EXHIBIT 4
EQUITY ONE, INC.
STOCKHOLDERS AGREEMENT
THIS AGREEMENT is made as of __________________, 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
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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 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.
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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 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
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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 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:___________________________________
Name:_________________________________
Title:________________________________
XXXXX XXXX PROPERTIES & INVESTMENTS, LTD.
By:___________________________________
Name:_________________________________
Title:________________________________
Address:______________________________
GAZIT-GLOBE (1982) LTD.
By:___________________________________
Name:_________________________________
Title:________________________________
Address:______________________________
M.G.N. (USA), INC.
By:___________________________________
Name:_________________________________
Title:________________________________
Address:______________________________
GAZIT (1995), INC.
By:___________________________________
Name:_________________________________
Title:________________________________
Address:______________________________
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