-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KhD+vdQ7pX0bfJ50WNqMPAfkG7e1xhLC3VA3h6t49hDhA4tfFTLA6yw7jH2gz3WG 8jTc4izljJTkk+dlKcOGUg== 0000950123-10-056329.txt : 20100607 0000950123-10-056329.hdr.sgml : 20100607 20100607165334 ACCESSION NUMBER: 0000950123-10-056329 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20100607 DATE AS OF CHANGE: 20100607 GROUP MEMBERS: CHAIM KATZMAN GROUP MEMBERS: FICUS, INC. GROUP MEMBERS: GAZIT (1995), INC. GROUP MEMBERS: GAZIT AMERICA, INC. GROUP MEMBERS: GAZIT CANADA, INC. GROUP MEMBERS: GAZIT-GLOBE LTD. GROUP MEMBERS: HOLLYWOOD PROPERTIES LTD. GROUP MEMBERS: M G N (USA) INC. GROUP MEMBERS: MGN AMERICA, LLC GROUP MEMBERS: SILVER MAPLE (2001), INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EQUITY ONE, INC. CENTRAL INDEX KEY: 0001042810 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 521794271 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-54975 FILM NUMBER: 10881849 BUSINESS ADDRESS: STREET 1: 1600 N E MIAMI GARDENS DRIVE CITY: NORTH MIAMI BEACH STATE: FL ZIP: 33179 BUSINESS PHONE: 305-947-1664 MAIL ADDRESS: STREET 1: 1600 N E MIAMI GARDENS DRIVE CITY: NORTH MIAMI BEACH STATE: FL ZIP: 33179 FORMER COMPANY: FORMER CONFORMED NAME: EQUITY ONE INC DATE OF NAME CHANGE: 19970723 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Gazit-Globe Ltd CENTRAL INDEX KEY: 0001379009 IRS NUMBER: 000000000 STATE OF INCORPORATION: L3 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1 HASHALOM ST. CITY: TEL-AVIV STATE: L3 ZIP: 67892 BUSINESS PHONE: (212) 305-944-7988 MAIL ADDRESS: STREET 1: 1660 NE MIAMI GARDENS DRIVE, SUITE 1 CITY: NORTH MIAMI BEACH STATE: FL ZIP: 33179 SC 13D/A 1 c02095sc13dza.htm SC 13D/A SC 13D/A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 13 )*

Equity One, Inc.
(Name of Issuer)
Common Stock, $0.01 Par Value Per Share
(Title of Class of Securities)
294752100
(CUSIP Number)
Mark Schonberger, Esq.
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
(212) 318-6000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 23, 2010
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 
 

 

                     
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Explanatory Note: This Amendment No. 13 (this “Amendment”) to the Schedule 13D of Chaim Katzman, Gazit-Globe Ltd. (“Gazit”), M G N (USA) INC. (“MGN”), GAZIT (1995), INC. (“1995”), MGN America, LLC (“America”), Hollywood Properties Ltd. (“Hollywood”), Gazit Canada, Inc. (“GCI”), Gazit America, Inc. (“GAA”), Silver Maple (2001), Inc. (“Silver Maple”) and Ficus, Inc. (“Ficus”) (collectively, the “Gazit Group,” “we,” “us” or the “Reporting Persons”) filed on October 10, 2001 (the “Initial 13D”) relates to the Common Stock, par value $0.01 each (“Shares”) of Equity One, Inc., a Maryland corporation (the “Issuer” or “Equity One”). The Initial 13D, together with Amendment No. 1 to the Initial 13D, filed February 26, 2003, Amendment No. 2 to the Initial 13D, filed July 31, 2007, Amendment No. 3 to the Initial 13D, filed August 8, 2007, Amendment No. 4 to the Initial 13D, filed January 18, 2008, Amendment No. 5 to the Initial 13D, filed July 8, 2008, Amendment No. 6 to the Initial 13D, filed October 14, 2008, Amendment No. 7 to the Initial 13D, filed October 24, 2008, Amendment No. 8 to the Initial 13D, filed November 4, 2008, Amendment No. 9 to the Initial 13D, filed November 13, 2008, Amendment No. 10 to the Initial 13D, filed April 24, 2009, Amendment No. 11 to the Initial 13D, filed August 14, 2009, Amendment No. 12 to the Initial 13D, filed March 29, 2010, and this Amendment No. 13 shall be collectively referred to herein as the “Schedule 13D.”
This Amendment No. 13 reflects the following changes related to (i) the agreements entered into by the Gazit Group in connection with the Contribution Agreement entered into by Equity One with Liberty International Holdings Limited, a private company limited by shares organized under the laws of England and Wales (“LIH”), and Capital Shopping Centres plc, a public limited company organized under the laws of England and Wales (“Parent”) (the “Contribution Agreement”), pursuant to which the Equity One will acquire a majority ownership interest in C&C (US) No. 1, Inc., a Delaware corporation, through a joint venture with LIH (all as more fully described in Equity One’s Current Report on Form 8-K filed on May 27, 2010 (the “Liberty Transaction”)); and (ii) certain other agreements relating to the Gazit Group’s ownership of Shares in Equity One:
  •   Equityholders Agreement (the “Liberty Equityholders Agreement”), dated as of May 23, 2010, by and among Equity One, Parent, LIH, Gazit, MGN, 1995, America, Silver Maple and Ficus (collectively, Gazit, 1995, MGN, America, Silver Maple, Ficus, Chaim Katzman and any of their respective controlled affiliates are known as the “GG Group”).
 
  •   Intercompany Agreement (the “Intercompany Agreement”), dated as of May 23, 2010, by and among Gazit, MGN, 1995, America, Silver Maple, Ficus and GAA.
 
  •   Ownership limits waivers (the “Ownership Limits Waivers”), dated as of May 23, 2010, for the benefit of GG (as defined herein), the Qualified Lenders and the Gazit Group Shareholders (each as defined in the Ownership Limits Waivers), by the board of directors of Equity One.
 
  •   Undertaking dated as of May 23, 2003 (the “Undertaking”) by Chaim Katzman with respect to voting his Shares in favor of Equity One directors supported by Gazit and its subsidiaries (the “Gazit Entities”).

 

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Item 6.   Contracts, Arrangements, Understandings, or Relationships with Respect to Securities of the Issuer.
Item 6 is amended and restated in its entirety as follows:
There are no contracts, arrangements, understandings or relationships (legal or otherwise) among the members of the Gazit Group, or between any member of the Gazit Group and another person, with respect to any securities of the Issuer, including, but not limited to, the transfer or voting of any securities, finder’s fees, joint ventures, loan or option arrangements, put or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, except for the following: (1) that certain Stockholders Agreement dated as of October 4, 2000 (as amended and/or restated to date, the “Alony Stockholders Agreement”) among the Issuer, Alony Hetz Properties & Investments, Ltd., an Israeli corporation (“AHPI”), Gazit, MGN and 1995 (the “Gazit-Globe Group”); (2) the Liberty Equityholders Agreement; (3) the Intercompany Agreement; (4) the Ownership Limits Waivers; and (5) the Undertaking. The following summaries of the foregoing documents are qualified in their entirety by reference to the full text of the Liberty Equityholders Agreement, the Intercompany Agreement, the Ownership Limits Waivers, and the Undertaking, which are attached hereto as Exhibits 6, 7, 8 and 9 respectively.
1. Alony Stockholders Agreement
Pursuant to the terms of the Alony Stockholders Agreement, so long as AHPI owns (directly or indirectly) at least 3% of the Issuer’s total outstanding voting capital stock on a fully-diluted basis, AHPI is entitled to designate one nominee to the Board of Directors of the Issuer. In such event, each member of the Gazit-Globe Group has agreed, during the term of the Alony Stockholders Agreement, to vote all of its voting securities of the Issuer and to take all other necessary actions within its control so that such nominee is elected to the Board of Directors of the Issuer. In addition, so long as Gazit-Globe Group complies with its voting obligations with respect to the AHPI director nominee, AHPI (and its affiliates) will vote all of the voting capital stock of the Issuer that they own or acquire for nominees to the Board of Directors as directed by the Gazit-Globe Group. To the extent AHPI loses the right to designate a director by failing to meet the ownership requirements set forth above (and not remedying the same within the 60-day cure period), AHPI will irrevocably lose the right to designate a director for such position notwithstanding its later acquiring a sufficient interest to meet the ownership requirements.
The parties further agreed that for any period during which AHPI owns beneficially and/or of record, 3% or more of the Issuer’s total outstanding voting capital stock on a fully-diluted basis and the Gazit-Globe Group holds one-third of the Issuer’s voting common stock, AHPI may not, without the prior written consent of the Issuer’s Board of Directors: (i) directly or indirectly seek, or permit any person over whom or which AHPI has control (a “Controlled Person”) to seek or encourage or assist any associate, partner or affiliate of AHPI to seek representation on the Board of Directors of the Issuer or otherwise seek to participate in or influence the Issuer’s management, management decisions, operating policies, or governing corporate instruments; (ii) instigate or join in any attempt to change the Issuer’s management, management decisions, operating policies, governing corporate instruments or conduct of its business and affairs; (iii) solicit or permit any Controlled Person to solicit, or encourage or assist any associate, partner or affiliate of AHPI to solicit proxies with respect to any shares of

 

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Common Stock or other securities of the Issuer 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 AHPI to become a “participant,” in any “election contest” relating to the election of directors of the Issuer, 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); (iv) deposit, or permit any Controlled Person, or encourage or assist any associate, partner or affiliate of AHPI 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 AHPI to subject any Voting Securities to a voting or similar agreement; (v) take any action alone or in concert with any other person to acquire or affect the control of the Issuer or, directly or indirectly, participate in, or encourage the formation of, any group seeking to obtain or take control of the Issuer; or (vi) directly or indirectly seek to influence any of the Issuer’s contractual relationships, whether orally, in writing or otherwise (including, without limitation, the Issuer’s contractual relationships with its auditors, its investment bankers and its lenders).
AHPI is also subject to certain drag along rights in the event the Gazit-Globe Group intends to sell all of its 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 certain adjustments), provided that at such time the ownership interest of the Gazit-Globe Group in the Issuer will be equal to or greater than the ownership interest of AHPI and subject to the satisfaction of the following conditions: (i) upon the consummation of the proposed sale, AHPI will receive for each of its Shares being sold the same form of consideration and the same amount of consideration as the Gazit-Globe Group receives for each of their Shares being sold and (ii) if AHPI 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 AHPI is entitled upon exercise of such warrants. In addition, 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 Issuer’s outstanding stock), any of its Shares, AHPI has a tag along right to participate in such sale to a third party, on a pro-rata basis based upon the percentage of the 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 drag along rights and the tag along rights granted to AHPI are set forth in greater detail in Section 1 and 2, respectively of the Alony Stockholders Agreement listed as Exhibit 1 hereto.
The Alony Stockholders Agreement will terminate on the earlier of (i) the 90th consecutive day on which AHPI owns less than 3% of the Issuer’s total outstanding voting capital stock, on a fully-diluted basis, (ii) the 90th consecutive day on which the Gazit-Globe Group owns directly, and/or indirectly through any of its members’ subsidiaries, less than 20% of the Issuer’s total outstanding voting capital stock, on a fully diluted basis, and (iii) October 4, 2010.

 

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2. Liberty Equityholders Agreement
Pursuant to the terms of the Liberty Equityholders Agreement, each of LIH, Parent and any of their respective controlled affiliates (collectively, “Liberty Group”), have agreed to vote all Shares, not including the share of Class A Common Stock (“EQY Common Stock”) and the share of Class A Common Stock, par value $0.01 per share, of Equity One (“Class A Common Stock”) Beneficially Owned (as defined in the Liberty Equityholders Agreement) by any member of Liberty Group or over which it has the power to direct the vote, in favor of the election of each individual nominated to the Equity One Board of Directors to serve as a director of Equity One who is supported by the GG Group.
In addition, under certain circumstances, LIH has the right to nominate an LIH Director (as defined in the Liberty Equityholders Agreement) in which event each member of the GG Group has agreed to vote all EQY Common Stock Beneficially Owned by the GG Group or over which it has the power to direct the vote, in favor of the election of the LIH nominee to the Equity One Board of Directors approved by the board for so long as LIH has the right to nominate a director to the Equity One Board of Directors; provided, however, that as each member of the GG Group is only required to vote in favor of such approved LIH nominee if such LIH nominee is qualified to serve as a director of Equity One. Certain Section 16 reporting persons of Parent will be deemed qualified.
Further, pursuant to the standstill provisions of the Liberty Equityholders Agreement, LIH and the members of Liberty Group will: (i) with respect to Equity One or EQY Common Stock, not make, engage, vote in favor of or in any way participate in a hostile takeover or other similar action by way of tender offer, exchange offer, merger or other business combination, proxies, consents, voting agreements, change of management or otherwise, except in connection with any of the foregoing that is recommended or not opposed by the Equity One Board of Directors and that is not initiated by Liberty Group, provided, however, that the presence of the director designed by LIH on the Equity One Board of Directors will not violate the standstill provisions of the agreement, and notwithstanding the standstill provisions, such board member may vote and take such other actions as he or she determines is appropriate in accordance with the exercise of his or her duties as a director and provided further that any member of Liberty Group that any member of Liberty Group may abstain from voting on any matter described in the standstill provisions, and may tender shares of EQY Common Stock Beneficially Owned by such member in connection with any tender offer or exchange offer without violation of the standstill provisions; (ii) not, except as provided in Liberty Equityholders Agreement, seek representation on the Equity One Board of Directors; (iii) not initiate, propose, or otherwise “solicit” (as the term is used in the proxy rules of the U.S. Securities and Exchange Commission (the “Commission”)) stockholders of Equity One for the approval of stockholder proposals made to Equity One whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise, or cause or encourage or attempt to cause any other person to initiate any such stockholder proposal, regardless of its purpose; and (iv) not acquire any other securities issued by Equity One, or any securities exchangeable for EQY Common Stock or any other equity securities of Equity One, if in any such case immediately after the taking of such action Liberty Group would, in the aggregate, Beneficially Own in excess of the greater of (A) a number of

 

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shares of voting stock of Equity One equal to 19.9% of the shares of Equity One that are outstanding as of the closing or (B) 15% of the EQY Common Stock outstanding on a Fully Diluted Basis (as defined in the Liberty Equityholders Agreement) from time to time, which Ownership Cap will automatically be reduced from time to time, if Liberty Group sells any EQY Common Stock, to a new Ownership Cap that is equal to Liberty Group’s then Beneficial Ownership percentage, in the aggregate, of the shares of EQY Common Stock then outstanding on a Fully Diluted Basis and Liberty Group may acquire shares in order to satisfy the ownership requirements in the agreement; provided, however, any acquisition of EQY Common Stock by Liberty Group in addition to those shares of EQY Common Stock acquired pursuant to the Subscription Agreement (as defined in the Liberty Equityholders Agreement) or issuable upon the redemption of EQY-CSC Class A Shares (as defined in the Liberty Equityholders Agreement) acquired by LIH at the closing may only be acquired through a U.S. controlled entity.
In order to facilitate these voting obligation and GG Group’s obligation (described below) to vote in favor of a proposed amendment to the Issuer’s charter, LIH and the GG Group executed an irrevocable proxy, which will terminate on the date Gazit’s and LIH’s respective voting obligations terminate pursuant to the Liberty Equityholders Agreement.
Pursuant to the Liberty Equityholders Agreement, GG Group has certain rights of first offer such that if a member of Liberty Group desires to sell a part of its EQY-CSC Class A Shares to a third party in an arm’s length transaction, this member must first offer to sell any such share to Equity One. At the same time the offer is delivered to Equity One, the member of Liberty Group will submit the offer to the GG Group, which will provide that if Equity One does not choose to purchase the shares, then the GG Group will have the right to do so. If Equity One chooses not to purchase the shares during the specified period, then the GG Group will have the right to purchase the shares not purchased by Equity One.
The parties also agreed that if LIH desires to sell all or any part of (i) any shares of EQY Common Stock received in redemption for EQY-CSC Class A Shares, (ii) any shares of Equity One Common Stock received pursuant to the Subscription Agreement or (iii) the share of Class A Common Stock ((i), (ii), and (iii) collectively, the “EQY Shares”), LIH must first offer to sell the EQY Shares to the GG Group. Under certain circumstances, where the EQY Shares are being sold to an underwriter for public resale, certain procedures and restrictions, including those regarding price for the right of first offer to the GG Group, have been modified.
The rights of first offer granted to GG Group are set forth in greater detail in Section 3 of the Liberty Equityholders Agreement included as Exhibit 6 hereto.
LIH is entitled to certain tag along rights in the event that members of the GG Group intend to sell, in a bona fide arm’s length transaction with a third party, a number of shares of EQY Common Stock that would result in a “change of control” (as defined in the Liberty Equityholders Agreement), these members of the GG Group must permit Liberty Group to participate on a pro-rata basis based upon the GG Group’s and Liberty Group’s respective aggregate relative Beneficial Ownership of Equity One vis-à-vis one another until the Alony AHPI Stockholders Agreement is amended to permit Liberty Group and AHPI to participate on a pro-rata basis. The tag along rights granted to LIH are set forth in greater detail in Section 5.1 of the Liberty Equityholders Agreement listed as Exhibit 6 hereto.

 

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In addition, the GG Group has agreed to cause all EQY Common Stock Beneficially Owned by the GG Group or over which it has the power to direct the vote, to be voted in favor of the proposal to adopt the proposed amendment to the Equity One charter, as attached as an exhibit to the Liberty Equityholders Agreement.
Finally, the Liberty Equityholders Agreement, and the rights and obligations that it entails, may not be assigned by any party without the prior consent of the other parties, provided, however, that (i) the GG Group may assign this agreement in connection with the pledge of any Pledged Shares (as defined in the Liberty Equityholders Agreement) to a commercial lending institution (unrelated to GG Group) that acquires Pledged Shares that represent 20% or more of the outstanding shares of the EQY Common Stock (a “Control Block”); and (ii) upon any subsequent sale of the Pledged Shares following a foreclosure, the rights of the GG Group under the Liberty Equityholders Agreement may be assigned to any entity or group that acquires a Control Block. The assignment of rights is further detailed in Section 8.4 of the Liberty Equityholders Agreement included as Exhibit 6 hereto.
Although this agreement became operative on May 23, 2010, if certain other conditions are not met and the Liberty Transaction is not consummated, this agreement will terminate upon termination of the Contribution Agreement.
3. Intercompany Agreement
In order to facilitate the actions required by the GG Group under the Liberty Equityholders Agreement, certain members of the Gazit Group entered into the Intercompany Agreement. For purposes of determining the nominees that the GG Group will support pursuant to the GG Group’s right under the Liberty Equityholders Agreement to require the Liberty Group to vote in favor of the GG Group’s nominees to the Equity One Board of Directors, Gazit will be responsible for soliciting recommendations from the other GG Group members and GAA prior to the date that the GG Group is required to provide notice of its supported nominees under the Liberty Equityholders Agreement. Based on these recommendations, Gazit will determine the nominees that GG Group will support.
Gazit will be also be responsible for soliciting recommendations from the other GG Group members and GAA prior to the date that the GG Group is required to provide notice of whether or not the LIH nominee to the Equity One Board of Directors is qualified to serve as a director of Equity One. Based on such recommendations, Gazit will determine whether the GG Group will deem the LIH nominee to be qualified.
The parties to the Intercompany Agreement agree that each member of the GG Group will be entitled to participate in the rights of first offer provided for in the Liberty Equityholders Agreement on a pro rata basis based on their respective relative ownership of Equity One Common Stock vis-à-vis one another.

 

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Further, the Intercompany Agreement and the rights and obligations that it entails may not be assigned by any party without the prior written consent of the other parties, provided, however, that any stockholder may assign the Intercompany Agreement to the same extent and under the same conditions as the GG Group is permitted to make assignments under Section 8.4 of the Liberty Equityholders Agreement.
See the Intercompany Agreement included as Exhibit 7 hereto for further details of the terms of such agreement. Although this agreement became operative on May 23, 2010, if certain other conditions are not met and the Liberty Transaction is not consummated, this agreement will terminate upon termination of the Contribution Agreement.
4. Ownership Waiver
Subject to certain conditions contained in the Ownership Limits Waivers, Equity One has agreed to extend certain existing waivers previously granted to GG (defined below) and its lenders to include the following:
(a) waive the application of the provisions of Section 7.2.1(a)(i) of the Articles of Amendment and Restatement, dated as of April 22, 2002, of Equity One, as amended as of May 23, 2010 (the “Charter”), which generally prohibit any Person from Beneficially Owning or Constructively Owning shares of Capital Stock (each term as defined in the Charter) in excess of 9.9% in value of the outstanding shares of Capital Stock of Equity One or shares of Common Stock in excess of 9.9% in value or in number of shares, whichever is more restrictive, of the outstanding shares of Common Stock of Equity One, respectively (the “Ownership Limits”), and exempt Chaim Katzman, Gazit, MGN, 1995, America, Hollywood, Gazit Canada, Inc., GAA, Silver Maple, Ficus, Gazit, Inc. and any other affiliates (collectively, the “GG”) from such limits, with respect to any shares of the issued and outstanding shares of Capital Stock owned or acquired at any time by the GG;
(b) waive the application of the Ownership Limits, and exempt any commercial bank or other commercial lending institution (including pension funds and insurance companies that act as lenders) that is not affiliated with or related to the GG (a “Qualified Lender”) and Foreclosure Transferees (as defined below) from such limits with respect to (i) any pledge of shares of Capital Stock by any member of the GG to a Qualified Lender in connection with a bona fide loan to any member of the GG, and (ii) any transfer of actual, Beneficial or Constructive Ownership (as defined in the Charter) of pledged shares described in (i) to a Qualified Lender or any transferee (“Foreclosure Transferee”) in connection with a foreclosure, seizure or other similar proceeding by the Qualified Lender against any of such pledged shares; and
(c) waive the application of the Ownership Limits, and exempt any current or future direct or indirect owner of any equity securities of any member of the GG, including without limitation Chaim Katzman or Dori Segal and Erika Ottosson from such limits.
See the Ownership Limits Waivers included as Exhibit 8 hereto for further details of the terms and conditions of the waivers.

 

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5. Undertaking
Chaim Katzman executed an irrevocable undertaking, dated May 23, 2003, in favor of the Gazit Entities pursuant to which he committed to vote his Equity One shares (whether owned by him beneficially and/or of record or controlled by him, including Equity One shares held by his immediate family members and/or by any entity controlled by him and/or by such family member, but excluding any shares owned by any member of the Gazit Entities) for nominees to Equity One’s board of directors, as directed in writing by Gazit, during the period in which (i) Chaim Katzman and/or his immediate family members own beneficially and/or of record, directly or indirectly through any entity controlled by him and/or by such family member, 50% or more of Gazit’s total outstanding voting capital stock, and (ii) the Gazit Entities own, directly or indirectly through any of its members’ subsidiaries, not less than 20% of Equity One’s total outstanding voting capital stock; but in any event such undertaking expires no later than May 23, 2013.
See the Undertaking included as Exhibit 9 hereto for further details of the conditions of this undertaking.
Item 7.   Material to be Filed as Exhibits.
     
Exhibit 1
  Stockholders Agreement, dated as of October 4, 2000, among Equity One, Inc., Alony Hetz Properties & Investments, Ltd., Gazit-Globe (1982) Ltd., Gazit (1995), Inc., and M.G.N. (USA), Inc., (incorporated by reference to Exhibit 4 of the Schedule 13D of Equity One, Inc. as filed with the Commission on October 19, 2000 (Commission File Number: 005-54975)).
 
    
Exhibit 2
  First Amendment to Stockholders Agreement dated December 19, 2001 by and among Equity One, Inc., Alony Hetz Properties & Investments, Ltd., Gazit-Globe (1982) Ltd., M.G.N. (USA), Inc. and Gazit (1995), Inc., (incorporated by reference to Exhibit 6 of the Schedule 13D/A of Equity One, Inc. as filed with the Commission on February 24, 2003 (Commission File Number: 005-54975)).
 
    
Exhibit 3
  Second Amendment to Stockholders Agreement dated December 28, 2002 by and among Equity One, Inc., Alony Hetz Properties & Investments, Ltd., Gazit-Globe (1982) Ltd., M.G.N. (USA), Inc. and Gazit (1995), Inc. (incorporated by reference to Exhibit 7 of the Schedule 13D/A of Equity One, Inc. as filed with the Commission on February 24, 2003 (Commission File Number:
 
  005-54975)).
 
    
Exhibit 4
  Third Amendment to Stockholders Agreement dated May 23, 2003 by and among Equity One, Inc., Alony Hetz Properties & Investments, Ltd., Gazit-Globe (1982) Ltd., M.G.N. (USA), Inc. and Gazit (1995), Inc.
 
    
Exhibit 5
  Fourth Amendment to Stockholders Agreement dated June 23, 2004 by and among Equity One, Inc., Alony Hetz Properties & Investments, Ltd., Gazit-Globe (1982) Ltd., M.G.N. (USA), Inc. and Gazit (1995), Inc.

 

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294752100 
      
 
      
 
     
Exhibit 6
  Liberty Equityholders Agreement, dated as of May 23, 2010, among Equity One, Inc., Capital Shopping Centres Group PLC, Liberty International Holdings Limited, Gazit-Globe Ltd., Gazit (1995), Inc., MGN (USA), LLC, MGN America, LLC, Silver Maple, Inc., and Ficus, Inc. (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K of Equity One, Inc. as filed with the Commission on May 27, 2010 (Commission File Number: 001-13499)).
 
    
Exhibit 7
  Intercompany Agreement, dated as of May 23, 2010, among Gazit-Globe, Ltd., MGN (USA) Inc., Gazit (1995), Inc., MGN America, LLC, Silver Maple (2001), Inc., and Ficus, Inc.
 
    
Exhibit 8
  Ownership Limits Waiver, dated as of May 23, 2010, in favor of the GG, the Qualified Lenders and the Gazit Group Shareholders.
 
    
Exhibit 9
  Undertaking, dated as of May 23, 2003, by Chaim Katzman.

 

Page 10 of 10

 

SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
         
  CHAIM KATZMAN
 		  
Date: June 7 , 2010  By:   /s/ Chaim Katzman    
 
  GAZIT-GLOBE, LTD.
 		  
Date: June 7 , 2010  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   Chairman   
 
Date: June 7 , 2010  By:   /s/ Varda Zuntz    
    Name:   Varda Zuntz   
    Title:   Corporate Secretary   
 
  M G N (USA) INC.
 		  
Date: June 7 , 2010  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 
Date: June 7 , 2010  By:   /s/ Sean Kanov    
    Name:   Sean Kanov   
    Title:   Controller   
 
  GAZIT (1995), INC.
 		  
Date: June 7 , 2010  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   

 

 

 

         
     
Date: June 7 , 2010  By:   /s/ Sean Kanov    
    Name:   Sean Kanov   
    Title:   Controller   
 
  MGN AMERICA, LLC
 		  
Date: June 7 , 2010  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 
Date: June 7 , 2010  By:   /s/ Sean Kanov    
    Name:   Sean Kanov   
    Title:   Controller   
 
  HOLLYWOOD PROPERTIES LTD.
 		  
Date: June 7 , 2010  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   Authorized Signatory   
 
Date: June 7 , 2010  By:   /s/ Varda Zuntz    
    Name:   Varda Zuntz   
    Title:   Authorized Signatory   
 
  GAZIT CANADA, INC.
 		  
Date: June 7 , 2010  By:   /s/ Dori Segal    
    Name:   Dori Segal   
    Title:   President   
 
Date: June 7 , 2010  By:   /s/ Alex Correia    
    Name:   Alex Correia   
    Title:   Corporate Administrator   

 

 

 

         
  GAZIT AMERICA, INC.
 		  
Date: June 7 , 2010  By:   /s/ Gail Mifsud    
    Name:   Gail Mifsud   
    Title:   Chief Executive Officer   
 
Date: June 7 , 2010  By:   /s/ Nir Chanoch    
    Name:   Nir Chanoch   
    Title:   Chief Operating Officer   
 
  SILVER MAPLE (2001), INC.
 		  
Date: June 7 , 2010  By:   /s/ Gail Mifsud    
    Name:   Gail Mifsud   
    Title:   Chief Executive Officer   
 
Date: June 7 , 2010  By:   /s/ Nir Chanoch    
    Name:   Nir Chanoch   
    Title:   Chief Operating Officer   
 
  FICUS, INC.
 		  
Date: June 7 , 2010  By:   /s/ Gail Mifsud    
    Name:   Gail Mifsud   
    Title:   Chief Executive Officer   
 
Date: June 7 , 2010  By:   /s/ Nir Chanoch    
    Name:   Nir Chanoch   
    Title:   Chief Operating Officer   
 

 

 

EX-99.4 2 c02095exv99w4.htm EXHIBIT 4 Exhibit 4
EXHIBIT 4
EQUITY ONE,. INC.
THIRD AMENDMENT
TO STOCKHOLDERS AGREEMENT
This Third Amendment to Stockholders Agreement (this “Third Amendment”) is entered into on May 23, 2003, by and among Equity One, Inc., a Maryland corporation (the “Corporation”), Alony Hetz Properties & Investments Ltd., an Israeli corporation or a wholly owned entity (the “Investor”), Gazit-Globe (1982) Ltd., an Israeli corporation (“Globe”), MGN (USA), Inc., a Nevada corporation (“MGN”), and GAZIT (1995), Inc., a Nevada corporation (“Gazit”).
WHEREAS, the parties hereto have entered into a Stockholders Agreement dated October 4, 2000 (the “Original Agreement”), a First Amendment to the Stockholder Agreement dated December 19, 2001 (the “First Amendment”) and a Second Amendment to the Stockholder Agreement dated October 28, 2002 (the “Second Amendment”) (the Original Agreement as amended by the First Amendment and by the Second Amendment will be referred to herein as the “Stockholders Agreement”) (all terms not otherwise defined herein shall have the meanings ascribed thereto in the Stockholders Agreement);
WHEREAS, pursuant to the terms of the Stockholders Agreement, the Investor and Gazit-Globe Group agreed to certain rights relating to the Common Stock purchased by the Investor; and
WHEREAS, the Investor and Gazit-Globe Group desire to amend a certain provision of the Stockholders Agreement as more fully set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
  1.  
Amendment to the Stockholders Agreement. The Stockholders Amendment is hereby amended as follows:
Section 4 to the Stockholders Agreement is hereby amended by deleting sub-paragraph (ii) in the first (preamble) paragraph of the Section in its entirety and inserting in lieu thereof the following:
“(ii) Gazit-Globe Group owns and/or controls, directly and/or indirectly through any of its members’ subsidiaries and/or through any agreements or undertakings made on its (or their) behalf by other stockholders of the Corporation (including the Investor), the majority of the Corporation’s common stock entitled to vote at the Corporation’s stockholders meetings with respect to the election of the Corporation’s directors.”
  2.  
References. All references in the Stockholders Amendment to “this Agreement” shall hereafter refer to the Stockholders Agreement as amended hereby.

 

 

 

  3.  
Counterparts. This Third Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
 
  4.  
Full Force and Effect. The Stockholders Agreement, as amended by this Third Amendment, shall continue in full force and affect, and nothing herein contained shall be construed as a waiver or modification of existing rights and obligations under the Stockholders Agreement, except as such rights or obligations are expressly modified hereby.
 
  5.  
Governing Law. This Third Amendment will be governed by and construed in accordance with the laws of the State of Florida.
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-2-

 

IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed on their behalf, by their respective officers, thereunto duly authorized, on the date first written above.
         
  EQUITY ONE, INC.
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   Chairman of the Board and
Chief Executive Officer 		  
 
  ALONY HETZ PROPERTIES & INVESTMENTS LTD.
 		  
  By:   /s/ Nathan Hetz    
    Name:   Nathan Hetz   
    Title:   Chief Executive Officer   
 
  GAZIT-GLOBE (1982) LTD.
 		  
  By:   /s/ signed    
    Name:      
    Title:      
 
  M.G.N. (USA), INC.
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 
  GAZIT (1995), INC.
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 

 

-3-

EX-99.5 3 c02095exv99w5.htm EXHIBIT 5 Exhibit 5
EXHIBIT 5
EQUITY ONE, INC.
FOURTH AMENDMENT TO
STOCKHOLDERS AGREEMENT
This Fourth Amendment to Stockholders Agreement (this “Fourth Amendment”) is entered into on June 23, 2004, by and among Equity One, Inc., a Maryland corporation (the “Corporation”), Alony Hetz Properties & Investments Ltd., an Israeli corporation or a wholly owned entity (the “Investor”), Gazit-Globe (1982) Ltd., an Israeli corporation (“Globe”), MGN (USA), Inc., a Nevada corporation (“MGN”), and GAZIT (1995), Inc., a Nevada corporation (“Gazit”).
WHEREAS, the parties hereto have entered into a Stockholders Agreement dated October 4, 2000 (the “Original Agreement”), a First Amendment to Stockholder Agreement dated December 19, 2001 (the “First Amendment”), a Second Amendment to Stockholder Agreement dated October 28, 2002 (the “Second Amendment”) and a Third Amendment to Stockholder Agreement dated May 23, 2003 (the “Third Amendment”; the Original Agreement as amended by the First Amendment, the Second Amendment and the Third Amendment, will be referred to herein as the “Stockholders Agreement”) (all terms not otherwise defined herein shall have the meanings ascribed thereto in the Stockholders Agreement);
WHEREAS, pursuant to the terms of the Stockholders Agreement, the Investor and Gazit-Globe Group agreed to certain rights relating to the Common Stock purchased by the Investor; and
WHEREAS, the Investor and Gazit-Globe Group desire to amend a certain provision of the Stockholders Agreement as more fully set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
  1.   Amendment to the Stockholders Agreement. The Stockholders Agreement is hereby amended as follows:
 
      Section 4 to the Stockholders Agreement is hereby amended by deleting subparagraph (ii) in the first (preamble) paragraph of the Section in its entirety and inserting in lieu thereof the following:
 
      “(ii) Gazit-Globe Group owns and/or controls, directly and/or indirectly through any of its members’ subsidiaries and/or through any agreements or undertakings made on its (or their) behalf by other stockholders of the Corporation (including the Investor), at least one-third (1/3) of the Corporation’s common stock entitled to vote at the Corporation’s stockholders meetings with respect to the election of the Corporation’s directors.”

 

 

 

  2.   References. All references in the Stockholders Agreement to “this Agreement” shall hereafter refer to the Stockholders Agreement as amended hereby.
 
  3.   Counterparts. This Third Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
 
  4.   Full Force and Effect. The Stockholders Agreement, as amended by this Third Amendment, shall continue in full force and effect, and nothing herein contained shall be construed as a waiver or modification of existing rights and obligations under the Stockholders Agreement, except as such rights or obligations are expressly modified hereby.
 
  5.   Governing Law. This Third Amendment will be governed by and construed in accordance with the laws of the State of Florida.
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-2-

 

IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be executed on their behalf, by their respective officers, thereunto duly authorized, on the date first written above.
         
 
EQUITY ONE, INC.
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   Chairman of the Board and
Chief Executive Officer 		  
 
 
ALONY HETZ PROPERTIES & INVESTMENTS LTD.
 		  
  By:   /s/ Nathan Hetz    
    Name:   Nathan Hetz   
    Title:   Chief Executive Officer   
 
 
GAZIT-GLOBE (1982) LTD.
 		  
  By:   /s/ signed    
    Name:      
    Title:      
 
 
M.G.N. (USA), INC.
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 
  GAZIT (1995), INC.
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 

 

-3-

EX-99.7 4 c02095exv99w7.htm EXHIBIT 99.7 Exhibit 99.7
EXHIBIT 7
Intercompany Agreement
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this “Agreement”) is made as of the 23rd day of May, 2010, by and among Gazit-Globe, Ltd. (“Gazit Globe”), an Israeli corporation, MGN (USA) Inc., a Nevada corporation (“MGN”), Gazit (1995), Inc., a Nevada corporation (“1995”), MGN America, LLC, a Delaware limited liability company (“America”), Silver Maple, Inc., a Nevada corporation (“Silver Maple”), and Ficus, Inc., a Delaware corporation (“Ficus”, and together with Chaim Katzman, Gazit Globe, MGN, 1995, America, Silver Maple and any of their respective controlled Affiliates, the “Gazit Group”) and Gazit America, Inc., a Canadian corporation (“Gazit America”). The members of the Gazit Group are sometimes collectively referred to herein as the “Stockholders” and each individually as a “Stockholder.”
Capitalized terms that are not defined in this Agreement have the meanings ascribed to them in the Equityholders Agreement (defined below), a copy of which is annexed hereto as Exhibit A.
RECITALS:
WHEREAS, on May 23, 2010, Equity One, Inc., a Maryland corporation (“Equity One”), Capital Shopping Centres Group PLC, a public limited company organized under the laws of England and Wales (the “Parent”), Liberty International Holdings Ltd., a private company limited by shares organized under the laws of England and Wales (“LIH”, and together with Parent and any other controlled Affiliates of Parent or LIH, the “Liberty Group”), and the Gazit Group entered into a Stockholders Agreement, which grants to the Gazit Group certain rights and obligations (the “Equityholders Agreement”).
WHEREAS, Gazit Globe has been designated as the representative of the Gazit Group with respect to any decisions, notices or communications required in connection with the Equityholders Agreement by any member of the Gazit Group; and
WHEREAS, the individual members of the Gazit Group wish to set forth their collective agreement as to how the Gazit Group’s rights and obligations under the Equityholders Agreement will be shared, exercised and allocated among the members of the Gazit Group; and
WHEREAS, Gazit America, who wholly owns Silver Maple and Ficus, two members of the Gazit Group, is executing this agreement in both its own capacity and in its capacity as the parent of Silver Maple and Ficus.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in reliance on all representations, warranties and covenants made by each of the parties hereto, the parties hereto agree as follows:

 

 

 

ARTICLE 1
EQUITY ONE BOARD OF DIRECTORS
1.1 LIH Voting Obligation. Pursuant to Section 2.6 of the Equityholders Agreement, the Liberty Group has agreed to vote (the “LIH Voting Obligation”) all shares of its EQY Common Stock and Series B Common Stock, in favor of the election of each individual who is supported by the Gazit Group as a nominee for election to the Equity One Board (each, a “Director Nominee”). For purposes of determining the Director Nominees that the Gazit Group will support, the Stockholders hereby agree that Gazit Globe shall be responsible for soliciting recommendations from the other Stockholders and Gazit America prior to the date that the Gazit Group is required to provide notice of its supported Director Nominees under the Equityholders Agreement. Based on such recommendations, Gazit Globe, in its sole discretion, shall determine the Director Nominees who will be supported by the Gazit Group and communicate the same as required under the Equityholders Agreement.
1.2 Gazit Voting Obligation. Pursuant to Section 2.7 of the Equityholders Agreement, the Gazit Group has agreed to vote (the “Gazit Voting Obligation”) all shares of its EQY Common Stock in favor of the election of the LIH nominee approved by the Equity One Board if such LIH nominee is qualified, in the Gazit Group’s reasonable judgment, to serve as a director of Equity One (such qualification being deemed to be present in certain circumstances pursuant to the Equityholders Agreement). For purposes of determining if the LIH nominee is so qualified, the Stockholders hereby agree that Gazit Globe shall be responsible for soliciting recommendations from the other Stockholders and Gazit America prior to the date that the Gazit Group is required to provide notice, if applicable, of its determination as to the qualification of the LIH nominee under the Equityholders Agreement. Based on such recommendations, Gazit Globe, in its sole discretion, shall determine, if applicable, whether the Gazit Group will deem the LIH nominee to be qualified and communicate same as required under the Equityholders Agreement. Each Stockholder hereby agrees that it will vote its EQY Common Stock in accordance with such determination.
ARTICLE 2
RIGHT OF FIRST OFFER
2.1 Gazit ROFOs. Pursuant to (i) Section 3.2 of the Equityholders Agreement, the Gazit Group has the right to purchase any First Offered DR Shares that the Liberty Group desires to sell (that are not otherwise acquired by Equity One) pursuant to the Gazit DRS ROFO and (ii) Section 3.4 of the Equityholders Agreement, the Gazit Group has the right to purchase any First Offered EQY Shares that the Liberty Group desires to sell pursuant to the Gazit Share ROFO . The Stockholders agree that they will each be entitled to participate in the Gazit ROFOs on a pro rata basis (based upon their respective relative ownership of Equity One Common Stock vis-a-vis one another, determined on the date of the Notice of Availability or Shares Sale Offer Notice, as applicable) (the “Stockholder Percentage”) in accordance with the provisions of Section 2.2 hereof.

 

2

 

2.2 Exercise of Election. Gazit Globe shall promptly provide to each Stockholder and Gazit America any notices provided to the Gazit Group under the Equityholders Agreement with respect to the Gazit ROFOs, including, without limitation, (i) the Notice of Availability that will be delivered if Equity One does not exercise its rights under the Equityholders Agreement to purchase the First Offered DRS Shares during the Equity One Offer Period and (ii) the Shares Sale Offer Notice, First Notice and Second Notice, as applicable, that will be delivered in connection with the Gazit Share ROFO. With respect to (i) the Gazit DRS ROFO, each Stockholder shall have seven (7) Business Days from the date of delivery of the Notice of Availability to notify Gazit Globe of its desire to purchase the First Offered DRS Shares in an amount equal to its Stockholder Percentage and (ii) the Gazit Share ROFO, each Stockholder shall have the following periods of time to notify Gazit Globe of its desire to purchase the First Offered EQY Shares in an amount equal to its Stockholder Percentage:
(a) Three (3) Business Days from the date of delivery of the Shares Sale Offer Notice if the First Offered EQY Shares have an aggregate value of $30 million or less as computed in accordance with the Equityholders Agreement;
(b) Five (5) Business Days from the date of delivery of the Shares Sale Offer Notice if the First Offered EQY Shares have an aggregate value greater than $30 million as computed in accordance with the Equityholders Agreement; and
(c) Twenty-four (24) hours from the time of delivery of the Second Notice if the First Offered EQY Shares are being sold in a Qualified ROFO Offering.
To the extent any Stockholder does not fully participate in their Stockholder Percentage (such remaining amount, the “Remaining Stockholder Amount”), any Stockholder(s) that have elected to fully participate in their respective Stockholder Percentage (the “Remaining Stockholders”) shall have an additional one (1) Business Day from the expiration of the applicable initial response period (except in the case of a Qualified ROFO Offering which will require that each Stockholder notify Gazit Globe of the amount of shares it will acquire in such event at the same time as it gives its initial response) to elect to participate, on a pro rata basis (based upon each Remaining Stockholder’s respective relative ownership of Equity One Common Stock vis-a-vis the other Remaining Stockholders, determined on the date of the Notice of Availability), in the Remaining Stockholder Amount. Each Stockholder that exercises its right to participate in the Gazit ROFOs shall fund its respective purchase in accordance with the Equityholders Agreement.
ARTICLE 3
OTHER DECISIONS UNDER THE EQUITYHOLDERS AGREEMENT
3.1 Other Exercises of Discretion. Under the Equityholders Agreement, the Gazit Group has certain other rights or obligations not otherwise specifically addressed in this Agreement pursuant to which the Gazit Group is entitled to exercise discretion (such discretionary decisions being hereinafter referred to as the “Discretionary Decisions”), including, without limitation, the right to waive the standstill provisions in Section 2.8 of the Equityholders Agreement and the right to approve amendments. For purposes of determining how the Gazit

 

3

 

Group will vote or act with respect to any Discretionary Decisions, the Stockholders hereby agree that Gazit Globe shall be responsible for soliciting recommendations from the other members of the Gazit Group and Gazit America prior to the date that the Gazit Group is required to provide a response with respect to such Discretionary Decision. Based on such recommendations, Gazit Globe, in its sole discretion, shall determine the Gazit Group’s position with respect to any Discretionary Decisions and communicate the same as required under the Equityholders Agreement. Each Stockholder hereby agrees that it will take any actions required in order to implement such determination.
ARTICLE 4
MISCELLANEOUS
4.1 Term. This Agreement shall terminate upon the termination of the Equityholders Agreement.
4.2 Assignment of Rights.
(a) Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party hereto without the prior [written] consent of the other parties, provided, however, that any Stockholder may assign this Agreement to the same extent and under the same terms and conditions as the Gazit Group is permitted to make assignments under Section 8.4 of the Equityholders Agreement.
(b) Any successor or permitted assignee of any Stockholder, shall deliver to Gazit Globe as a condition to any transfer or assignment, a counterpart signature page hereto pursuant to which such successor or permitted assignee shall confirm their agreement to be subject to and bound by all of the provisions set forth in this Agreement that were applicable to the predecessor or assignor of such successor or permitted assignee.
4.3 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State.
4.4 Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed and delivered by facsimile or portable document format (pdf) and in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
4.5 Titles and Subtitles. Whenever herein the singular number is used, the same shall include the plural, and the plural shall include the singular where appropriate, and words of any gender shall include the other gender when appropriate. The headings of the Sections contained in this Agreement are for convenience only and shall not be taken into account in determining the meaning of any provision of this Agreement. The words “hereof” and “herein” refer to this entire Agreement and not merely the Section in which such words appear. If the last day for performance of any obligation hereunder is not a Business Day, then the deadline for such performance or the expiration of the applicable period or date shall be extended to the next Business Day.

 

4

 

4.6 Notices. Any notice or communication required under or otherwise delivered in connection with this Agreement to any of the parties hereto shall be written and shall be delivered to such party at the following addresses:
If to Gazit-Globe, Ltd.:
1 Hashalom Road
Tel Aviv
Israel
Attn: Eran Ballan, Vice President and General Counsel
Fax: (972) 3-696-1910
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 E. 55th Street
New York, New York 10022
Attn: Mark Schonberger, Esq.
Fax: (212) 230-7747
If to MGN (USA) Inc.:
1696 NE Miami Gardens Drive
North Miami Beach, FL 33179
Attn: Sean Kanov, Controller
Fax: (305) 947-4200
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 E. 55th Street
New York, New York 10022
Attn: Mark Schonberger, Esq.
Fax: (212) 230-7747
If to Gazit (1995), Inc.:
1696 NE Miami Gardens Drive
North Miami Beach, FL 33179
Attn: Sean Kanov, Controller
Fax: (305) 947-4200

 

5

 

with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 E. 55th Street
New York, New York 10022
Attn: Mark Schonberger, Esq.
Fax: (212) 230-7747
If to MGN America, LLC:
1696 NE Miami Gardens Drive
North Miami Beach, FL 33179
Attn: Sean Kanov, Controller
Fax: (305) 947-4200
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 E. 55th Street
New York, New York 10022
Attn: Mark Schonberger, Esq.
Fax: (212) 230-7747
If to Silver Maple, Inc.:
1696 NE Miami Gardens Drive
North Miami Beach, FL 33179
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 E. 55th Street
New York, New York 10022
Attn: Mark Schonberger, Esq.
Fax: (212) 230-7747
If to Ficus, Inc.:
1696 NE Miami Gardens Drive
North Miami Beach, FL 33179
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 E. 55th Street
New York, New York 10022
Attn: Mark Schonberger, Esq.
Fax: (212) 230-7747

 

6

 

If to Gazit America, Inc.:
Gail C. Mifsud
Chief Executive Officer
Gazit America Inc. (TSX:GAA)
109 Atlantic Avenue, Suite 303
Toronto, Ontario M6K 1X4
Fax: (416) 447-3488
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 E. 55th Street
New York, New York 10022
Attn: Mark Schonberger, Esq.
Fax: (212) 230-7747
Each notice shall be in writing and shall be sent to the party to receive it, postage prepaid by certified mail, return receipt requested, or by a nationally recognized overnight courier service that provides tracking and proof of receipt. Inclusion of fax numbers is for convenience only, and notice by fax shall neither be sufficient nor required. Notices shall be deemed delivered upon receipt.
4.7 Entire Agreement; No Amendment. This Agreement represents the entire agreement among each of the parties hereto with respect to the subject matter hereof. It is expressly understood that no representations, warranties, guarantees or other statements shall be valid or binding upon a party unless expressly set forth in this Agreement. It is further understood that any prior agreements or understandings between the parties with respect to the subject matter hereof have merged in this Agreement, which alone fully expresses all agreements of the parties hereto as to the subject matter hereof and supersedes all such prior agreements and understandings. This Agreement may not be amended, modified or otherwise altered except by a written agreement signed by the party hereto against whom enforcement is sought.
4.8 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable, this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement, unless such severance and construction would materially alter the parties’ intent with respect to the transactions contemplated by this Agreement.
4.9 Further Assurances. At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.

 

7

 

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8

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
         
  GAZIT-GLOBE, LTD.
 		  
  By:   /s/ Roni Soffer    
    Name:   Roni Soffer   
    Title:   President   
 
     
  By:   /s/ Varda Zuntz    
    Name:   Varda Zuntz   
    Title:   Corporate Secretary   
 
  M G N (USA) INC.
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 
     
  By:   /s/ Sean Kanov    
    Name:   Sean Kanov   
    Title:   Controller   
 
  GAZIT (1995), INC.
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 
     
  By:   /s/ Sean Kanov    
    Name:   Sean Kanov   
    Title:   Controller   

 

 

 

         
         
  MGN AMERICA, LLC
 		  
  By:   /s/ Chaim Katzman    
    Name:   Chaim Katzman   
    Title:   President   
 
     
  By:   /s/ Sean Kanov    
    Name:   Sean Kanov   
    Title:   Controller   
 
  SILVER MAPLE (2001), INC.
 		  
  By:   /s/ Gail Mifsud    
    Name:   Gail Mifsud   
    Title:   Chief Executive Officer   
 
     
  By:   /s/ Nir Chanoch    
    Name:   Nir Chanoch   
    Title:   Chief Operating Officer   
 
  FICUS, INC.
 		  
  By:   /s/ Gail Mifsud    
    Name:   Gail Mifsud   
    Title:   Chief Executive Officer   
 
     
  By:   /s/ Nir Chanoch    
    Name:   Nir Chanoch   
    Title:   Chief Operating Officer   

 

 

 

         
         
  GAZIT AMERICA, INC.
 		  
  By:   /s/ Gail Mifsud    
    Name:   Gail Mifsud   
    Title:   Chief Executive Officer   
 
     
  By:   /s/ Nir Chanoch    
    Name:   Nir Chanoch   
    Title:   Chief Operating Officer   

 

 

 

         
Exhibit A
Equityholders Agreement
(See Exhibit 10.2 of Form 8-K of Equity One, Inc. as filed with the Securities and Exchange
Commission on May 27, 2010 (Commission File Number: 001-13499)).

 

 

EX-99.8 5 c02095exv99w8.htm EXHIBIT 8 Exhibit 8
EXHIBIT 8
EXECUTION COPY
Gazit-Globe, Ltd.
1 Hashalom Road
Tel Aviv
Israel
May 23, 2010
The Board of Directors
Equity One, Inc.
1600 N.E. Miami Gardens Drive
North Miami Beach, FL 33179
Re:    Ownership Limits Waivers
Ladies and Gentlemen:
Reference is hereby made to the provisions of Section 7.2.1(a)(i) of the Articles of Amendment and Restatement, dated as of April 22, 2002, of Equity One, Inc. (the “Company”), as amended to date (the “Charter”), which generally prohibit any Person from Beneficially Owning or Constructively Owning shares of Capital Stock in excess of 9.9% in value of the outstanding shares of Capital Stock of the Company or shares of Common Stock in excess of 9.9% in value or in number of shares, whichever is more restrictive, of the outstanding shares of Common Stock of the Company, respectively (collectively, the “Ownership Limits”). Capitalized terms used but not defined herein shall have the meaning set forth in the Charter.
As disclosed in a Schedule 13D/A filed on March 29, 2010 by Chaim Katzman (“Katzman”), Gazit-Globe Ltd., M G N (USA) Inc., Gazit (1995), Inc., MGN America, LLC, Hollywood Properties Ltd., Gazit Canada, Inc., Gazit America, Inc., Silver Maple (2001), Inc. and Ficus, Inc. (each, a “Gazit Group Party” and collectively with Gazit Inc. and any other affiliates, the “Gazit Group”), the Gazit Group beneficially owns 46,000,199.967 shares of Common Stock as of the date thereof (the “Gazit Group Shares”), which represent approximately 50.1% of the outstanding Common Stock. The Board of Directors of the Company has previously waived the Ownership Limits with respect to certain members of the Gazit Group and its lenders pursuant to resolutions of the Board of Directors of the Company on October 28, 1996, August 28, 1998, August 26, 2005, and December 1, 2006 (collectively, the “Previous Waivers”).
Subject to the terms and conditions of this letter agreement and acknowledging that the Board of Directors of the Company will approve, subject to approval by the Company’s shareholders, the Proposed Amendment (defined below) (which approval shall be sought at the same time that the Company presents the foreign ownership limitation to the shareholders for their approval) and may from time to time further amend the Ownership Limits to restrict the Beneficial or Constructive Ownership of outstanding shares of Capital Stock of the Company by an individual within the meaning of Section 542(a)(2) of the Code and any reference to the Ownership Limits herein shall include any such revised limitations, the Gazit Group ,on behalf of itself and the

 

 

 

Board of Directors
Equity One, Inc.
May 23, 2010
Page 2 of 9
Qualified Lenders (as defined below) and the Gazit Group Shareholders (defined below), hereby requests that the Board of Directors extend the Previous Waivers, which extension shall be deemed to supersede the Previous Waivers granted by the Company, by causing the Company to countersign this letter agreement below. In furtherance of the foregoing, the Company hereby agrees to:
  (x)   waive the application of the Ownership Limits, and exempt the Gazit Group from such limits, with respect to any shares of the issued and outstanding shares of Capital Stock owned or acquired at any time by the Gazit Group (the “Gazit Waiver”);
 
  (y)   waive the application of the Ownership Limits, and exempt any commercial bank or other commercial lending institution (including pension funds and insurance companies that act as lenders) that is not affiliated with or related to the Gazit Group (a “Qualified Lender”) and Foreclosure Transferees (as defined below) from such limits with respect to (i) any pledge of shares of Capital Stock by any member of the Gazit Group to a Qualified Lender in connection with a bona fide loan to any member of the Gazit Group, and (ii) any transfer of actual, Beneficial or Constructive Ownership of pledged shares described in (i) to a Qualified Lender or any transferee (“Foreclosure Transferees”) in connection with a foreclosure, seizure or other similar proceeding by the Qualified Lender against any of such pledged shares; and
 
  (z)   waive the application of the Ownership Limits, and exempt any current or future direct or indirect owner of any equity securities of any member of the Gazit Group, including without limitation Katzman or Dori Segal and Erika Ottosson (collectively, “Segal”), (collectively the “Gazit Group Shareholders”) from such limits.
The waivers in clauses (x), (y) and (z) are collectively referred to herein as the “Waivers”. Notwithstanding the foregoing:
the Ownership Limits are not waived under the Waivers if and to the extent Beneficial or Constructive Ownership of shares of Capital Stock in excess of the Ownership Limits otherwise permitted under the Waivers would result in the Company being “closely held” within the meaning of Section 856(h) of the Internal Revenue Code of 1986, as amended (the “Code”) (without regard to whether the ownership interest is held during the last half of a taxable year), or otherwise failing to qualify as a REIT (including, but not limited to, Beneficial or Constructive Ownership that would result in the Company owning (actually or Constructively) an interest in a Tenant that is described in Section 856(d)(2)(B) of the

 

 

 

The Board of Directors
Equity One, Inc.
May 23, 2010
Page 3 of 9
Code if the income derived by the Company from such Tenant would cause the Company to fail to satisfy any of the gross income requirements of Section 856(c) of the Code) (the requirements of this provision referred to herein as the “REIT Tests”).
Each party hereto, severally and not jointly, makes the following representations and warranties and covenants with the intention that the Board rely on them in granting the Waivers:
  1.   As of the date hereof, Katzman and Segal, in the aggregate, Beneficially Own, shares of Common Stock with an aggregate value of approximately 13.5% and 6.6%, respectively, of the value of all outstanding shares of stock of the Company after the application of the rules of Sections 542 and 544 of the Code as modified by Section 856(h) of the Code and will promptly notify the Company of any increase in such Beneficial Ownership of the Company.
 
  2.   To the best of the knowledge of the members of the Gazit Group that are parties to this letter agreement, as of the date hereof, no individual, within the meaning of Section 542(a)(2) of the Code, other than Katzman or Segal, Beneficially Owns shares of Common Stock with an aggregate value in excess of 5% of the value of all outstanding shares of stock of the Company after the application of the rules of Sections 542 and 544 of the Code as modified by Section 856(h) of the Code, as a result of the Gazit Group’s or Segal’s Beneficial Ownership of shares of Common Stock.
 
  3.   As of the date hereof, no Gazit Group Party Beneficially or Constructively Owns, an interest in a Tenant of the Company (or a Tenant of any entity owned or controlled by the Company) that would result in the Company owning (actually or Constructively) an interest in a Tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Company from such Tenant would cause the Company to fail to satisfy any of the gross income requirements of Section 856(c) of the Code.
 
  4.   As of the date hereof, Segal does not own, actually or Constructively, an interest in a Tenant of the Company (or a Tenant of any entity owned or controlled by the Company) that would result in the Company owning (actually or Constructively) an interest in a Tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Company from such Tenant would cause the Company to fail to satisfy any of the gross income requirements of Section 856(c) of the Code.
 
  5.   Each member of the Gazit Group that is a record holder of the Company’s Common Stock agrees that it will vote, at any meeting of the stockholders of the

 

 

 

The Board of Directors
Equity One, Inc.
May 23, 2010
Page 4 of 9
      Company or with respect to any action by written consent of the stockholders, the Gazit Group Shares in favor of the following amendments to the Charter:
  (a)   An amendment regarding the ownership of shares of Capital Stock by individuals that reduces the Ownership Limit with respect to individuals to 5% (the “Proposed Amendment”); provided that such amendment shall be subject to the Waivers set forth above; and
 
  (b)   An amendment regarding the ownership of shares of Capital Stock by non-U.S. persons, substantially in the form set forth in the Articles of Amendment attached as Exhibit A to the Subscription Agreement between Equity One and LIH in the form attached as Exhibit G to the Contribution Agreement, dated as of the date hereof (the “Foreign Ownership Limit”).
  6.   The Gazit Group, Katzman and Segal agree that, in the event that the Charter is amended to include the Foreign Ownership Limit, they shall each be subject to such Foreign Ownership Limit, and the Waivers granted pursuant to this letter shall not constitute waivers of the Foreign Ownership Limit.
 
  7.   In consideration for the Waivers and for the provisions of the Charter permitting members of the Gazit Group to pledge their shares to Qualified Lender, each member of the Gazit Group hereby agrees to notify Equity One promptly following the receipt by any member of the Gazit Group of a notice from any Qualified Lender exercising its right to foreclose under any loan pursuant to which the such member has pledged shares to a Qualified Lender and Gazit Globe agrees to provide a copy of such foreclosure notice to Equity One; provided, however, that Equity One shall not share any information contained in or related to the notice with any Person other than its agents and representatives (who shall also keep such information confidential).
The parties hereto, severally and not jointly, agree that (a) they will promptly notify the Company if any of the above representations and warranties is no longer true or accurate, and (b) any violation or attempted violation of their representations or undertakings herein (to the extent required) will result in a portion of their shares of Common Stock being automatically transferred to a trust in accordance with Sections 7.2.1(b) and 7.3 of the Charter but only if the REIT Tests are not met.
This letter agreement may be executed in two or more counterparts and by facsimile, each of which shall be deemed an original, but all of which shall constitute the same agreement. The Waivers contained in this letter agreement shall be irrevocable, except as expressly provided

 

 

 

The Board of Directors
Equity One, Inc.
May 23, 2010
Page 5 of 9
herein. Neither this letter agreement nor the Waivers contained herein may be assigned or transferred, including by operation of law in connection with a merger, consolidation, transfer of equity interests or other transaction involving any party benefiting from the Waivers, by any party hereto or any of their respective affiliates without the prior written consent of the Company.
The Company hereby represents and warrants to the Gazit Group, the Qualified Lenders, the Foreclosure Transferees, and the Gazit Group Shareholders that this letter agreement and the Waivers have been duly authorized and approved by the Board of Directors, and constitute the binding obligations of the Company, enforceable against the Company and the Board of Directors in accordance with the terms hereof. Subject to the restrictions on assignment or transfer set forth elsewhere in this letter agreement, this letter agreement and the Waivers will be binding upon, and inure to the benefit of, the Company, the Gazit Group, the Qualified Lenders, the Foreclosure Transferees, the Gazit Group Shareholders and their respective permitted successors and assigns.
[Signature Pages Follow]

 

 

 

The Board of Directors
Equity One, Inc.
May 23, 2010
Page 6 of 9
Kindly acknowledge the agreement of the Company and the approval of the Board to the provisions of this letter agreement and to the foregoing Waivers by signing this letter agreement where indicated below and returning a PDF version or facsimile copy in the manner indicated in the email transmission by which we are submitting this letter agreement.
         
GAZIT-GLOBE, LTD.
 		    
By:   /s/ Roni Soffer      
  Name:   Roni Soffer     
  Title:   President     
 
     
By:   /s/ Varda Zuntz      
  Name:   Varda Zuntz     
  Title:   Corporate Secretary     
 
M G N (USA) INC.
 		    
By:   /s/ Chaim Katzman      
  Name:   Chaim Katzman     
  Title:   President     
 
     
By:   /s/ Sean Kanov      
  Name:   Sean Kanov     
  Title:   Controller     

 

 

 

The Board of Directors
Equity One, Inc.
May 23, 2010
Page 7 of 9
         
GAZIT (1995), INC.
 		    
By:   /s/ Chaim Katzman      
  Name:   Chaim Katzman     
  Title:   President     
 
     
By:   /s/ Sean Kanov      
  Name:   Sean Kanov     
  Title:   Controller     
 
         
MGN AMERICA, LLC
 		    
By:   /s/ Chaim Katzman      
  Name:   Chaim Katzman     
  Title:   President     
 
     
By:   /s/ Sean Kanov      
  Name:   Sean Kanov     
  Title:   Controller     
 
SILVER MAPLE (2001), INC.
 		    
By:   /s/ Gail Mifsud      
  Name:   Gail Mifsud     
  Title:   Chief Executive Officer     
 
     
By:   /s/ Nir Chanoch      
  Name:   Nir Chanoch     
  Title:   Chief Operating Officer     

 

 

 

The Board of Directors
Equity One, Inc.
May 23, 2010
Page 8 of 9
         
FICUS, INC.
 		    
By:   /s/ Gail Mifsud      
  Name:   Gail Mifsud     
  Title:   Chief Executive Officer     
 
     
By:   /s/ Nir Chanoch      
  Name:   Nir Chanoch     
  Title:   Chief Operating Officer     

 

 

 

The Board of Directors
Equity One, Inc.
May 23, 2010
Page 9 of 9
         
ACKNOWLEDGED, AGREED AND WAIVED:

EQUITY ONE, INC.
 		    
By:   /s/Arthur Gallagher      
  Name:   Arthur Gallagher     
  Title:   EVP and General Counsel     
 

 

 

EX-99.9 6 c02095exv99w9.htm EXHIBIT 9 Exhibit 9
EXHIBIT 9
May 23, 2003
To:    Gazit-Globe (1982) Ltd. (“Globe”)
  Re:    Appointment of Directors in Equity One, Inc. (the “Corporation”)
The undersigned hereby takes the following irrevocable undertaking (this “Undertaking”) towards Globe and all of its subsidiaries (Globe and all of its subsidiaries shall collectively be referred to herein as “Gazit-Globe Group”):
  1.   During the Period, as defined herein, the undesigned will vote all of its Shares, as defined herein, of the Corporation, for nominees to the Board of Directors of the Corporation as directed in writing by a representative of Globe;
 
  2.   This Undertaking is irrevocable, and cannot be terminated or modified unless by a written document signed and dully approved by Globe.
 
  3.   For the purpose of this Undertaking, the term “Period” shall have the following meaning:
 
      a period during which -
(i) the undersigned and/or his immediate family members own beneficially and/or of record, directly and/or indirectly through any entity controlled by him and/or by such family member, 50% or more of Globe’s total outstanding voting capital stock; and
(ii) Gazit-Globe Group owns, directly and/or indirectly through any of its members’ subsidiaries, not less than 20% of the Corporation’s total outstanding voting capital stock.
      but in any event the Period shall end no later than at the tenth anniversary of the date of this Undertaking.
 
  4.   For the purpose of this Undertaking, the term “Shares” shall have the following meaning:
 
      shares of the Corporation owned beneficially and/or of record by the undersigned or controlled by him, including shares of the Corporation held by the undersigned’s immediate family members and/or by any entity controlled by the undersigned and/or by such family member; but excluding shares of the Corporation owned by any members of Gazit-Globe Group.
 
  5.   For the purpose of avoiding any doubt, it is hereby clarified that the undersigned may sell, transfer pledge or make any other disposition with respect to his Shares, and the provisions of this Undertaking shall be in effect only with respect to such number of Shares (if at all) that will remain at the ownership of the undersigned (as described in Section 4 above) after such sale, transfer, pledge or other disposition. It is also clarified that any person who receives any of the Shares (either by way of purchase, transfer, pledge or in any other disposition) shall not be subject to the terms of this Undertaking, as this Undertaking is personal (in personam) and shall apply only to Shares held (as described in Section 4 above) by the undersigned.
         
  Sincerely Yours,
 		  
  /s/ Chaim Katzman    
     
     
 

 

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