Exhibit 99.3
EQUITY ONE, INC.
REGISTRATION RIGHTS AGREEMENT
October 28, 2002
REGISTRATION RIGHTS AGREEMEN
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the
28th day of October, 2002, by and among Equity One, Inc., a Maryland corporation
(the "Company"), and the Purchasers listed on Schedule I hereto (each, a
"Purchaser" and collectively, the "Purchasers").
RECITALS
A. Concurrently with the execution hereof, the Company and the Purchasers
are entering into that certain Common Stock Purchase Agreement of even date
herewith (the "Stock Purchase Agreement") for the sale by the Company and the
purchase by the Purchasers of up to an aggregate of 6,911,000 shares (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
Agreement, 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 Initial Closing Date as defined in
the Stock Purchase Agreement.
(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 Agreement and (ii) any Common Stock of the Company issued
as
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(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 1 million 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 initiated by each
Purchaser (counted together with its assignees), 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) 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
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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 for a period of not more than six months after
receipt of the request of the Initiating Purchasers but, upon the earlier of the
expiration of such six month 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, and ending on a date one hundred eighty (180) days after the effective date
of, a registration subject to Section 2.2 hereof, 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:
(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
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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 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
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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).
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
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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, 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
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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 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
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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.
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,
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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.
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.
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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. 1696 N.E. Miami
Gardens Drive, North Miami Beach, Florida 33179, telecopy number 305-947-1664,
Attention: President, with a copy to its counsel, Greenberg Traurig, P.A., 1221
Brickell Avenue, Miami, Florida 33131, telecopy number 305-579-0717, Attention:
Ira N. Rosner, Esq.; if to any Purchaser, addressed as specified on Schedule I
hereto; 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 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
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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.
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EQUITY ONE, INC.
By: /s/ Chaim Katzman
------------------------------------
PURCHASERS:
Silver Maple (2001), Inc.
By: /s/ Chaim Katzman
------------------------------------
M.G.N. (USA), Inc.
By:/s/ Chaim Katzman
-------------------------------------
AH Investments US, L.P.
By: AH Holdings US, Inc.
its General Partner
By: /s/ Steven Glusband
--------------------------------
12
SCHEDULE I
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Purchasers Address
- ---------- -------
Silver Maple (2001), Inc. c/o Equity One, Inc.
1696 N.E. Miami Gardens Drive
North Miami Beach, Florida 33179
M.G.N. (USA), Inc. c/o Equity One, Inc.
1696 N.E. Miami Gardens Drive
North Miami Beach, Florida 33179
A-H Investements US, L.P. c/o Carter, Ledyard & Milburn
2 Wall Street
New York, NY 10005