EXHIBIT 10.18
-------------
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT made and entered into this 18TH day of SEPTEMBER,
2001 by and among XXXXX XXXXXX ("Pledgor") and EQUITY ONE, INC. (the "Secured
Party"). WHEREAS, Pledgor has exercised 215,347 options at $10.00 per option to
purchase 215,347 shares of common stock of Equity One, Inc., par value $.01 per
share (the "Company"), which Pledgor intends to pledge as described herein, (the
"Common Shares");
WHEREAS, Pledgor is an employee of the Company and has received a loan
from the Company evidenced by a Promissory Note dated on even date in the sum of
$2,153,470 to pay for the Common Shares acquired through the exercise of the
options;
WHEREAS, the Company has requested from the Pledgor and the Pledgor has
agreed to pledge the Common Shares to secure the repayment of the loan.
WHEREAS, in consideration of the loan granted by the Company to the
Pledgor, the Pledgor has agreed to pledge its Common Shares to the Company; and
WHEREAS, as an additional inducement for the Company to grant the loan,
the Pledgor has agreed, Company a security interest in the Common Shares and any
proceeds thereof to secure the loan pursuant to this Pledge Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions, hereinafter set forth and for other good and valuable consideration,
the receipt and adequacy of which is hereby expressly acknowledged, the parties
hereto agree as follows:
(a) INDEBTEDNESS SECURED. This Pledge Agreement is executed to secure
the indebtedness of the Pledgor to the Company.
(b) PLEDGE OF COLLATERAL. The Pledgor hereby pledges, assigns,
transfers, sets over, delivers and grants to the Company, subject to Section 4,
a first priority security interest in and to the Common Shares and any proceeds
thereof including, without limitation, any and all dividends (other than
dividends for taxes), cash, instruments and other property from time to time
received, receivable, or otherwise distributed in respect of, or in exchange
for, any of the Common Shares (such proceeds and the Common Shares are
collectively, the "Collateral"). Pledgor is delivering the Common Shares to the
Company, for the purpose of holding said Common Shares as pledge holder pursuant
to the terms of this Pledge Agreement. The Company shall have no right in and to
the Collateral except as provided in this Pledge Agreement, and the Company
shall not have any right to encumber or dispose of the Collateral except in
accordance with the provisions of this Pledge Agreement.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. Pledgor hereby represents
to the Company as follows: (i) the Pledgor has the capacity to enter into this
Pledge Agreement and to pledge the Common Shares to the Company hereunder, (ii)
Pledgor owns the Common Shares free and clear of any and all liens, charges,
encumbrances and security interests thereon, (iii) the Common Shares are validly
issued, fully paid and non-assessable, and (iv) no authorization, approval, or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required either (a) for the pledge by the Pledgor of the
Common Shares pursuant to this Pledge Agreement or for the execution, delivery
or performance of this Pledge Agreement by the Pledgor, or (b) for the exercise
by the Company of the rights provided for in this Pledge Agreement or the
remedies in respect of the Common Shares pursuant to this Pledge Agreement
(except as may be required in connection with such disposition by laws affecting
the offering and sale of securities generally). Pledgor also represents that
Pledgor is solvent at the time of the execution of this Agreement and that
Page 2
Pledgor is benefitting from the Pledge; and that it has received reasonable
equivalent value for pledging the shares as security for the Loan from the
Company to the Pledgor.
2. DIVIDEND AND VOTING RIGHTS. So long as no Default (as defined
herein) has occurred and is continuing, the Common Shares shall be treated as
stock of the Pledgor, and the Pledgor shall be entitled to vote such shares and
to receive all dividends and distributions thereon.
3. ADJUSTMENTS. In the event that, during the term of this Pledge
Agreement, any stock dividend, reclassification, readjustment, or other change
is declared or made in the capital structure of the Company, all new,
substituted, and additional shares, or other securities, issued in respect of
the Common Shares by reason of any such change shall be held by the Company,
subject to the lien of this Pledge Agreement and under the terms of this Pledge
Agreement in the same manner as the Common Shares pledged hereunder.
4. PAYMENT OF INDEBTEDNESS. Upon payment of the principal and interest
of the indebtedness, the Company shall execute and deliver a confirmation of the
termination of this Pledge Agreement and the Common Shares shall be returned to
the Pledgor. Upon full payment of the principal and interest of the
indebtedness, this Pledge Agreement shall become null and void.
5. DEFAULT. Upon the occurrence of each of the following events, the
Company shall be entitled to effect the immediate repayment of all sums that are
and/or shall be owed in any manner whatsoever by the Pledgor to the Company and
such sums shall bear interest at the Maximum Interest Rate prevailing, from the
date that such event has occurred until total repayment by the Pledgor:
(a) If, on due date, the Pledgor has not paid any
principal or interest or expenses including any
levies, taxes and fees or any other sums.
(b) If the Pledgor breaches or fails to uphold any of the
terms contained in this
Page 3
or any other document or deed that has been or shall
be signed on his behalf or it becomes evident that
any of the declarations that have been or shall be
made on behalf of the Pledgor in this or any other
document is incorrect, or inaccurate.
(c) If a petition is filed requesting the appointment of
a temporary or permanent receiver, or a temporary or
permanent receiver or manager, or a Receiving Order
against the Pledgor is issued over the assets of the
Pledgor and/or Pledgor or any portion of the assets
of the Pledgor.
(d) If a temporary or permanent receiver or receiver and
manager for all or any portion of the assets of the
Pledgor is appointed.
(e) If any competent court in Maryland or Florida or
elsewhere institutes attachments or execution or any
like proceedings against any portion of the assets of
the Borrower or if attachment or execution or any
like proceedings are instituted over all or any
portion of the Collateral which has been or shall be
furnished to the Company.
(f) If the Company, at its absolute discretion, deems
that since the signing of this Agreement a change has
occurred in the condition of the Pledgor to which the
Company had not given its prior written consent.
Without derogating from the generally of the
foregoing, the following acts shall be deemed to
constitute a change in the condition of the Pledgor:
(i) a voluntary or other transfer of shares (except
the transfer of shares by succession) which
affect or are likely to affect the condition of
the Pledgor.
Page 4
(g) If the Borrower ceases to pay debts or manage its
affairs or reaches a compromise or arrangement
with its creditors.
(h) If the Company, at its discretion, deems that
some event occurred that has or might impair the
financial position of the Pledgor.
In addition to all remedies provided herein and according to law, the
Company shall have the following remedies:
PRIVATE SALES: (a) The Pledgor recognizes that the Company may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for an investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and, not
withstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Company shall
be under no obligation to delay a sale of any of the Pledged Stock for the
period of time necessary to permit the Issuer thereof to register such
securities for the public sale under the Securities Act, or under applicable
state securities laws, even if such Issuer would agree to do so.
(b) The Pledgor further agrees to use commercially reasonable
efforts to do so or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Stock pursuant to
this Section valid and binding and in compliance with any and all other
applicable requirements of law.
6. NOTICES. All notices, requests, demands or other communications
which are required
Page 7
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given when they are made by facsimile and shall be deemed to be
sufficient made if addressed as follows:
If to the Pledgor: Xxxxx Xxxxxx
0000 XX Xxxxx Xxxxxxx Xxxxx Xxxxx 000
Xxxxx Xxxxx Xxxxx, XX 00000
Phone 000-000-0000
Facsimile 305-947-1734
with a copy to: Xxxx X. Xxxxxx, Esquire
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxxxxxxx, XX 00000
Phone 000-000-0000
Facsimile 000-000-0000
If to the Company Equity One, Inc.
Attention: Xxxxx Xxxxxxx
0000 XX Xxxxx Xxxxxxx Xxxxx Xxxxx 000
Xxxxx Xxxxx Xxxxx, XX 00000
Phone 000-000-0000
Facsimile 305-947-1734
with a copy to: Xxxx X. Xxxxxx, Esquire
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxxxxxxx, XX 00000
Phone 000-000-0000
Facsimile 000-000-0000
and any such facsimile properly addressed and sent shall be deemed to have been
received within twelve (12) hours after the time of sending. In addition, all
notices shall also be sent by courier or messenger, although failure to do so
shall not invalidate the facsimile notice.
7. GOVERNING LAW AND JURISDICTION. This Pledge Agreement shall be
governed by and construed in accordance with the laws of the State of Florida.
8. VENUE. The parties hereby select the Miami Dade County as the place
of jurisdiction for any legal proceeding arising pursuant to this Pledge
Agreement.
IN WITNESS WHEREOF, this Pledge Agreement has been duly executed on the
day and year first written above.
Page 6
PLEDGOR:
/s/ XXXXX XXXXXX
----------------
XXXXX XXXXXX
EQUITY ONE, INC.,
A Maryland Corporation
By: /s/ XXXXX XXXXXX
-------------------------------
XXXXX XXXXXX, President
STATE OF FLORIDA
COUNTY OF MIAMI DADE
I HEREBY CERTIFY that on this day personally appeared before me, an
officer duly authorized to administer oaths and take acknowledgments, XXXXX
XXXXXX, ( X ) known to me to be the person described in or ( ) who produced
____________________________ as identification, and who executed the foregoing
instrument, and acknowledged before me that he executed the same.
WITNESS my hand and official seal, this 4th day of December, 2001.
/s/ XXXXX -XXXXX CARRIES
-------------------------------
(Notary Seal)
(NOTARY PUBLIC GRAPHIC)
My commission expires:
STATE OF FLORIDA
COUNTY OF MIAMI DADE
I HEREBY CERTIFY that on this day personally appeared before me, an
officer duly authorized to administer oaths and take acknowledgments, XXXXX
XXXXXX, President of EQUITY ONE, INC.( ) known to me to be the person described
in or ( ) who produced ____________________________ as identification, and who
executed the foregoing instrument, and acknowledged before me that he executed
the same.
WITNESS my hand and official seal, this 4th day of December, 2001.
/s/ XXXXX -XXXXX CARRIES
-------------------------------
(Notary Seal)
(NOTARY PUBLIC GRAPHIC)
My commission expires:
Page 7
