitation, (i) any
equity securities issued or issuable directly or indirectly with respect to the
Common Stock by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, (ii) any shares of Common Stock issued pursuant to the exercise
of any convertible securities, including the Warrants, and (iii) any other
shares of any class or series of capital stock of the Corporation held by a
Stockholder.
"WARRANTS" means the warrants issued pursuant to the Warrant
Agreement (as defined in the preamble).
9. TRANSFERS IN VIOLATION OF AGREEMENT. Any transfer or attempted
transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Corporation shall not record such transfer on
its books or treat any purported transferee of such Stockholder Shares as the
owner of such shares for any purpose.
10. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective unless such modification, amendment, termination or waiver is approved
in writing by the Corporation, the Investor and the holders of at least 50% of
the Stockholder Shares held by the Gazit-Globe Group. The failure of any party
to enforce any of the provisions of this Agreement shall in no way be construed
as a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
11. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. ENTIRE AGREEMENT. Except as set forth in the Subscription
Agreement, the representations and warranties of which are specifically
incorporated by reference herein, or the Warrant Agreement or otherwise
expressly set forth herein, this document embodies the complete agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
13. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Corporation and its successors
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and assigns and the Stockholders and any permitted subsequent holders of
Stockholder Shares and the respective successors and permitted assigns of each
of them, so long as they hold Stockholder Shares.
14. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
15. REMEDIES. The parties hereto shall be entitled to enforce their
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Corporation, the Investor and any member of the
Gazit-Globe Group may in its sole discretion apply to any court of law or equity
of competent jurisdiction for specific performance and/or injunctive relief
(without posting a bond or other security) in order to enforce or prevent any
violation of the provisions of this Agreement.
16. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Corporation at the address set forth below and to any other
recipient at the address indicated on the signature page hereto, or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder when delivered personally, three Business Days
after deposit in the U.S. mail and one Business Day after deposit with a
reputable overnight courier service. The Corporation's address is:
Equity One, Inc.
0000 X.X. Xxxxx Xxxxxxx Xxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
17. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement will be
construed and interpreted in accordance with and governed by the laws of the
State of Florida. Investor and each member of the Gazit-Globe Group hereby
irrevocably submits to the exclusive jurisdiction of the state or federal courts
located in Dade County, Florida in connection with any suit, action or other
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby, and hereby agree not to assert, by way of motion, as a
defense, or otherwise in any such suit, action or proceeding that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced by such courts.
18. AGENT FOR SERVICE OF PROCESS. The Investor has appointed Xxxxxx,
Xxxxxxx & Xxxxxxx, attention Xxxxxx X. Xxxxxxxx, Esq., as its authorized agent
in the United States upon which process may be served in any suit or proceeding
related to or arising out of the transactions and agreements contemplated herein
and in the Subscription Agreement and the Warrant Agreement, and agrees that
service of process upon such agent, and written notice of said service to the
Investor by the person serving the same to the address provided below shall be
deemed in every respect effective service of process upon the Investor in any
such suit or
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proceeding. The Investor further agrees to take any and all action as may be
necessary to maintain such designation and appointment of such agent in full
force and effect for a period of ten years from the date of this Agreement.
19. TERMINATION. The provisions of this Agreement shall terminate on
the earlier of (i) the 90th consecutive day on which the Investor owns less than
5% of the Corporation's total outstanding voting capital stock, on a
fully-diluted basis, (ii) the 90th consecutive day on which the Gazit-Globe
Group owns less than 20% of the Corporation's total outstanding voting capital
stock, on a fully diluted basis, and (iii) the tenth anniversary of the date of
this Agreement.
* * * *
(signatures on following page)
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
EQUITY ONE, INC.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: President
XXXXX XXXX PROPERTIES & INVESTMENTS, LTD.
By: /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: Chief Executive Officer
Address:
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GAZIT-GLOBE (1982) LTD.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Chairman of the Board
Address:
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M.G.N. (USA), INC.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: President
Address:
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GAZIT (1995), INC.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: President
Address:
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