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SUPPLEMENTAL SHAREHOLDERS AGREEMENT DATED AS OF OCTOBER 11, 2005

Shareholder Agreement

SUPPLEMENTAL SHAREHOLDERS AGREEMENT   DATED AS OF OCTOBER 11, 2005 | Document Parties: INLAND AMERICAN REAL ESTATE TRUST, INC. You are currently viewing:
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INLAND AMERICAN REAL ESTATE TRUST, INC.

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Title: SUPPLEMENTAL SHAREHOLDERS AGREEMENT DATED AS OF OCTOBER 11, 2005
Date: 10/17/2005
Law Firm: Clifford Chance US LLP    

SUPPLEMENTAL SHAREHOLDERS AGREEMENT   DATED AS OF OCTOBER 11, 2005, Parties: inland american real estate trust  inc.
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Exhibit 10.8

 

EXECUTION COPY

 

 

 

 

SUPPLEMENTAL SHAREHOLDERS AGREEMENT

 

DATED AS OF OCTOBER 11, 2005

 

By and Among

 

INLAND AMERICAN REAL ESTATE TRUST, INC.

 

 

AND

 

HOLDERS OF COMMON STOCK AND SERIES A PREFERRED STOCK
AS LISTED ON SCHEDULE A HERETO

 

 

 



 

TABLE OF CONTENTS

 

ARTICLE I

 

DEFINITIONS

 

1

 

 

 

 

 

ARTICLE II

 

TRANSFERS

 

3

 

 

 

 

 

Section 2.1.

 

Transfer Restrictions

 

3

 

 

 

 

 

Section 2.2.

 

Right of First Refusal

 

4

 

 

 

 

 

Section 2.3.

 

Transfer Mechanics

 

5

 

 

 

 

 

Section 2.4.

 

Transfers to Third Parties after the Holders Decline Their Right of First Refusal

 

5

 

 

 

 

 

Section 2.5.

 

Miscellaneous

 

6

 

 

 

 

 

ARTICLE III

 

ADDITIONAL HOLDERS

 

6

 

 

 

 

 

Section 3.1.

 

Transferee of Holders

 

6

 

 

 

 

 

Section 3.2.

 

Supplementary Agreement

 

6

 

 

 

 

 

ARTICLE IV

 

MISCELLANEOUS

 

6

 

 

 

 

 

Section 4.1.

 

Binding Effect

 

6

 

 

 

 

 

Section 4.2.

 

Recapitalizations, Exchanges Affecting the Common Stock

 

6

 

 

 

 

 

Section 4.3.

 

Amendments

 

6

 

 

 

 

 

Section 4.4.

 

Notices

 

6

 

 

 

 

 

Section 4.5.

 

Applicable Law

 

8

 

 

 

 

 

Section 4.6.

 

Section Headings

 

8

 

 

 

 

 

Section 4.7.

 

Counterparts

 

8

 

 

 

 

 

Section 4.8.

 

Termination

 

8

 

 

 

 

 

Section 4.9.

 

Entire Agreement

 

8

 

 

 

 

 

Section 4.10.

 

Severability of Provisions

 

8

 

 

 

 

 

Section 4.11.

 

Consent to Jurisdiction

 

8

 

 

 

 

 

Section 4.12.

 

Waiver of Right to Jury Trial

 

8

 

 

 

 

 

Section 4.13.

 

Arbitration

 

9

 

 

 

 

 

Section 4.14.

 

No Conflicting Agreement

 

10

 

i



 

SUPPLEMENTAL SHAREHOLDERS AGREEMENT

 

This SUPPLEMENTAL SHAREHOLDERS AGREEMENT (this “ Agreement ”), dated as of October 11, 2005, is made and entered into by and among Inland American Real Estate Trust, Inc. (“ Inland ”), the holders of common stock, par value $1.00 per share (the “ Common Stock ”), of Minto Builders (Florida), Inc., a Florida corporation (the “ Company ”) listed on Schedule A hereto (the “ Common Stock Holders ”) and the holders of 3.5% Series A redeemable preferred stock, par value $0.01 per share, of the Company (the “ Series A Preferred Stock ”) listed on Schedule A hereto (the “ Series A Holders ”).  The parties hereto and any other person who shall hereafter acquire shares of Capital Stock (as defined below) or other voting securities of the Company pursuant to the provisions of and subject to this Agreement or the Shareholders Agreement, dated as of the date hereof, by and among the Company, Inland, the Common Stock Holders and the Series A Holders, are sometimes referred to individually as a “ Holder ” and collectively as “ Holders .”

 

WHEREAS, the Company has entered into a Securities Purchase and Subscription Agreement, dated as of the date hereof (the “Purchase Agreement”), with Inland and the other parties named therein pursuant to which the Company has agreed to issue and sell in several tranches, and Inland has agreed to purchase, for $1,276 per share, 920,000 shares of convertible special voting stock, par value $0.01 per share, of the Company (the “Voting Stock”) for an aggregate purchase price of $1,173,920,000 (the “Transaction”);

 

WHEREAS, prior to the Transaction, Minto (Delaware), LLC, a Delaware limited liability company, owns 23,000 shares of Common Stock and 207,000 shares of Series A Preferred Stock;

 

WHEREAS, as a result of the Transaction, when fully subscribed, Inland will hold up to 80% of the voting securities and value of the Company; and

 

WHEREAS, the Holders desire to provide herein for certain matters relating to the transfer of Capital Stock of the Company.

 

NOW, THEREFORE, the parties hereto hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

For all purposes of this Agreement, the following terms shall have the meanings set forth in this Article I:

 

Agreement ” has the meaning specified in the introductory paragraph to this Agreement.

 

Affiliate ” means, with respect to any specified Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with the Person specified and with respect to Inland, the term “Affiliate” shall include any member of the Inland Group.  For purposes of this definition, control of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

 

Arbitrated Claim ” has the meaning specified in Section 4.13.

 



 

Arbitration Answer ” has the meaning specified in Section 4.13(c).

 

Arbitration Claimants ” has the meaning specified in Section 4.13(c).

 

Arbitration Demand ” has the meaning specified in Section 4.13(c).

 

Arbitration Reply ” has the meaning specified in Section 4.13(c).

 

Arbitration Respondents ” has the meaning specified in Section 4.13(c).

 

Board ” means the Board of Directors of the Company.

 

Bona Fide Offer ” means any offer, in writing, to purchase shares of Capital Stock for cash, setting forth a specific purchase price and a closing date of no more than sixty (60) days therefrom which is fully financed and not subject to any material conditions.

 

Business Day ” means each day other than a Saturday, a Sunday or any other day on which banking institutions in the State of Illinois or in the Province of Ontario are authorized or obligated by law or executive order to be closed.

 

Capital Stock ” means the Common Stock, Voting Stock, and the Series A Preferred Stock.

 

Closing ” means the closing on October 11, 2005 pursuant to the Purchase Agreement.

 

Common Stock ” has the meaning specified in the introductory paragraph to this Agreement.

 

Common Stock Holders ” has the meaning specified in the introductory paragraph to this Agreement.

 

Company ” has the meaning specified in the introductory paragraph to this Agreement.

 

Default Offeree ” has the meaning specified in Section 2.2(e) of this Agreement.

 

Holder ” or “ Holders ” has the meaning specified in the introductory paragraph to this Agreement.

 

Inland ” has the meaning specified in the introductory paragraph to this Agreement.

 

Inland Group ” means The Inland Group, Inc., a Delaware corporation, and any direct or indirect wholly-owned subsidiary

 

Offeree Notice ” has the meaning specified in Section 2.2(b) of this Agreement.

 

Offerees ” has the meaning specified in Section 2.2(a) of this Agreement.

 

Offeror ” has the meaning specified in Section 2.2(a) of this Agreement.

 

Offering Holder ” has the meaning specified in Section 2.2(a) of this Agreement.

 

Permitted Transferee ” means, with respect to any Holder, (i) the Company or (ii) any Affiliate of such Holder.

 

2



 

Person ” means an individual, partnership, corporation, association, trust, joint venture, unincorporated organization, limited liability company, joint stock company, and any government, governmental department or agency or political subdivision thereof or any other entity.

 

Purchase Agreement ” has the meaning specified in the Recitals of this Agreement.

 

Put/Call Agreement ” means the Put/Call Agreement, dated as of the date hereof, by and among the Company, Inland, the Common Stock Holders and the Series A Holders.

 

Series A Holders ” has the meaning specified in the introductory paragraph to this Agreement.

 

Shareholders Agreement ” means the Shareholders Agreement, dated as of the date hereof, by and among the Company, Inland, the Common Stock Holders and the Series A Holders.

 

Series A Articles of Amendment ” means the Articles of Amendment filed by the Company and accepted for record by the State of Florida Department of State designating the Series A Preferred Stock.

 

Series A Preferred Stock ” has the meaning specified in the introductory paragraph to this Agreement.

 

Sponsored Entity ” means an entity sponsored by Inland Real Estate Investment Corporation, a Delaware corporation, that is (i) a real estate investment trust which is a reporting company under the Securities Exchange Act of 1934, as amended, that will not impair the Company’s ability to satisfy the “five or fewer” rule under Sections 856 and 542(a)(2) of the Internal Revenue Code of 1986, as amended, or (ii) reasonably approved by the Series A Holders.

 

Third Party ” means any Person other than the Company, any Holder and any of their respective Affiliates.

 

Transaction ” has the meaning specified in the Recitals of this Agreement.

 

Transfer ” means any direct or indirect sale, assignment, mortgage, transfer, pledge, gift, hypothecation or other disposition or transfer of, or any act creating a trust (voting or otherwise) with respect to, capital stock or other voting securities of the Company.

 

Transfer Default Stock ” has the meaning specified in Section 2.2(e) of this Agreement.

 

Transfer Notice ” has the meaning specified in Section 2.2(a) of this Agreement.

 

Transfer Offer ” has the meaning specified in Section 2.2(a) of this Agreement.

 

Transfer Stock ” has the meaning specified in Section 2.2(a) of this Agreement.

 

Voting Stock ” has the meaning specified in the Recitals of this Agreement.

 

ARTICLE II

TRANSFERS

 

SECTION 2.1.                        Transfer Restrictions .  Until the seventh anniversary of the Closing, Inland shall not Transfer any shares of its Voting Stock, and if the Voting Stock has been converted into Common Stock, Inland shall not Transfer any shares of such Common Stock, without the prior written consent of a

 

3



 

majority in interest of the Series A Preferred Stock, which consent shall not be unreasonably withheld; provided , however , that Inland may Transfer its Voting Stock (or Common Stock if converted) to a Sponsored Entity without obtaining the consent of the Series A Holders; provided , further , that Inland or a Sponsored Entity may pledge its Voting Stock (or Common Stock if converted) without obtaining the consent of the Series A Holders if the pledge is made to a lender in which the applicable indebtedness is secured by property of the Company and the lender requires the pledge of the Voting Stock (or Common Stock if converted) as additional collateral; provided , further , that if the Company guarantees any indebtedness of Inland or any of its subsidiaries, the amount of the guarantee will be treated as outstanding debt of the Company for purposes of the covenants contained in Paragraph 8 of the Series A Articles of Amendment.

 

SECTION 2.2.                        Right of First Refusal.

 

If, at any time during the term of this Agreement but subject to Section 2.1, any Holder (the “ Offering Holder ”) receives a Bona Fide Offer to purchase shares of Capital Stock (the “ Transfer Stock ”) then owned by such Offering Holder which such Offering Holder wishes to accept (a “ Transfer Offer ”) from any Third Party or any other Holder (the “ Offeror ”), then the Offering Holder shall provide a written notice (the “ Transfer Notice ”) of such Transfer Offer to each of the other Holders (the “ Offerees ”) stating (A) such Holder’s intention to Transfer all or a portion of its Capital Stock pursuant to the Bona Fide Offer, (B) the number of shares of Capital Stock that such Holder proposes to Transfer, (C) the name and address of the proposed transferee and (D) the offered purchase price per share of the Capital Stock to be Transferred and the manner of payment thereof.  The Transfer Notice shall be accompanied by a copy of the Bona Fide Offer, which shall be in writing and signed by the proposed transferee.

 

The Offerees shall have the right and option, within 60 days after the date the Transfer Notice is received by such Offerees, to accept irrevocably such offer (subject to the pro rata adjustments set forth in Sections 2.2(c) and 2.2(d)), in the aggregate, as to all but not less than all shares of Transfer Stock.  Each Offeree that desires to exercise such option shall provide the Offering Holder with written notice in the manner provided in Section 4.4 (the “ Offeree Notice ”) (specifying the number of shares of the Transfer Stock as to which such Offeree is accepting the offer) within such 60-day period.  If an Offeree does not provide an Offeree Notice to the Offering Holder within such 60-day period, such Offeree shall be deemed to have declined to exercise its rights under this Section 2.2.

 

If a Holder Offeree or Holder Offerees, pursuant to the Offeree Notice(s), accept(s) such offer to buy all the shares of Transfer Stock, the Offering Holder and Offeree(s) shall close the sale of Transfer Stock within 15 days after receipt of the final Offeree Notice by the Offering Holder.  No Offeree shall have the right to acquire such shares of Transfer Stock unless all such shares are being acquired in the aggregate by the Offerees pursuant to the provisions of this Section 2.2.

 

If the aggregate number of shares of Transfer Stock as to which notices of acceptance are provided by the Offerees exceeds the number of shares of Transfer Stock, then (1) if Inland is an Offeree, Inland shall be allocated the number of shares of Transfer Stock which Inland agreed to purchase on its notice of acceptance and (2) the number of shares of any remaining Transfer Stock that Inland did not agree to purchase on its notice of acceptance (of if Inland is not an Offeree, the number of shares of Transfer Stock) shall be allocated among the Offerees other than Inland (or if Inland is not an Offeree, the Offerees) as follows: (i) each Offeree which provided a notice of acceptance shall first be allocated the lesser of (A) the number of shares of Transfer Stock which such Offeree agreed to purchase and (B) the total number of shares of Transfer Stock offered in the Tran


 
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