REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
Execution
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of the 9th day of
March, 2010, by and among Equity One, Inc., a Maryland corporation (the “Company”), and MGN America
LLC, a Delaware limited liability company, and Silver Maple (2001), Inc., a Nevada corporation
(each a “Purchaser” and, collectively with each other and any permitted assignee hereunder, the
“Purchasers”).
RECITALS
A. Concurrently with the execution hereof, the Company and each of the Purchasers are entering
into certain Common Stock Purchase Agreements of even date herewith (the “Stock Purchase
Agreements”) for the sale by the Company and the purchase by the Purchasers of not more than an
aggregate of 600,000 shares as set forth in the Stock Purchase Agreements (the “Shares”) of the
Company’s Common Stock, par value $.01 per share (the “Common Stock”).
B. In order to induce the Purchasers to enter into the Stock Purchase Agreements, the Company
agrees that this Agreement shall govern the rights of the Purchasers to cause the Company to
register the Shares.
THE PARTIES HEREBY AGREE AS FOLLOWS:
AGREEMENT
1. Certain Definitions.
(a) The term “Act” means the Securities Act of 1933, as amended.
(b) The term “Closing Date” means the Closing Date as defined in the Stock Purchase
Agreements.
(c) The term “Form S-3” means such form under the Act as in effect on the date hereof or any
successor registration form under the Act subsequently adopted by the SEC.
(d) The term “Purchasers” means the persons named on Schedule I hereto and any permitted
assignee of any Purchaser’s rights hereunder in accordance with Section 2.9 hereof.
(e) The term “1934 Act” means the Securities Exchange Act of 1934, as amended.
(f) The term “register,” “registered,” and “registration” refer to a registration effected by
preparing and filing a registration statement or similar document in
compliance with the Act, and the declaration or ordering of effectiveness of such registration
statement or document.
(g) The term “Registrable Securities” means (i) the Shares issued pursuant to the Stock
Purchase Agreements and (ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for or in replacement of, the Shares referenced
in (i) above, excluding in all cases, however, any Registrable Securities sold by a person in a
transaction in which such person’s rights under Section 2 hereof are not assigned.
(h) The term “SEC” means the Securities and Exchange Commission.
(i) The term “Shares” has the meaning set forth in Recital A.
2. Registration Rights. The Company covenants and agrees as follows:
2.1 Request for Registration.
(a) If the Company shall receive at any time after 6 months after the Closing Date, a written
request (a “Request”) from Purchasers holding not less than 500,000 Shares (the “Initiating
Purchasers”) that the Company file a registration statement under the Act for a public offering,
then the Company shall:
(i) within ten (10) days of the receipt thereof, give written notice of such request to all
other Purchasers; and
(ii) effect as soon as practicable, and in any event within forty-five (45) days of the
receipt of such Request, the filing of a registration statement under the Act covering all
Registrable Securities which the Purchasers request to be registered within twenty (20) days of the
mailing of such notice by the Company (a “Demand Registration”);
provided, however, that (i) the Company shall be obligated under this Section 2.1
to effect no more than two Demand Registrations, provided that a registration shall not
count toward such limit if any such Demand Registration was not declared and ordered effective by
the SEC; and (ii) a bona fide pledgee of a Purchaser’s Shares (a “Bona Fide Pledgee”) desiring to
sell Shares for the account of such Bona Fide Pledgee upon default in respect of such Purchaser’s
obligations to such Bona Fide Pledgee shall be entitled to request a Demand Registration to permit
the resale of such Shares without regard to the expiration of the 6 month period set forth above
unless the number of Shares to be sold by such Bona Fide Pledgee may be disposed of without
limitation as to amount pursuant to Rule 144 under the Act.
(b) If the Initiating Purchasers intend to distribute the Registrable Securities covered by
their request by means of an underwriting, (i) they shall so advise the Company as a part of their
Request made pursuant to Subsection 2.1(a) and the Company shall include such information in the
written notice referred to in Subsection 2.1(a)(i) above and (ii)
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the underwriter shall be selected by the Company after consultation with the Initiating Purchasers and shall be reasonably acceptable
to a majority in interest of the Initiating Purchasers. The right of any Purchaser to include
Registrable Securities in such registration shall be conditioned upon such Purchaser’s
participation in such underwriting and the inclusion of such Purchaser’s Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating
Purchasers and such Purchaser) to the extent provided herein. All Purchasers proposing to
distribute their securities through such underwriting shall (together with the Company as provided
in Subsection 2.3(e)) enter into an underwriting agreement in customary form with the underwriter
or underwriters selected for such underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to Purchasers requesting a
registration statement pursuant to this Section 2.1, a certificate signed by the Chief Executive
Officer of the Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be materially detrimental to the Company and its shareholders for such
registration statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action with respect to
such filing after receipt of the request of the Initiating Purchasers; provided, however, that the
Company may not exercise such deferral right for more than one hundred twenty (120) days in any 12
month period. Upon the earlier of the expiration of any such deferral period and the Board of
Directors’ good faith determination that such deferral is no longer required, the Company shall
promptly file such registration statement in accordance with the terms of this Agreement.
(d) In addition, the Company shall not be obligated to effect any registration pursuant to
this Section 2.1 during the period starting with the date 45 days prior to the Company’s good faith
estimate of the date of filing of a registration statement subject to Section 2.2 hereof, and
ending on a date that is the earlier of one hundred eighty (180) days after the effective date of
such registration statement and thirty (30) days after the completion of the sale of the securities
registered pursuant to such registration statement, provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration statement to become
effective.
2.2 Company Registration. If the Company proposes to register (including for this
purpose a registration effected by the Company for shareholders other than the Purchasers) any of
its stock or other equity securities under the Act in connection with the underwritten public
offering of such securities solely for cash, other than registrations on Form S-8 or S-4 (or any
successor forms) or registrations in connection with dividend reinvestment plans and stock purchase
plans, then the Company shall, at such time, promptly give each Purchaser written notice of such
registration. Upon the written request of each Purchaser given within twenty (20) days after
mailing of such notice by the Company in accordance with Section 3.5, the Company shall, subject to
the provisions of Section 2.6, cause to be registered under the Act all of the Registrable
Securities that each such Purchaser has requested to be registered.
2.3 Obligations of the Company. Whenever required under this Section 2 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
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(a) Prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use its reasonable best efforts to cause such registration statement to become
effective, and keep such registration statement effective for a period of up to one hundred eighty
(180) days or, if earlier, until the distribution contemplated in the registration statement has
been completed; provided, however, that (i) such 180-day period shall be extended
for a period of time equal to the period the Purchaser refrains from selling any securities
included in such registration at the request of an underwriter of Common Stock (or other
securities) of the Company or at the request of the Company pursuant to Subsection (iii) below,
(ii) in the case of any registration of Registrable Securities on Form S-3 which are intended to be
offered on a continuous or delayed basis, such 180-day period shall be extended, if necessary, to
keep the registration statement effective until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (I) includes any prospectus required by Section 10(a)(3) of the Act
or (II) reflects facts or events representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by reference of information required to
be included in (I) and (II) above to be contained in periodic reports filed pursuant to Section 13
or 15(d) of the 1934 Act in the registration statement, and (iii) the Company shall not be required
to keep such registration statement effective during a period not to exceed ninety (90) consecutive
days, not more than once in any 12-month period, in which it is determined by the Board of
Directors in good faith that there exists material non-public information regarding the Company.
(b) Timely prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Purchasers such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Act, and such other documents as the
Purchasers may reasonably request in order to facilitate the disposition of Registrable Securities
owned by them.
(d) Use its best efforts to register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Purchasers; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions unless the Company is already subject to
service in such jurisdiction and except as may be required by the Act.
(e) Enter into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering.
Each Purchaser participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Purchaser holding Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto is required to be
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delivered under the Act of the happening of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and at the request of any such
Purchaser, timely prepare and furnish to such Purchaser a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchaser of such shares, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading or incomplete in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered pursuant hereunder to be listed on each
securities exchange on which similar securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the
effective date of such registration statement.
(i) Use its best efforts to furnish, at the request of any Purchaser requesting registration
of Registrable Securities pursuant to this Section 2, on the date that such Registrable Securities
are delivered to the underwriters for sale in connection with a registration pursuant to this
Section 2, if such securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the
Purchasers requesting registration of Registrable Securities, and (ii) “comfort” letters signed by
the Company’s independent public accountants who have examined and reported on the Company’s
financial statements included in the registration statement, to the extent permitted by the
standards of the AICPA or other relevant authorities, covering substantially the same matters with
respect to the registration statement (and the prospectus included therein) and (in the case of the
accountants’ “comfort” letters, with respect to events subsequent to the date of the financial
statements) as are customarily covered in opinions of issuer’s counsel and in accountants’
“comfort” letters delivered to the underwriters in underwritten public offerings of securities.
(j) Make available for inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any attorney or
accountant retained by any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company’s officers and directors
to supply all information reasonably requested by any such
seller, underwriter, attorney or accountant in connection with establishing a defense under
Section 11 of the Act with respect to such registration statement; provided, however, that such
seller, underwriter, attorney or accountant shall agree to hold in confidence and trust all
information so provided until such information becomes publicly available (other than as a result
of a violation of such obligation of confidentiality).
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2.4 Furnish Information. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of
any selling Purchaser that such Purchaser shall furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such Purchaser’s Registrable
Securities.
2.5 Expenses of Registrations. The Company shall bear and pay all expenses, other
than underwriting discounts, brokers’ commissions and the like, incurred in connection with any
registration, filing or qualification pursuant to this Section 2, including (without limitation)
all registration, filing and qualification fees, printers’ and accounting fees relating or
apportionable thereto, and the fees and disbursements of counsel for the Company. The Purchasers
shall be responsible for all underwriting discounts, brokers’ commissions and the like with respect
to their respective Shares and any other fees and expenses incurred by them or on their behalf
(including, without limitation, fees and expenses of their own counsel and advisors).
2.6 Underwriting Requirements. In connection with any offering involving an
underwriting of shares of the Company’s capital stock, the Company shall not be required under
Section 2.2 to include any of Purchaser’ securities in such underwriting unless such Purchaser
accepts the terms of the underwriting as agreed upon between the Company and the underwriters
selected by it (or by other persons entitled to select the underwriters). If the total amount of
securities, including Registrable Securities, requested by shareholders to be included in such
offering pursuant to Section 2.2 exceeds the maximum amount of securities that the underwriters
determine in their sole discretion will not jeopardize the success of the offering by the Company,
then the Company shall be required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters determine in their sole discretion, will
not jeopardize the success of the offering (the securities so included to be apportioned pro rata
among the selling shareholders according to the total amount of securities entitled to be included
therein owned by each selling shareholder or in such other proportions if mutually agreed to by
such selling shareholders).
2.7 Delay of Registration. No Purchaser shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or implementation of this Section 2;
provided that this Section 2.7 shall not abrogate any other rights or remedies of any such
Purchaser hereunder.
2.8 Indemnification. In the event any Registrable Securities are included in a
registration statement under this Section 2:
(a) To the extent permitted by law, the Company will indemnify and hold harmless each
Purchaser, any underwriter (as defined in the Act) for such Purchaser and each person, if any, who
controls such Purchaser or such Purchaser’s securities or such underwriter within the meaning of
the Act or the 1934 Act, and each officer, director, agent, employee and partner of the foregoing
against any losses, claims, damages or liabilities (joint or several) to which they may become
subject insofar as such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements,
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omissions or violations (collectively a “Violation”): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto or any other document
prepared by the Company incident to such registration, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the Company of the Act, the
1934 Act, any state securities law or any rule or regulation promulgated under the Act, or the 1934
Act or any state securities law; and the Company will pay to each such indemnified person any legal
or other expenses reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Subsection 2.8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably withheld), nor shall
the Company be liable in any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with information furnished in writing expressly for use in connection with such
registration by such Purchaser, underwriter or controlling person.
(b) To the extent permitted by law, each selling Purchaser will indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of the Act, any underwriter and
any controlling person of any such underwriter, against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing persons may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with information furnished in writing by such Purchaser expressly
for use in connection with such registration, and each such Purchaser will pay to each such
indemnified party any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this Subsection 2.8(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Purchaser, which consent shall not be
unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this Section 2.8 of notice of the
commencement of any action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this Section 2.8,
deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying
party shall have the right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other indemnified
parties which may be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to deliver written notice
to the indemnifying party within
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a reasonable time of receipt of notice of any such action, if
prejudicial to its ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 2.8, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 2.8. No indemnifying party, in the defense of
any claim or litigation, shall, except with the consent of each indemnified party, consent to entry
of any judgment or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. Each indemnified party shall furnish such
information regarding itself or the claim in question as an indemnifying party may reasonably
request in writing and as shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) If the indemnification provided for in this Section 2.8 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim,
damage or expense referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions that resulted in such
loss, liability, claim, damage or expense as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the indemnifying party
or by the indemnified party and the parties’ relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) The obligations of the Company and Purchasers under this Section 2.8 shall survive the
completion of any offering of Registrable Securities in a registration statement under this Section
2, and otherwise.
(f) Notwithstanding the foregoing, except to the extent set forth herein with respect to
indemnification of the Company to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with an
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
2.9 Assignment of Registration Rights. The rights to cause the Company to register
Registrable Securities pursuant to this Section 2 may be assigned (but only with all related
obligations) by a Purchaser to a Bona Fide Pledgee, provided: (a) the Company is, within a
reasonable time after such transfer, furnished with written notice of the name and address of
such Bona Fide Pledgee and the securities with respect to which such registration rights are
being assigned; (b) such Bona Fide Pledgee agrees in writing to be bound by and subject to the
terms and conditions of this Agreement; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities by the Bona Fide
Pledgee is restricted as to amount or manner of sale under the Act.
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2.10 “Market Stand-Off” Agreement. The Company and each of the Purchasers hereby
agrees that, during the period of duration specified by the Company and an underwriter of Common
Stock or other securities of the Company, following the date of the first sale to the public
pursuant to a registration statement of the Company filed under the Act, it shall not, to the
extent requested by the Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except Common Stock included in
such registration; provided, however, that:
(a) all executive officers and directors of the Company and each other person who holds five
percent (5%) or more of the then outstanding Common Stock (assuming the conversion of the Preferred
Shares), enter into similar agreements;
(b) such market stand-off time period shall not exceed ninety (90) days; and
(c) any discretionary waiver or termination of the market stand-off period by the Company or
the representatives of the underwriters shall apply to all persons subject to such market stand-off
agreement on a pro rata basis.
In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions
with respect to the Registrable Securities of the Purchasers (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.
2.11 Termination of Registration Rights. The right of any Purchaser to request
registration or inclusion in any registration pursuant to Section 2.1 or 2.2 shall terminate if all
shares of Registrable Securities held by such Purchaser and its Affiliates may immediately be sold
under Rule 144 during any 90-day period.
3. Miscellaneous.
3.1 Successors and Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties (including transferees of any shares of Registrable
Securities). Nothing in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement. A Purchaser may assign its rights hereunder only to a Bona Fide Pledgee in
accordance with Section 2.9 above.
3.2 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida without regard to its conflict of laws principles to the
extent that such principles would require the application of laws other than the laws of the State
of Florida. Venue for any action brought hereunder shall be in Miami-Dade County, Florida and the
parties hereto waive any claim that such forum is inconvenient.
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3.3 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Such counterparts may be delivered by telecopy or other electronic means.
3.4 Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
3.5 Notices. Any notice or other communication required or permitted hereunder shall
be sufficiently given if delivered in person or sent by telecopy or by a national overnight courier
service, postage prepaid, addressed as follows: if to the Company, addressed to Equity
One, Inc. 0000 X.X. Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000, telecopy number
305-947-1664, Attention: President, with a copy to its counsel, Xxxxxxxxx Xxxxxxx, P.A., 0000
Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, telecopy number 305-579-0717, Attention: Xxx X. Xxxxxx,
Esq.; if to the Purchaser, addressed as specified on the signature page to the Stock
Purchase Agreement; or such other address or number as shall be furnished in writing by any such
party, and such notice or communication shall be deemed to have been given as of the date so
delivered by telecopier, telex or mail.
3.6 Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written consent of the Company
and the holders of a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this section shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such Registrable Securities, and
the Company.
3.7 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
3.8 Aggregation of Stock. All shares of Registrable Securities held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
3.9 Entire Agreement; Waiver. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement among the parties with
regard to the subjects hereof and thereof, and supersede any previous agreement or
understanding between or among the parties with respect to such subjects, including, without
limitation, the Prior Agreement.
3.10 Dispute Resolution. If the parties should have a material dispute arising out of
or relating to this Agreement or the parties’ respective rights and duties hereunder, then the
parties will resolve such dispute in the following manner: (i) any party may at any time deliver
to the others a written notice setting forth a brief description of the issue for which such
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notice initiates the dispute resolution mechanism contemplated by this Section 3.10; (ii) during the
forty-five (45) day period following the delivery of the notice described in Section 3.10(i) above,
appropriate representatives of the various parties will meet and seek to resolve the disputed issue
through negotiation then within thirty (30) days after the period described in Section 3.10(ii)
above, the parties will refer the issue (to the exclusion of a court of law) to final and binding
arbitration in Miami, Florida in accordance with the then existing rules (the “Rules”) of the
American Arbitration Association (“AAA”), and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof; provided, however, that the law applicable
to any controversy shall be the law of the State of Florida, regardless of principles of conflicts
of laws. In any arbitration pursuant to this Agreement, (i) discovery shall be allowed and
governed by the Florida Code of Civil Procedure and (ii) the award or decision shall be rendered by
a majority of the members of a Board of Arbitration consisting of three (3) members with experience
in securities transactions, one of whom shall be appointed by each of the respective parties and
the third of whom shall be the chairman of the panel and be appointed by mutual agreement of said
two party-appointed arbitrators. In the event of failure of said two arbitrators to agree within
sixty (60) days after the commencement of the arbitration proceeding upon the appointment of the
third arbitrator, the third arbitrator shall be appointed by the AAA in accordance with the Rules.
In the event that either party shall fail to appoint an arbitrator within thirty (30) days after
the commencement of the arbitration proceedings, such arbitrator and the third arbitrator shall be
appointed by the AAA in accordance with the Rules. Nothing set forth above shall be interpreted to
prevent the parties from agreeing in writing to submit any dispute to a single arbitrator in lieu
of a three (3) member Board of Arbitration. Upon the selection of the Board of Arbitration (or if
the parties agree otherwise in writing, a single arbitrator), an award or decision shall be
rendered within in more than forty-five (45) days. Notwithstanding the foregoing, the request by
either party for preliminary or permanent injunctive relief, whether prohibitive or mandatory,
shall not be subject to arbitration and may be adjudicated only by the courts of the State of
Florida or the U.S. District Court in Florida.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
|
EQUITY ONE, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President, General Counsel and Secretary |
|||
| PURCHASERS: MGN America LLC |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Its Managers | ||||
|
Address: 0000 XX Xxxxx Xxxxxxx Xxxxx Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000 Telecopy No.: ______________________________ |
||||
| Silver Maple (2001), Inc. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Its: Chief Executive Officer | ||||
|
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, XX X0X 0X0 Telecopy No.: ______________________________ |
||||
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