EXHIBIT 1.1
Equity One, Inc.
[Equity Securities Being Offered]*
Underwriting Agreement
[Date]
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As Representatives of the
Several Underwriters
Ladies and Gentlemen:
Equity One, Inc., a corporation organized under the laws of the State of
Maryland (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom the Underwriters named as
Representatives on Schedule I (the "Representatives") are acting as
representatives, ______________ shares [of Common Stock, par value $0.01 per
share ("Common Stock")] [Series __ Preferred Stock, par value $0.01 per share
("Preferred Stock")] of the Company (said shares to be issued and sold by the
Company being hereinafter called the "Underwritten Securities"). The Company
also proposes to grant to the Underwriters an option to purchase up to
_______________ to cover over-allotments (the "Option Securities"; the Option
Securities, together with the Underwritten Securities, being hereinafter called
the "Securities"). To the extent there are no additional Underwriters listed on
Schedule I other than the Representatives, the term Representatives as used
herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants to, and
agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company has filed with Commission a registration statement on Form
S-3, including a prospectus ("Registration Statement No. 333-81216"),
for the registration under the Act of $250,000,000 aggregate amount of
the Company's equity and debt securities described therein. Such
registration statement has been declared effective by the Commission
and no stop order suspending such effectiveness has been issued under
the Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, threatened by the
Commission. All but $155,027,500 aggregate amount of securities
registered with the
*Plus an option to purchase from Equity One, Inc. up to ________ additional
shares to cover over-allotments.
Commission under the Act pursuant to Registration Statement No.
333-81216 have been previously issued. A joint registration statement
on Form S-3, including a prospectus ("Registration Statement Nos.
333-_____ and 333-_____-01 through -nn"), has also been filed by the
Company together with certain of its subsidiaries named in such
registration statement (the "Co-Registrants") for registration under
the Act of $XXX,000,000 aggregate amount of (i) the Company's equity
and debt securities described therein and (ii) the Co-Registrant's
guarantees relating to the debt securities registered pursuant to such
registration statement and pursuant to Registration Statement No.
333-81216. References herein to the term "Registration Statement" as
of any given date shall mean Registration Statement No. 333-81216 and
Registration Statement Nos. 333-_____ and 333-_____-01 through -nn
each as amended or supplemented to such date, including all documents
incorporated by reference therein as of such date pursuant to Item 12
of Form S-3 ("Incorporated Documents"). References herein to the term
"Prospectus" as of any given date shall mean the combined prospectus
forming a part of Registration Statement Nos. 333-_____ and
333-_____-01 through -nn, as supplemented by a prospectus supplement
relating to the Securities proposed to be filed pursuant to Rule
424(b) of the general rules and regulations under the Act ("Rule
424"), and as further amended or supplemented as of such date (other
than amendments or supplements relating to (i) securities other than
the Securities or (ii) when referring to the Prospectus relating to a
particular offering of the Securities, Securities other than the
Securities being offered on such date), including all Incorporated
Documents. References herein to the term "Effective Date" shall be
deemed to refer to the later of the time and date that Registration
Statement Nos. 333-_____ and 333-_____-01 through -nn) was declared
effective and the time and date of the filing thereafter of the
Company's most recent Annual Report on Form 10-K, if such filing is
made prior to the Closing Date (as hereinafter defined). References
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
deemed to be incorporated therein by reference. The Company will next
file with the Commission a Prospectus (supplemented by a prospectus
supplement relating to the Securities) in accordance with Rule 424.
The Company has included in the Registration Statement, as of the
Effective Date, all information required by the Act and the rules
thereunder to be included therein. As filed, the Prospectus (together
with any supplements thereto) shall contain all required information,
and, except to the extent the Representatives shall agree in writing
to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes as the Company has advised
you, prior to the Execution Time, will be included or made therein.
The
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Company and the transactions contemplated by this Agreement meet the
requirements for use of Form S-3 under the Act and also currently meet
the requirements in effect prior to October 21, 1992 for use of Form
S-3.
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission. On the
Effective Date, the Registration Statement did, and when the
Prospectus is filed in accordance with Rule 424 and on the Closing
Date (as defined herein) and on any date on which Option Securities
are purchased, if such date is not the Closing Date (a "Settlement
Date"), the Prospectus will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; when amended or supplemented, the
Registration Statement and the Prospectus will also so comply with
such acts and rules. On the Effective Date and at the Execution Time,
the Registration Statement did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; nor will it do so on the date of any amendment; and on the
date of any filing pursuant to Rule 424 and on the Closing Date and
any settlement date, the Prospectus (as it may be amended or
supplemented) will not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the
Prospectus, or to any statements in or omissions from the Statements
of Eligibility on Form T-1, or amendments thereto, of the trustee
under the indenture filed with the Registration Statement or to any
statements or omissions made in the Prospectus relating to The
Depository Trust Company ("DTC") Book-Entry-Only System that are based
solely on information contained in published reports of DTC.
(c) Each of the Company and its Subsidiaries (which term, as used in this
Agreement, includes direct and indirect subsidiaries that directly or
indirectly own interests in real property or are actively engaged in
the management of real property) has been duly incorporated or
organized and is validly existing as a corporation, limited
partnership, general partnership or limited liability company in good
standing under the laws of the jurisdiction in which it is chartered
or organized with full corporate, partnership or limited liability
company power and authority to own or lease, as the case may be, and
to operate its properties and conduct its
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business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation, limited partnership, general
partnership or limited liability company and is in good standing under
the laws of each jurisdiction which requires such qualification except
in any case in which the failure to so qualify or be in good standing
would not have a material adverse effect on the condition (financial
or otherwise), prospects, earnings or business of the Company and its
Subsidiaries or their properties, taken as a whole;
(d) All the outstanding shares of capital stock, partnership interests,
limited liability company interests or other equivalent equity
interest of each Subsidiary has been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Prospectus, all outstanding shares of capital stock,
partnership interests, limited liability company interests or other
equivalent equity interest of the Subsidiaries are owned by the
Company either directly or through wholly owned Subsidiaries free and
clear of any perfected security interest or any other security
interests, claims, liens or encumbrances;
(e) The Company's authorized equity capitalization is as set forth in the
Prospectus as of the date or dates stated therein; the capital stock
of the Company conforms in all material respects to the description
thereof contained in the Prospectus; the outstanding shares of capital
stock have been duly and validly authorized and issued and are fully
paid and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the certificates for the [Common Stock] [Preferred
Stock] are in valid and sufficient form; the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive
or other rights to subscribe for the Securities; and except as set
forth in the Prospectus no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are
outstanding.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit thereto, which is not described or filed
as required; and the statements in the Prospectus under the headings
["Description of the Series __ Preferred Stock"] "Material Federal
Income Tax Considerations", "Description of Common and Preferred
Stock" and "Risk Factors" insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
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(g) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms except to the extent that the
indemnification provisions hereof may be limited by federal or state
securities laws and public policy considerations in respect thereof.
(h) The Company has operated, for all periods from and after January 1,
1995, and intends to continue to operate in such a manner as to
qualify to be taxed as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended (the "Code"), including the
taxable year in which sales of the Securities are to occur.
(i) The Company is not and, after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(j) No consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained
under the Act, real estate syndication laws and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Prospectus.
(k) Neither the Company nor any of its Subsidiaries is required to own or
possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by it, other than those the
failure to possess or own would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings or
business of the Company and its Subsidiaries or their properties,
taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(l) Neither the execution or delivery of this Agreement, the issue and
sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Subsidiaries pursuant to, (i) the
charter or articles or certificate of formation, bylaws, partnership
agreement, limited liability company agreement or other organizational
documents of the Company or any of its Subsidiaries, (ii) except as
set forth in the Prospectus, the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which the Company or any of its Subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law,
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rule, regulation, judgment, order or decree applicable to the Company
or any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
Subsidiaries or any of its or their properties.
(m) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement
except for those listed on Schedule 1(m), all of which have been
effectively waived or are inapplicable to the offering hereby.
(n) The consolidated historical financial statements and schedules of the
Company and its consolidated Subsidiaries included in the Prospectus
and the Registration Statement present fairly in all material respects
the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The financial
information and data included in the Prospectus and Registration
Statement fairly present, on the basis stated in the Prospectus and
the Registration Statement, the information included therein.
(o) The pro forma financial statements included in the Prospectus and the
Registration Statement include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to
the transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma
financial statements included in the Prospectus and the Registration
Statement. The pro forma financial statements included in the
Prospectus and the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X under the Act.
(p) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated therein or contemplated thereby or in a supplement filed with
the Commission prior to the Execution Time, (A) there has been no
material adverse change, in the condition (financial or otherwise),
prospects, earnings or business of the Company and its Subsidiaries or
their properties, taken as a whole, whether or not arising from
transactions in the ordinary course of business, (B) there have been
no transactions or acquisitions entered into by the Company or any of
its Subsidiaries other than those arising in the ordinary course of
business, which are material
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with respect to the Company and its Subsidiaries considered as one
enterprise, and (c) except for regular quarterly dividends on the
Company's common stock, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(q) The documents incorporated or deemed to be incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act, and, when read together with the
other information in the Prospectus, at the time the Registration
Statement became effective and as of the Execution Time, the Closing
Date, any settlement date pursuant to Section 3 or during the period
specified in Section 5(b), did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(r) All pending legal or governmental proceedings to which the Company or
any of its Subsidiaries is a party or of which any of its property or
assets is the subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(s) Neither the Company nor any Subsidiary is in violation or default of
(i) any provision of its charter or articles or certificate of
formation, bylaws, partnership agreement, limited liability company
agreement or other organizational documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or such Subsidiary or any of its properties, as
applicable except in the cases of clause (ii) or (iii) for such
violations or defaults that would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings or
business of the Company and its Subsidiaries or their properties,
taken as a whole.
(t) Deloitte & Touche LLP, which has certified certain financial
statements of the Company and its consolidated Subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Prospectus, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
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(u) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable fee simple title to or leasehold
interest in all real properties and all other properties and assets
owned by them, in each case free from liens, encumbrances and defects
that would have a material adverse affect on the condition (financial
or otherwise), prospects, earnings or business of the Company or its
Subsidiaries, take as a whole; except as disclosed in the Prospectus,
no tenant under any lease to which the Company or any Subsidiary lease
any portion of its property is in default under such lease, except in
any case where such default would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings or
business of the Company and its Subsidiaries or their properties,
taken as a whole; each of the properties of any of the Company or its
Subsidiaries complies with all applicable codes and zoning laws and
regulations except in any case where such non-compliance would not
have a material adverse effect on the condition (financial or
otherwise), operations, prospects or earnings of the Company and its
Subsidiaries, taken as a whole, and neither the Company nor any of its
Subsidiaries has knowledge of any pending or threatened condemnation,
zoning change or other proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on, or
access to the properties of any of the Company or its Subsidiaries
except in any case where such action or proceeding would not have a
material adverse effect on the condition (financial or otherwise),
operations, prospects or earnings of the Company and its Subsidiaries,
taken as a whole.
(v) Title insurance in favor of the Company and its Subsidiaries is
maintained with respect to each shopping center property owned by any
such entity in an amount at least equal to (a) the cost of acquisition
of such property or (b) the cost of construction of such property
(measured at the time of such construction), except, in each case,
where the failure to maintain such title insurance would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings or business of the Company and its Subsidiaries or
their properties, taken as a whole.
(w) The mortgages and deeds of trust encumbering the properties and assets
described in the Prospectus (i) are not convertible (in the absence of
foreclosure) into an equity interest in the property or asset
described therein or in the Company or any Subsidiary, nor does any of
the Company or its Subsidiaries hold a participating interest therein,
(ii) except as set forth in the Prospectus are not cross-defaulted to
any indebtedness other than indebtedness of the Company or any of the
Subsidiaries and (iii) are not cross-collateralized to any property
not owned by the Company or any of the Subsidiaries.
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(x) There are no transfer taxes or other similar fees or charges under
federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale by
the Company of the Securities.
(y) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(z) The Company, each of its Subsidiaries and each of their properties are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary
in the businesses in which they are engaged; all policies of insurance
and fidelity or surety bonds insuring the Company or any of its
Subsidiaries or their respective properties, businesses, assets,
employees, officers and directors are in full force and effect, except
for the failute to insure or lapses in policies which would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings or business of the Company and its Subsidiaries,
taken as a whole.
(aa) The Company and its Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such Subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its
9
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(bb) The Company and each of its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) The Company has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(dd) The Company and its Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
and Hazardous Materials (as defined herein), including, but not
limited to the generation, recycling, reuse, sale, storage, handling,
transport and disposal of Hazardous Materials (collectively,
"Environmental Laws"), (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or
release of Hazardous Materials, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto). Except as set forth in the Prospectus, neither
the Company nor any of the Subsidiaries has been named as a
"potentially responsible party" under any Environmental Laws,
including, but not limited to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
(ee) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations
and
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properties of the Company and its Subsidiaries, in the course of which
it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would
not, singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(ff) The Company (i) does not have any material lending or other
relationship with any banking or lending affiliate of an Underwriter
except as set forth on Schedule I and (ii) does not intend to use any
of the proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any such affiliate except as set forth in the
Prospectus.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of
___________, the amount of the Underwritten Securities set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally
and not jointly, up to ____________ Option Securities at the same
purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any
time (but not more than once) on or before the 30th day after the date
of the Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of
the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The number of shares of
the Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the Option Securities
to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Securities, subject to such
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adjustments as you in your absolute discretion shall make to eliminate
any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section
2(b) hereof shall have been exercised at least one Business Day prior to
the Closing Date) shall be made at ________, New York City time, on
________, or if the pricing occurs after _______, New York City time), on
__________, or at such time on such later date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise
instruct. If the option provided for in Section 2(b) hereof is exercised
after one Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the
Representatives on the date specified by the Representatives (which shall
be between one and ten Business Days after exercise of said option or at
such other time as agreed upon by the Representatives and the Company) for
the respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in
same-day funds. If settlement for the Option Securities occurs after the
Closing Date, the Company will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as
of such date the opinions, certificates and letters delivered on the
Closing Date pursuant to Section 6 hereof.
4. Offering By Underwriters. The Company understands that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to file any amendment to the
Registration Statement necessary in connection with the offer and sale
of the Securities. Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to
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which you reasonably object. Subject to the foregoing sentence, if
filing of the Prospectus is otherwise required under Rule 424(b), the
Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives
(1) when the Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (3) of any request by the Commission
or its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the
Prospectus or for any additional information, (4) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (5) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and (3) supply any
supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement
or statements of the Company and its Subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement
13
(including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of the Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company
will pay the expenses of printing or other production of all documents
relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay any fee of the National Association of Securities Dealers,
Inc., in connection with its review of the offering; provided that in
no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act, any other shares of
[Common Stock] [Preferred Stock] or any securities convertible into,
or exercisable, or exchangeable for, shares of [Common Stock]
[Preferred Stock]; or publicly announce an intention to effect any
such transaction, for a period of 90 days after the date of the
Agreement, provided, however, that the Company may issue and sell
Common Stock pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company in effect
at the Execution Time and the Company may issue shares of its capital
stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time.
14
(g) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the
taxable year in which sales of the Securities are to occur.
(h) The Company, during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act in connection with sales
of the Securities, will file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the Exchange Act
within the time period prescribed by the Exchange Act.
(i) The Company will use its best efforts to list the Securities on the
New York Stock Exchange.
(j) The Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(k) The Company will use the net proceeds from the sale of Securities in
the manner specified in the form of the prospectus supplement
previously furnished to the Representatives.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein
as of the Execution Time, the Closing Date and any settlement date pursuant
to Section 3 hereof, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) The Prospectus, and any supplement thereto, shall have been filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx, P.A.,
_____________ and _____________, each counsel for the Company, to have
furnished to the Representatives the opinions, dated the Closing Date
and addressed to the Representatives and reasonably satisfactory in
form and substance to counsel for the Underwriters, to the effect
that:
(i) each of the Company and the Subsidiaries which directly or
indirectly holds real property (whether by fee ownership or
lease)
15
for the purpose of leasing to third parties is validly existing
as a corporation, limited partnership or limited liability
company in good standing under the laws of the jurisdiction in
which it is chartered or formed, with full corporate, partnership
or limited liability company power and authority to own or lease,
as the case may be, and to operate its properties and conduct its
business as described in the Prospectus, and is duly qualified to
do business as a foreign corporation, partnership or limited
liability company and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business and
where the failure to be so qualified would, individually or in
the aggregate, have a material adverse effect on the financial
condition, earnings, business or properties of the Company and
its Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus; notwithstanding the
foregoing, the Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
Florida, Georgia and Texas;
(ii) all the outstanding shares of capital stock, partnership
interests, limited liability company interests or other
equivalent equity interest of each Subsidiary which directly or
indirectly holds real property (whether by fee ownership or
lease) for the purpose of leasing to third parties have been duly
authorized and validly issued and are fully paid and
nonassessable, as applicable, and except as described in the
Prospectus, all outstanding shares of capital stock, partnership
interests, limited liability company interests or other
equivalent equity interest of such Subsidiaries are owned by the
Company either directly or through wholly owned Subsidiaries;
(iii) the Company's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; the outstanding shares of the Company's capital stock
have been duly authorized and validly issued and are fully paid
and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued,
fully paid and nonassessable; the certificates for the Securities
are in valid and sufficient form; the holders of outstanding
shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities except
for such rights as have been effectively waived;
16
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries or its or their
property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document
of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required;
(v) the statements included or incorporated by reference in the
Prospectus under the captions ["Description of the Series __
Preferred Stock"] "Material Federal Income Tax Considerations",
"Description of Common and Preferred Stock " and "Risk Factors"
insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate in all
material respects;
(vi) the Registration Statement has become effective under the Act;
any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by
Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been instituted
or threatened by the Commission and the Registration Statement as
of its filing date and effective date and the Prospectus as of
its filing date and as of its date (other than the financial
statements and other financial information contained therein, as
to which such counsel need express no opinion) complied as to
form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder
and the Company satisfies all conditions and requirements for the
filing of the Registration Statement on Form S-3 under the Act;
and such counsel has no reason to believe that on the Effective
Date or the date the Registration Statement was last deemed
amended the Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus as of its date, the
Execution Time and on the Closing Date contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and
other financial information contained therein, those parts of the
Registration Statement that constitutes the statements of
Eligibility on Form T-
17
1, and statements with respect to the DTC Book-Entry-Only System
that are based solely on information contained in published
reports of DTC, as to which such counsel need express no
opinion);
(vii) this Agreement has been duly authorized, executed and delivered
by the Company;
(viii) the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940, as amended;
(ix) commencing with the Company's taxable year beginning January 1,
1995, the Company has been organized in conformity with the
requirements of the Code for qualification as a "real estate
investment trust" for United States federal income tax purposes
and its method of operation will enable it to continue to satisfy
the requirements for qualification and taxation as a "real estate
investment trust" under the Code;
(x) the Securities are approved for listing, subject to official
notice of issuance, on the New York Stock Exchange;
(xi) no consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection
with the performance by the Company of the transactions
contemplated herein, except such as have been obtained under the
Act, real estate syndication laws and such as may be required
under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in
the Prospectus and such other approvals (specified in such
opinion) as have been obtained; provided, however, that no
opinion shall be required with respect to real estate syndication
or blue sky laws;
(xii) except as set forth in the Prospectus, neither the execution or
delivery of this Agreement by the Company, issue and sale of the
Securities by the Company, the consummation by the Company of any
other of the transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or its Subsidiaries
pursuant to, (i) the charter or by-laws of the Company or its
Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
18
agreement, obligation, condition, covenant or instrument known to
such counsel to which the Company or its Subsidiaries is a party
or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, or any judgment, order or
decree known to such counsel applicable to the Company or its
Subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its Subsidiaries or any of its
or their properties; and
(xiii) to such counsel's knowledge, no holders of securities of the
Company have rights to the registration of such securities under
the Registration Statement except for those which have been
effectively waived.
In rendering such opinions, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the States of Maryland,
Florida, Texas, Georgia, Arizona and Delaware or the federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from _____________, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Registration Statement, the Prospectus
(together with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company,
dated the Closing Date, or any settlement date pursuant to Section 3,
to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements
to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date or
settlement date with the same effect as if made on the Closing
Date or settlement date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
19
performed or satisfied at or prior to the Closing Date or
settlement date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened;
and
(iii) since the date of the most recent financial statements included
or incorporated by reference in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to
have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder
and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules of the Company [and those of
IRT Property Company] included or incorporated by reference
in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of carrying out certain specified procedures
(but not an examination in accordance with generally
accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and each of the
compensation committee, executive committee and audit and
review committee of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its Subsidiaries as to transactions and events
subsequent to ____________, nothing came to their attention
which caused them to believe that:
20
(1) (x) any material modifications should be made to the
unaudited condensed consolidated balance sheet of the
Company as of __________ and the unaudited condensed
consolidated statements of income and cash flows for
the _____-month periods ended ____________ and _______
included in the Company's Quarterly Report on Form 10-Q
for the quarter ended __________, incorporated by
reference in the Registration Statement, for them to be
in conformity with generally accepted accounting
principles or (y) such unaudited financial statements
do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange
Act and regulations thereunder;
(2) there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt of the Company and its Subsidiaries or
capital stock of the Company or decreases in the net
assets or stockholders' equity of the Company as
compared with the amounts shown on the _____________
consolidated balance sheet included or incorporated by
reference in the Registration Statement and the
Prospectus, or for the period from _____________ to
such specified date there were any decreases, as
compared with the corresponding period in the preceding
quarter or the corresponding period in the prior year
in net revenues or income before income taxes or in
total or per share amounts of net income of the Company
and its Subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which
case the letter shall be accompanied by an explanation
by the Company as to the significance thereof unless
said explanation is not deemed necessary by the
Representatives;
(3) the information included or incorporated by reference
in the Registration Statement and Prospectus in
response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not
in conformity with the applicable disclosure
requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of
an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information
derived from the
21
general accounting records of the Company and its
Subsidiaries) set forth or incorporated by reference in the
Registration Statement and the Prospectus and in Exhibit 12
to the Registration Statement agrees with the accounting
records of the Company and its Subsidiaries, excluding any
questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated by reference
in the Registration Statement and the Prospectus (the "pro
forma financial statements"); carrying out certain specified
procedures; inquiries of certain officials of the Company
who have responsibility for financial and accounting
matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came
to their attention which caused them to believe that the pro
forma financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)(ii)(2)
of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents
as the Representatives may reasonably request.
22
(h) The Securities shall have been listed and admitted and authorized for
trading on the New York Stock Exchange, and satisfactory evidence of
such actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the
Representatives "lock-up" letters signed by
___________________________ in forms mutually satisfactory to such
persons and the Representatives.
(j) The Company shall have caused Deloitte & Touche LLP, as the case may
be, to have delivered to the Representatives at the Closing Date all
accounting information specified in Section 6(e) above to the extent
not delivered at Execution Time.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at
the office of __________, counsel for the Underwriters, at
______________________________, on the Closing Date.
7. Expenses.
(a) If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth
in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 10 hereof or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or
comply with any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
(b) The Company agrees to pay the following costs and expenses and all
other costs and expenses incident to the performance by it of its
obligations hereunder:
23
(i) the preparation, printing or reproduction, and filing with the
Commission of the Registration Statement (including financial
statements and exhibits thereto), any preliminary prospectus, the
Prospectus and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, any preliminary
prospectus, the Prospectus and all amendments or supplements to
any of them as may be reasonably requested for use in connection
with the offering and sale of the Securities;
(iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Securities, including any stamp taxes in
connection with the original issuance and sale of the Securities;
(iv) the printing (or reproduction) and delivery of this Agreement and
all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities;
(v) the listing of the Securities on the New York Stock Exchange;
(vi) the registration or qualification of the Securities for offer and
sale under the laws of any jurisdiction as provided in Section
5(e) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the
preliminary and supplemental Blue Sky Memoranda and such
registration and qualification);
(vii) the filing fees and the fees and expenses of counsel for the
Underwriters in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.;
(viii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to
prospective purchasers of the Securities;
(ix) the fees and expenses of the Company's accountants and the fees
and expenses of counsel (including local and special counsel) for
the Company.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of either
the Act
24
or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Securities as
originally filed or in any amendment thereof, or in any preliminary
prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
therein; provided further, that with respect to any untrue statement
or omission of material fact made in any Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the Securities concerned,
to the extent that any such loss, claim, damage or liability of such
Underwriter occurs under the circumstance where (w) the Company had
previously furnished copies of a later Prospectus to the
Representatives, (x) delivery of such later Prospectus was required by
the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Prospectus was corrected
in such later Prospectus and (z) there was not sent or given to such
person, at or prior to the written confirmation of sale of such
securities to such person, a copy of such later Prospectus. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in
the documents referred to in
25
the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
26
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the Underwriters may
be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in excess of
the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined
by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by
the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each
27
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such
time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange,
(ii) a banking moratorium shall have been declared either by federal or New
York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made
pursuant to this
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Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment
for the Securities. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only
on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Representatives at the address set forth on Schedule I
and confirmed to the Representatives at the address set forth on Schedule
I; or, if sent to the Company, will be mailed, delivered or telefaxed to
Equity One, Inc., 0000 X.X. Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxx Xxxxx, XX
00000, (fax no. (000) 000-0000) and confirmed to it at Equity One, Inc.,
0000 X.X. Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxx Xxxxx, XX 00000, attention:
Xxxxxx Xxxxxxx, Chief Financial Officer.
13. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section
8 hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original and all of which together shall constitute one
and the same agreement.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Agreement" shall mean this Underwriting Agreement between the Company and
the Underwriters dated __________.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
30
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Equity One, Inc.
By:
-----------------------------------
Xxxxx Xxxxxxx
Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[Name of Underwriter]
By: ________________________
Name: ________________________
Title: ________________________
By: ________________________
Name: ________________________
Title: ________________________
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
SCHEDULE I
Number of
Name of Underwriter Underwritten Securities Nature of Lending Relationship
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