Equity One, Inc. 5,000,000 Shares of Common Stock UNDERWRITING AGREEMENT Dated: May 18, 2011
Exhibit 1.1
5,000,000 Shares of Common Stock
Dated: May 18, 2011
5,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
May 18, 2011
Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Equity One, Inc., a Maryland corporation (the “Company”), confirms its agreement with Barclays
Capital Inc. (collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 9 hereof, and if Schedule A indicates a
single underwriter, the “Underwriters” shall mean such single underwriter), with respect to (i) the
sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the
respective number of shares of Common Stock, par value $0.01 per share, of the Company (“Common
Stock”) set forth in Schedule A and Schedule B hereto and (ii) the grant by the
Company to the Underwriters, acting severally and not jointly, of the option described in Section
2(b) hereof to purchase all or any part of 750,000 additional shares of Common Stock. The
aforesaid 5,000,000 shares of Common Stock (the “Initial Securities”) to be purchased by the
Underwriters and all or any part of the 750,000 shares of Common Stock subject to the option
described in Section 2(b) hereof (the “Option Securities”) are hereinafter called, collectively,
the “Securities”.
Prior to this Agreement, the Company has also entered into an agreement (the “Concurrent Sale
Agreement”) providing for the sale by the Company (the “Concurrent Sale”) of an aggregate of
1,000,000 shares of Common Stock, subject to adjustment as described therein (as may be adjusted,
the “Concurrent Securities”) to the entity noted on Exhibit A (the “Purchaser”) hereto at
the public offering price set forth in the Prospectus (as defined below). The Company is offering
the Concurrent Securities directly to the Purchaser in the Concurrent Sale. The Underwriters will
receive no underwriting discount or commission on the Concurrent Securities. The Company
acknowledges and agrees with the Underwriters that as between the Company on the one hand and the
Underwriters on the other, the Company is the sole beneficiary of the Concurrent Sale and that none
of the Underwriters has provided any services to the Company as to the structure or execution of
the Concurrent Sale.
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Underwriters deem advisable after this Agreement has been executed and
delivered.
The Company has prepared and filed with the U.S. Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement on Form S-3 (No. 333-166800), including the
related preliminary prospectus or prospectuses, which registration statement became effective upon
filing on May 13, 2010 under Rule 462(e) of the rules and regulations of the Commission (the “1933
Act Regulations”) under the Securities Act of 1933, as amended (the “1933 Act”). Such registration
statement covers the registration of the Securities under the 1933 Act. Promptly after execution
and delivery of this
Agreement, the Company will prepare and file a prospectus in accordance with the provisions of
Rule 430B (“Rule 430B”) of the 1933 Act Regulations and paragraph (b) of Rule 424 (“Rule 424(b)”)
of the 1933 Act Regulations. Any information included in such prospectus that was omitted from
such registration statement at the time it became effective but that is deemed to be part of and
included in such registration statement pursuant to Rule 430B is referred to as “Rule 430B
Information.” Each prospectus used in connection with the offering of the Securities that omitted
Rule 430B Information is herein called a “preliminary prospectus.” Such registration statement, at
any given time, including the amendments thereto to such time, the exhibits and any schedules
thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof or
included therein by 1933 Act Regulations, is herein called the “Registration Statement.” The
Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form first furnished to the Underwriters for
use in connection with the offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the time of the execution
of this Agreement is herein called the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the “1934 Act”) which is
incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case
may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and warrants to
each Underwriter as of the date hereof, the Applicable Time referred to in Section 1(a)(i) hereof
and as of the Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Well- Known Seasoned Issuer; Registration Statement, Prospectus and Disclosure
at Time of Sale. (A) At the time of filing of the Original Registration Statement, (B)
at the time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of
prospectus), (C) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) under the 0000 Xxx) made any offer relating to
the Securities in reliance on the exemption of Rule 163 under the 1933 Act, and (D) as of
the Initial Sale Time, the Company was and is a “well-known seasoned issuer” (as defined in
Rule 405 of the 1933 Act Regulations). The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405, which Registration Statement became
effective upon filing on May 13, 2010 under Rule 462(e) of the 1933 Act Regulations, and the
Securities, since their registration on the Registration Statement, have been and remain
eligible for registration by the Company on a Rule 405 “automatic shelf registration
statement”. At the
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time of filing the Original Registration Statement, at the earliest time thereafter
that the Company or another offering participant made a bona fide offer (within the meaning
of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the
Company was not and is not an “ineligible issuer,” as defined in Rule 405. The conditions
to the use of Form S-3 in connection with the offering and sale of the Securities as
contemplated hereby have been satisfied. The Registration Statement meets the requirement
set forth in Rule 415(a)(1)(x). No stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the Registration Statement complied and
will comply as to form in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of
the Original Registration Statement or any amendment thereto) complied as to form when so
filed in all material respects with the 1933 Act Regulations. The Prospectus (including any
amendment thereto) complied or will comply as to form when filed and at the Closing Time
(and, if any Option Securities are purchased, at the Date of Delivery) in all material
respects with the 1933 Act Regulations. Each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
As of the Applicable Time, neither (x) the Issuer General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as defined
below), the Statutory Prospectus (as defined below) and the information included on
Schedule C hereto, all considered together (collectively, the “General Disclosure
Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus (as defined
below), when considered together with the General Disclosure Package, included any untrue
statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 8:45 a.m. (Eastern Time) on May 19, 2011 or such other time as
agreed in writing by the Company and the Underwriters.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to
be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
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“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a Bona Fide
Electronic Road Show (as defined below)), as evidenced by its being specified in
Schedule E hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein and any preliminary or other prospectus deemed to
be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Underwriters as described in Section 3(e), did
not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter expressly for use therein.
(ii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and 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 1933 Act and the 1933 Act Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”),
and, when read together with the other information in the Prospectus, (a) at the time the
Original Registration Statement became effective, (b) at the earlier of time the Prospectus
was first used and the date and time of the first contract of sale of Securities in this
offering and (c) at the Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders’ equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles (“GAAP”) applied on a consistent
basis throughout the periods involved except as noted therein. The supporting schedules, if
any, present fairly in all material respects in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary financial
information included in the General Disclosure Package and the Prospectus present fairly
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in all material respect the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the Registration
Statement. All disclosures contained in the Registration Statement, the General Disclosure
Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with Regulation G under the 1934 Act
and Item 10 of Regulation S-K of the 1933 Act Regulations, to the extent applicable.
(v) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change in the condition (financial or otherwise), or in the earnings, business affairs or
business prospects of the Company and its subsidiaries or their properties, taken as a whole
(a “Material Adverse Effect”), whether or not arising in the ordinary course of business,
(B) other than those arising in the ordinary course of business, there have been no
transactions entered into by the Company or any of its subsidiaries, that are material with
respect to the Company and its subsidiaries considered as one enterprise, and (C) except
for regular quarterly dividends on the 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.
(vi) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Maryland
and has corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the Prospectus and
to enter into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each “Significant Subsidiary” of the
Company (as such term is defined in Rule 1-02(w) of Regulation S-X) and each subsidiary of
the Company that owns any real property (each a “Property Subsidiary” collectively and,
together with the Significant Subsidiaries, the “Subsidiaries”) 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, lease and operate, as the case may be, its properties
and to conduct its business as described in the General Disclosure Package and the
Prospectus and is duly qualified as a foreign corporation, limited partnership, general
partnership or limited liability company, as the case may be, to transact business and is in
good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except in any
case in which the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect. All the outstanding shares of capital stock, partnership
interests, limited liability company interests or other equivalent equity interests of each
Significant Subsidiary and each Property Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable. Except as otherwise set forth in the
General Disclosure Package and the Prospectus, all outstanding shares of capital stock,
partnership interests, limited liability company interests or other equivalent equity
interests of the Significant Subsidiaries and the Property Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries of the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of
the outstanding shares of capital stock, partnership interests, limited liability company
interests or other equivalent equity
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interests of any Subsidiary was issued in violation of the preemptive or similar rights
of any security holder of such Subsidiary.
(viii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) Concurrent Sale Agreement. The Company has the requisite power and
authority to make the Concurrent Sale, to execute and deliver the Concurrent Sale Agreement
and to perform its obligations thereunder; and all action required to be taken for the due
and proper authorization of the Concurrent Sale and the due and proper executions and
delivery of the Concurrent Sale Agreement and the consummation by it of the transactions
contemplated thereby has been duly and validly taken. The Concurrent Sale conforms, and
will conform, in all material respects to the requirements of the 1933 Act and applicable
laws, rules and regulations. The Concurrent Securities have been duly and validly
authorized, and, when delivered to and paid for by the Purchaser in the Concurrent Sale
pursuant to the Concurrent Sale Agreement, will conform in all material respects to the
description contained in the General Disclosure Package and the Prospectus and will be
validly issued, fully paid and non-assessable. The Company will comply with all applicable
securities and other laws, rules and regulations in each jurisdiction in which the
Concurrent Securities are offered in connection with the Concurrent Sale.
(x) Disclosure for Concurrent Sale. The Company is solely responsible for the
contents of any disclosure documents used in the offering of the Concurrent Securities, and
the Company represents, warrants and agrees that such documents will not, as of the date of
any offer or sale of the Concurrent Securities, conflict with the information in the General
Disclosure Package and the Prospectus or contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading. Prior to the
execution of this Agreement, the Company and the Purchaser in the Concurrent Sale have
executed and delivered the Concurrent Sale Agreement. The Concurrent Sale Agreement is
substantially in the form previously provided to the Underwriters and shall not be amended.
(xi) Authorization and Description of Securities. The Securities to be
purchased by the Underwriters from the Company have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable; the Common Stock conforms to all
statements relating thereto contained in the General Disclosure Package and the Prospectus
and such description conforms to the rights set forth in the instruments defining the same;
no holder of the Securities will be subject to personal liability by reason of being such a
holder; and the issuance of the Securities is not subject to the preemptive or other similar
rights of any security holder of the Company.
(xii) Absence of Defaults and Conflicts. Neither the Company nor any of its
Subsidiaries is in violation of (i) its charter or by-laws or (ii) in default in the
performance or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its Subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, “Agreements and Instruments”) except
with respect to clause (ii) for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated herein and in the General Disclosure Package and the
Prospectus (including the issuance and sale of the
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Concurrent Securities and the Securities and the use of the proceeds from their sale as
described in the General Disclosure Package and the Prospectus under the caption “Use of
Proceeds”) and compliance by the Company with its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of the Company
or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiary or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used herein, a “Repayment
Event” means any event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
(xiii) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the employees of any
of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors,
which, in either case, would result in a Material Adverse Effect.
(xiv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any subsidiary, which is required to be disclosed in the General Disclosure
Package or the Prospectus (other than as disclosed therein), or which might result in a
Material Adverse Effect or which might materially and adversely affect the properties or
assets thereof or the consummation of the transactions contemplated in this Agreement, the
Concurrent Sale or the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or assets is the subject
which are not described in the General Disclosure Package or the Prospectus, including
ordinary routine litigation incidental to the business, could not be reasonably expected to
result in a Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the General Disclosure Package, the
Prospectus or the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(xvi) Possession of Intellectual Property. Neither the Company nor any of its
subsidiaries is required to own or possess any trademarks, service marks, trade names or
copyrights (collectively, “Intellectual Property”) 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, whether or not arising from transactions in the ordinary course of business.
(xvii) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in, under the
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1934 Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(xviii) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations pursuant to the Concurrent Sale or hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been already obtained or as
may be required under the 1933 Act or the 1933 Act Regulations; provided, however, that the
Company makes no representation or warranty as to the blue sky laws or real estate
syndication laws of any jurisdiction or any such requirements of the Financial Industry
Regulatory Authority, Inc. (“FINRA”).
(xix) Possession of Licenses and Permits. The Company and its Subsidiaries
possess all permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by them, except
where the failure so to possess would not, singly or in the aggregate, result in a Material
Adverse Effect; the Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in full force
and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xx) Title to Property. Except as disclosed in the General Disclosure Package
and the Prospectus, the Company and the Property Subsidiaries have good and marketable fee
simple title to or leasehold title in all real property and all other properties and assets
owned or leased by them and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims, restrictions,
defects or encumbrances that would have a Material Adverse Effect; except as disclosed in
the General Disclosure Package and the Prospectus, no tenant under any lease to which the
Company or any of the Property Subsidiaries 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; each of the properties of any of the Company or the Property 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; and neither the Company nor any of
the Property 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 the
Property Subsidiary except in any case where such action or proceeding would not have a
Material Adverse Effect.
(xxi) Investment Company Act. The Company is not required, and upon the
issuance and sale of the Securities and the Concurrent Securities, as herein contemplated
and the application of the net proceeds therefrom as described in the General Disclosure
Package and the Prospectus will not be required, to register as an “investment company”
under the Investment Company Act of 1940, as amended (the “1940 Act”).
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(xxii) Environmental Laws. Except as described in the General Disclosure
Package and the Prospectus and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, whether or not arising from transactions in the ordinary course of
business, the Company and its Property 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 as set forth in the
Registration Statement, General Disclosure Package and the Prospectus, neither the Company
nor any of the Property 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. The term “Hazardous
Materials” mean chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials or mold.
(xxiii) Accounting Controls and Disclosure Controls. The Company and each of
its subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (1) transactions are executed in accordance with management’s
general or specific authorization; (2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (3) access to assets is permitted only in accordance with management’s general
or specific authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences.
The Company and its consolidated subsidiaries have established and maintain “internal
control over financial reporting” and “disclosure controls and procedures,” in each case as
required by Rule 13a-15 under the 1934 Act. To the knowledge of the Company, the Company’s
internal control over financial reporting and disclosure controls and procedures are
effective at a reasonable assurance level to perform the functions for which they were
designed and established. Except as described in the General Disclosure Package and the
Prospectus, since the end of the Company’s most recent audited fiscal year, there has been
(I) no material weakness in the Company’s internal control over financial reporting (whether
or not remediated) and (II) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.
(xxiv) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no
failure on the part of the Company or, to the knowledge of the Company, any of the Company’s
directors or officers, in their capacities as such, to comply in all material respects with
any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 relating to loans and
Sections 302 and 906 related to certifications.
(xxv) Pending Proceedings and Examinations. The Registration Statement is not
the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933
Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities.
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(xxvi) Tax Law Compliance. 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 to so file would not have a Material Adverse Effect
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, whether or not arising from transactions in the
ordinary course of business, except as set forth in the General Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(xxvii) Insurance and Title Insurance. Each of the Company, the Significant
Subsidiaries and the Property Subsidiaries and each of their respective 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, the Significant
Subsidiaries and the Property Subsidiaries or their respective properties, businesses,
assets, employees, officers and directors are in full force and effect, except for the
failure to insure or lapses in policies which would not have a Material Adverse Effect.
Title insurance in favor of the Company and the Property 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.
(xxviii) Statistical and Market-Related Data. Any statistical and
market-related data included in the Registration Statement, the General Disclosure Package
and the Prospectus are based on or derived from sources that the Company believes to be
reliable and accurate, and the Company has obtained the written consent to the use of such
data from such sources to the extent required.
(xxix) Real Estate Investment Trust. 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.
(xxx) Mortgages, Deeds of Trust. The mortgages and deeds of trust encumbering
the properties and assets described in the Registration Statement, the General Disclosure
Package and 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 of its
subsidiaries, nor does the Company or any of its subsidiaries hold a participating interest
therein, (ii) except as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus, are not cross-defaulted to any indebtedness other than
indebtedness of the Company or any of its subsidiaries and (iii) are not
cross-collateralized to any property not owned by the Company or any of its subsidiaries.
(xxxi) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in the furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official
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thereof or any candidate for foreign political office, in contravention of the FCPA and
the Company and to the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure and which are reasonable expected to continue to ensure,
continued compliance therewith.
(xxxii) Money Laundering Laws. The operations of the Company are and have been
conducted at all times in material compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(xxxiii) OFAC. Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or person acting on behalf of the Company is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly
use the proceeds from the sale of the Securities or the Concurrent Securities, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(xxxiv) The Company does not intend to use any of the proceeds from the sale of the
Securities or the Concurrent Securities hereunder to repay any outstanding debt owed to any
affiliate except as set forth in the General Disclosure Package and the Prospectus.
(b) [Reserved]
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter the Initial Securities, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the price per share set forth in Schedule D, that proportion
of the number of Initial Securities set forth in Schedule B opposite such Underwriter’s
name, plus any additional number of Initial Securities which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 9 hereof, subject, in each case, to such
adjustments among the Underwriters as the Underwriters in their sole discretion shall make to
eliminate any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase up to an additional 750,000
shares of Common Stock, as set forth in Schedule B, at the price per share set forth in
Schedule D, less an amount per share equal to any dividends or distributions declared by
the Company and payable on the Initial Securities but not payable on the Option Securities. The
option hereby granted will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time upon notice by the Underwriters to the Company setting forth the number of
Option Securities as to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time and date of delivery (a
“Date of Delivery”) shall be determined by the Underwriters, but shall not be
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later than seven full business days after the exercise of said option, nor in any event prior
to the Closing Time, as hereinafter defined. If the option is exercised as to all or any portion
of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase
that proportion of the total number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to
the total number of Initial Securities, subject in each case to such adjustments as the
Underwriters in their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of DLA Piper LLP (US), 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, X.X. 00000, or at such other place as shall be agreed upon by the Underwriters and the
Company, at 10:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:00 P.M.
(Eastern time) on any given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten business days after such
date as shall be agreed upon by the Underwriters and the Company (such time and date of payment and
delivery being herein called “Closing Time”).
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Underwriters and the Company, on each Date of Delivery as specified in the notice from
the Underwriters to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account(s) designated by the Company against delivery to the Underwriters for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. Barclays
Capital Inc. may (but shall not be obligated to) individually make payment of the purchase price
for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter
whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the
case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names as the Underwriters
may request in writing at least one full business day before the Closing Time or the relevant Date
of Delivery, as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the Underwriters in the
City of New York not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be.
(e) Delivery. Delivery of the Securities will be made through the facilities of The
Depository Trust Company (“DTC”) unless the Underwriters instruct otherwise.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing
Fees. The Company, subject to Section 3(b), will comply with the requirements of Rule 430B
and will notify the Underwriters immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement or new registration statement
relating to the Securities shall become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the Registration
Statement or the filing of a new
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registration statement or any amendment or supplement to the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part thereof or for additional
information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or such new registration statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the suspension
of the qualification of the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if
the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities. The Company will effect the filings
required under Rule 424(b), in the manner and within the time period required by Rule 424(b)
(without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment. The Company shall pay the required Commission filing
fees relating to the Securities within the time required by Rule 456(b)(1) (i) of the 1933
Act Regulations without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a
post-effective amendment to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b)).
(b) Filing of Amendments and 1934 Act Documents. The Company will give the
Underwriters notice of its intention to file or prepare any amendment to the Registration
Statement or new registration statement relating to the Securities or any amendment,
supplement or revision to either any preliminary prospectus (including any prospectus
included in the Original Registration Statement or amendment thereto at the time it became
effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, and the Company will furnish the Underwriters with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may be, and will
not file or use any such document to which the Underwriters or counsel for the Underwriters
shall object. The Company has given the Underwriters notice of any filings made pursuant to
the 1934 Act or 1934 Act Regulations within 48 hours prior to the execution of this
Agreement; the Company will give the Underwriters notice of its intention to make any such
filing from the execution of this Agreement to the Closing Time and will furnish the
Underwriters with copies of any such documents a reasonable amount of time prior to such
proposed filing and will not file or use any such document to which the Underwriters or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to
the Underwriters and counsel for the Underwriters, without charge, signed copies of the
Original Registration Statement and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein or otherwise deemed to be a part thereof) and signed
copies of all consents and certificates of experts, and will also deliver to the
Underwriters, without charge, a conformed copy of the Original Registration Statement and of
each amendment thereto (without exhibits) for each of the Underwriters. The copies of the
Original Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter reasonably
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requested, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the 1933 Act, such
number of copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or to file a new registration statement
or amend or supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment, supplement or new registration
statement as may be necessary to correct such statement or omission or to comply with such
requirements, the Company will use its best efforts to have such amendment or new
registration statement declared effective as soon as practicable (if it is not an automatic
shelf registration statement with respect to the Securities) and the Company will furnish to
the Underwriters such number of copies of such amendment, supplement or new registration
statement as the Underwriters may reasonably request. If at any time following issuance of
an Issuer Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement (or any other registration statement
relating to the Securities) or the Statutory Prospectus or any preliminary prospectus or
included or would include an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, the Company will promptly
notify the Underwriters and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(f) Blue Sky Qualifications. The Company will use its commercially reasonable efforts,
in cooperation with the Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as the Underwriters
may designate and to maintain such qualifications in effect for a period of not less than
one year from the date hereof; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will also supply the Underwriters with such information
as is necessary for the determination of the legality of the Securities for investment under
the laws of such jurisdictions as the Underwriters may reasonably request.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its security holders as soon as
practicable an
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earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under “Use of Proceeds”.
(i) Listing. The Company will use its commercially reasonable efforts to effect the
listing of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 45 days from the date of the
Prospectus, the Company will not, without the prior written consent of the Underwriters, (i)
directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock, whether any such
swap or transaction described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall
not apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued
or options to purchase Common Stock granted pursuant to existing employee benefit plans of
the Company referred to in the Prospectus, (C) any shares of Common Stock issued by the
Company upon the exercise of any option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectus, or (D) the issuance of
Common Stock pursuant to the Company’s existing dividend reinvestment plan. Notwithstanding
the foregoing, if (1) during the last 17 days of the 45-day restricted period the Company
issues an earnings release or material news or a material event relating to the Company
occurs or (2) prior to the expiration of the 45-day restricted period, the Company announces
that it will release earnings results or becomes aware that material news or a material
event will occur during the 16-day period beginning on the last day of the 45-day restricted
period, the restrictions imposed in this clause (j) shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
(k) Reporting Requirements. The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(l) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless
it obtains the prior consent of the Underwriters, it has not made and will not make any
offer relating to the Securities that would constitute an “issuer free writing prospectus,”
as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405, required to be filed with the Commission. Any such free writing
prospectus consented to by the Underwriters or by the Company and the Underwriters, as the
case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company represents that it has treated or agrees that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has
complied and will comply with the requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission where required, legending
and record keeping.
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SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and exhibits) as originally
filed and of each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any
amendments or supplements thereto and any costs associated with electronic delivery of any of the
foregoing by the Underwriters to investors, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in connection with the
marketing of the Securities, including without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of aircraft and other transportation chartered in
connection with the road show, and (x) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the Underwriters in
accordance with the provisions of Section 5 or Section 8(a)(i) hereof, the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus; Payment of Filing Fee. The
Registration Statement is and remains effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the reasonable satisfaction
of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been
filed with the Commission in the manner and within the time period required by Rule 424(b) without
reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have
been filed and become effective in accordance with the requirements of Rule 430B). The Company
shall have paid the required Commission filing fees relating to the Securities in accordance with
Section 3(a) of this Agreement.
(b) Opinion of Counsel for Company. At Closing Time and on each Date of Delivery, the
Underwriters shall have received the favorable opinion, dated as of Closing Time and on each Date
of
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Delivery, of Xxxxxxxxx Xxxxxxx, P.A. and Xxxxxxx LLP, each counsel for the Company, and
addressed to the Underwriters and reasonably satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) each of the Company, the Significant Subsidiaries and the Property Subsidiaries is
duly incorporated or formed, and 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 the General Disclosure Package, 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, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus and the General
Disclosure Package; 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 and
Georgia;
(ii) all the outstanding shares of capital stock, partnership interests, limited
liability company interests or other equivalent equity interests of each Significant
Subsidiary and Property Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable (except to the extent the general partner’s interest), as
applicable, and except as described in the Prospectus and the General Disclosure Package or
a schedule to such counsel’s opinion, all outstanding shares of capital stock, partnership
interests, limited liability company interests or other equivalent equity interest of the
Significant Subsidiaries and the Property 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
and the General Disclosure Package, and the Securities will conform in all material respects
to the descriptions thereof contained in the Prospectus and the General Disclosure Package;
(iv) the Securities to be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company in accordance with the terms of this Agreement, against
payment of the consideration set forth in this Agreement will be validly issued and fully
paid and non-assessable and no holder of the Securities will be subject to personal
liability for the debts and obligations of the Company solely by reason of being such a
holder;
(v) the Concurrent Securities have been duly authorized for issuance and sale pursuant
to the Concurrent Sale Agreement, and when issued and delivered by the Company in accordance
with the Concurrent Sale Agreement, against payment of the consideration set forth in the
Concurrent Sale Agreement, will be validly issued and fully paid and non-assessable and no
holder of the Concurrent Securities or the Securities will be subject to personal liability
for the debts and obligations of the Company solely by reason of being such a holder;
(vi) no holder of outstanding shares of Common Stock or Preferred Stock has any
statutory preemptive right under the Maryland General Corporation Law or any similar right
under the charter or bylaws of the Company to subscribe to the Securities;
(vii) this Agreement and the Concurrent Sale Agreement each has been duly authorized,
executed and delivered by the Company;
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(viii) the Registration Statement has become effective under the 1933 Act to such
counsel’s knowledge;
(ix) to such counsel’s knowledge, any required filing of each prospectus relating to
the Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b) (without reference to Rule
424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433
has been made in the manner and within the time period required by Rule 433(d); and, to such
counsel’s knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission;
(x) the Registration Statement, including without limitation the Rule 430B Information,
the Prospectus, excluding the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or issue dates
(including without limitation each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations), other than the financial
statements and supporting schedules included therein or omitted therefrom, as to which such
counsel need express no opinion, complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations;
(xi) the documents incorporated by reference in the Registration Statement (other than
the financial statements and supporting schedules included therein or omitted therefrom, as
to which such counsel need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934
Act Regulations;
(xii) to the knowledge of such counsel, there is no pending or threatened action, suit
or proceeding, by 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 General Disclosure Package or the Prospectus which is not
adequately disclosed therein, and there is no franchise, contract or other document of a
character required to be described in the General Disclosure Package or the Prospectus, or
to be filed as an exhibit to the Registration Statement, which is not described or filed
thereto;
(xiii) no filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or agency,
domestic or foreign is required in connection with the performance by the Company of the
transactions contemplated herein and in the Concurrent Sale Agreement; except real estate
syndication laws and such as may be required under the blue sky laws of any jurisdictions in
connection with the purchase and distribution of the Securities and the Concurrent
Securities and such other approvals (specified in such opinion) as have been obtained;
provided that no opinion shall be required with respect to real estate syndication or blue
sky laws;
(xiv) except as set forth in the General Disclosure Package and the Prospectus, the
execution and delivery of this Agreement and the Concurrent Sale Agreement, the issuance and
sale of the Securities by the Company, or the consummation by the Company of any of the
other transactions contemplated in this Agreement, the Concurrent Sale Agreement or the
Registration Statement will not conflict with, result in a breach or violation of, or cause
the imposition of any lien, charge or encumbrance upon any property or assets of the Company
or any subsidiary
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pursuant to, (i) the charter or bylaws or similar instruments of the Company or any
subsidiary, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or instrument
known to such counsel to which the Company or any subsidiary is a party or to which its
property is subject where such conflicts, breaches, violations or liens, charges or
encumbrances would constitute a Material Adverse Effect, or (iii) any applicable law,
statute, rule, regulation, judgment, order, writ or decree, known to such counsel, of any
government, government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of its respective properties, assets or operations
where such conflicts, breaches, violations or liens, charges or encumbrances would
constitute a Material Adverse Effect;
(xv) to such counsel’s knowledge, no holders of securities of the Company have the
rights to the registration of such securities under the Registration Statement except for
those which have been effectively waived or are inapplicable to the offering of the
Securities and those pursuant to that certain Registration Rights Agreement, dated January
1, 1999, by and between Xxxxxxx X. Xxxx, Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxx Xxxx, and Xxxxxx
X. Xxxxxx doing business as Frankline Development Co., and the Company;
(xvi) the statements under Item 15 of the Registration Statement and under the captions
“Material U.S. Federal Income Tax Considerations,” “Description of Common and Preferred
Stock,” “Transfer Restrictions,” “Risk Factors” included or incorporated by reference in the
Prospectus and in the Registration Statement under Item 12, insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed therein, are
accurate in all material respects;
(xvii) the Company is not, and after giving effect to the offering and sale of the
Securities and the Concurrent Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus, will not be required to register as,
an “investment company” as defined in the Investment Company Act of 1940, as amended; and
(xviii) 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 for its
taxable years ended December 31, 1995 through 2010, the Company is in a position to continue
its qualification and taxation as a “real estate investment trust” within the definition of
Section 856(a) of the Code for the taxable year ending December 31, 2011, 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 for United States federal income
tax purposes.
In addition, such counsel shall state that nothing has come to its attention that would lead
it to believe that the Original Registration Statement or any amendment thereto (except for
financial statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which such counsel need make no statement), at the time such
Original Registration Statement or any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; that the Registration Statement, including
the Rule 430B Information (except for financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to which such counsel need
make no statement), at each deemed effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) of the 1933 Act Regulations, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading; or that the Prospectus or any amendment or supplement thereto (except
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for financial statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which such counsel need make no statement), at the
time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. In addition, such counsel shall state
that nothing has come to such counsel’s attention that would lead it to believe that the General
Disclosure Package (except for the financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to which such counsel need
make no statement), as of the Applicable Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the light
of circumstances under which they were made, not misleading. With respect to statements contained
in the General Disclosure Package, any statement contained in any of the constituent documents
shall be deemed to be modified or superseded to the extent that any information contained in
subsequent constituent documents modifies or replaces such statement.
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of the laws of any jurisdiction other than the States of Maryland, Florida, Georgia, Massachusetts
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
(but not as to legal conclusions), to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
(c) Opinion of Counsel for Underwriters. At the Closing Time, the Underwriters shall have
received the favorable opinion of DLA Piper LLP (US), counsel for the Underwriters, in form and
substance satisfactory to the Underwriters.
(d) Officers’ Certificate. At the Closing Time, there shall not have been, since the date
hereof, since the Applicable Time or since the respective dates as of which information is given in
the Prospectus or the General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, and the Underwriters shall have received a certificate of the president or a vice
president of the Company and of the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and
correct, as if made on and as of such date, and the Company has complied with all the
agreements and satisfied all the conditions on their part to be performed or satisfied at or
prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued and no proceedings for that purpose have
been instituted or are pending or threatened under the 1933 Act; and
(iii) subsequent to the respective dates as of which information is given in the
Registration Statement, Prospectus or the General Disclosure Package, there has not been (a)
any change, or any development or event that reasonably could be expected to result in a
change, that has or reasonably could be expected to have a Material Adverse Effect, whether
or not arising in the ordinary course of business, (b) any transaction that is material to
the Company and the
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Subsidiaries considered as one enterprise, (c) any obligation, direct or contingent,
that is material and adverse to the Company and the Subsidiaries considered as one
enterprise, incurred by the Company or the Subsidiaries, (d) any adverse change in the
capital stock or outstanding indebtedness of the Company or any Subsidiary that is material
and adverse to the Company and the Subsidiaries considered as one enterprise, (e) any
dividend or distribution of any kind declared, paid or made on the capital stock or other
equity interests of the Company or any Subsidiary (other than any dividend or distribution
to the Company or another Subsidiary), or (f) any loss or damage (whether or not insured) to
the property of the Company or any Subsidiary that has been sustained or will have been
sustained that has or may reasonably be expected to have a Material Adverse Effect.
(e) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Underwriters shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Underwriters shall have received from
Ernst & Young LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days prior to the Closing
Time.
(g) Approval of Listing. At the Closing Time, the Securities shall have been approved for
listing on the New York Stock Exchange, subject only to an official notice of issuance.
(h) No Objection. FINRA shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(i) Lock-up Agreements. At the date of this Agreement, the Underwriters shall have received
an agreement substantially in the form of Exhibit B hereto signed by the persons and
entities listed on Schedule F hereto.
(j) Conditions to Purchase of Option Securities. In the event that the Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained herein and the statements
in any certificates furnished by the Company and any subsidiary of the Company shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriters shall
have received:
| (i) | Officers’ Certificate. A certificate, dated such Date of Delivery, of the president or a vice president of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(d) hereof remains true and correct as of such Date of Delivery. | ||
| (ii) | Opinion of Counsel for Company. The favorable opinions required by Section 5(b) dated as of such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery. | ||
| (iii) | Opinion of Counsel for Underwriters. The favorable opinion of DLA Piper LLP (US), counsel for the Underwriters, dated such Date of Delivery, relating to the |
-21-
| Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(c) hereof. | |||
| (iv) | Bring-down Comfort Letter. A letter from Ernst & Young LLP, in form and substance satisfactory to the Underwriters and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than five days prior to such Date of Delivery. |
(k) Additional Documents. At the Closing Time and at each Date of Delivery, counsel for the
Underwriters shall have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
(l) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to
the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the Underwriters to purchase the relevant Option Securities, may be terminated by
the Underwriters by notice to the Company at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
SECTION 6. Indemnity and Contribution by the Company and the Underwriters:
(a) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, as
such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents
and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, in any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) or in any “road show” (as defined in Rule 433 under the
Securities Act) not constituting an “Issuer Free Writing Prospectus,” or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement including without
limitation, by means of a Consent to Judgment of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that any such settlement is effected with the written
consent of the Company;
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(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Underwriters), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter expressly for use in the Registration
Statement (or any amendment thereto), including any preliminary prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, the
Company’s directors, each of the Company’s officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter expressly for use
therein.
(c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriters, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 6 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred (i) in such
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proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Shares pursuant to this
Agreement, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Shares pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the offering of the Shares
pursuant to this Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the Shares as set forth on the
cover of the Prospectus.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 6. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 6 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 6, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 6 are several in
proportion to the principal amount of Shares set forth opposite their respective names in
Schedule A hereto and not joint.
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SECTION 7. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company, and (ii) delivery of, and payment for,
the Securities.
SECTION 8. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement in their absolute
discretion, by notice to the Company, at any time at or prior to the Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus (exclusive of any supplement thereto) or General Disclosure
Package, any material adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of the Underwriters, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the New York Stock Exchange or the NASDAQ Global
Market has been suspended or materially limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, FINRA or any other governmental authority, or (iv) a material
disruption has occurred in commercial banking or securities settlement or clearance services in the
United States, or (v) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 9. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time or a Date of Delivery to purchase the Securities which
it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
non-defaulting Underwriters shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting Underwriters, or any of the Underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the non-defaulting Underwriters shall not have completed
such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters; or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to
be purchased on such date, this Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the Underwriters to purchase and of the
Company to sell
-25-
the Option Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either (i) the Underwriters or (ii) the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 9.
SECTION 10. Tax Disclosure. Notwithstanding any other provision of this Agreement,
from the commencement of discussions with respect to the transactions contemplated hereby, the
Company (and each employee, representative or other agent of the Company) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure (as such terms are
used in Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations promulgated
thereunder) of the transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided relating to such tax treatment and tax
structure.
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be sent to the Barclays Capital Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Syndicate Registration (fax: 000-000-0000), and
notices to the Company shall be directed to it at 0000 X.X. Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxx Xxxxx,
Xxxxxxx 00000 (fax no.: (000) 000-0000), Attention: Chief Financial Officer.
SECTION 12. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, (c) no Underwriter has assumed or
will assume an advisory or fiduciary responsibility in favor of the Company with respect to the
offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters) and no Underwriter
has any obligation to the Company with respect to the offering contemplated hereby except the
obligations expressly set forth in this Agreement, (d) the Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory
or tax advice with respect to the offering contemplated hereby and the Company has consulted its
own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 13. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Underwriters, or any of them,
with respect to the subject matter hereof.
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SECTION 14. Parties. This Agreement shall inure to the benefit of and be binding upon
each of the Underwriters and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 6 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 16. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 18. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its
terms.
| Very truly yours, EQUITY ONE, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President, General Counsel and Secretary |
|||
[Signature page to the Underwriting Agreement.]
-28-
| CONFIRMED AND ACCEPTED, as of the date first above written: BARCLAYS CAPITAL INC. |
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| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | Vice President | |||
[Signature page to the Underwriting Agreement.]
-29-
SCHEDULE A
| Number of | ||||
| Initial | ||||
| Name of Underwriter | Securities | |||
Barclays Capital Inc. |
5,000,000 | |||
Total |
5,000,000 | |||
Sch A-1
SCHEDULE B
| Maximum Number of | ||||||||
| Number of Initial | Option | |||||||
| Name of Underwriter | Securities to be Sold | Securities to Be Sold | ||||||
Barclays Capital Inc. |
5,000,000 | 750,000 | ||||||
Total |
5,000,000 | 750,000 | ||||||
Sch B-1
SCHEDULE C
1. Public offering price: $19.42
2. 5,000,000 Initial Securities and 750,000 Option Securities
Sch C-1
SCHEDULE D
5,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
(Par Value $0.01 Per Share)
1. The public offering price per share for the Securities, determined as provided in
said Section 2, shall be $19.42.
2. The purchase price per share for the Securities to be paid by the several
Underwriters shall be $19.321; provided that the purchase price per share for any Option
Securities purchased upon the exercise of the option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option Securities.
Sch D-1
SCHEDULE E
EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS
None
Sch E-1
SCHEDULE F
List of persons and entities subject to lock-up
Xxxxx Xxxxxxx
Xxxx Xxx-Xxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxxxxx
Xxxxxx Xxxx
Xxxxx Xxxxxxxx, Ph.D.
Xxxxxxx X. Xxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Sch F-1
Exhibit A
Purchaser
MGN (USA) Inc. 1,000,000 Shares
Exhibit B
May 18, 2011
Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
| Re: Proposed Public Offering by Equity One, Inc. |
Dear Sirs:
The undersigned, a officer and/or director or stockholder of Equity One, Inc., a Maryland
corporation (the “Company”), understands that Barclays Capital Inc. (the “Underwriter”) proposes to
enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for
the public offering of shares (the “Securities”) of the Company’s common stock, par value $0.01 per
share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon
the undersigned as an officer and/or director or stockholder of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with the Underwriter that, during a period of 45 days from the date of the
Underwriting Agreement, the undersigned will not, without the prior written consent of the
Underwriter directly or indirectly [(including through Xxxxx Xxxx Properties & Investments, Ltd.
and other affiliates] [(other than with respect to the sale of an aggregate of 1,000,000 shares of
Common Stock to one or more affiliates of Gazit-Globe Ltd.)] [(including through affiliates)]
[(including through Liberty International Holdings Limited and other affiliates)], (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant for the sale of, lend or otherwise dispose of
or transfer any shares of the Company’s Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires the power of
disposition, or file, or cause to be filed, any registration statement under the Securities Act of
1933, as amended (the “1933 Act”), with respect to any of the foregoing (collectively, the “Lock-Up
Securities”) or to otherwise participate as a selling securityholder in any manner in any
registration effected by the company under the 1933 Act, (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction
is to be settled by delivery of Common Stock or other securities, in cash or otherwise or (iii)
publicly disclose the intention to effect any transactions described in (i) or (ii).
Notwithstanding the foregoing, and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities without the prior written consent of the Underwriter provided that
(1) the Underwriter receives a signed lock-up agreement for the balance of the lockup period from
each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall
not involve a disposition for value, (3) such transfers are not required to be reported in any
public report or filing with the Securities and Exchange Commission, or otherwise and (4) the
undersigned does not otherwise voluntarily effect any public filing or report regarding such
transfers:
| (i) | as a bona fide gift or gifts; or | ||
| (ii) | to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate |
| family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousins); or | |||
| (iii) | as a distribution to limited partners or stockholders of the undersigned; or | ||
| (iv) | to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned. |
Unless FINRA Rule 2711(f)(4) and NYSE Rule 472(f)(4) are inapplicable to the Underwriters,
notwithstanding the foregoing, if:
(1) during the last 17 days of the 45-day lock-up period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 45-day lock-up period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur during
the 16-day period beginning on the last day of the 45-day lock-up period,
then in each case, the restrictions imposed by this lock-up agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event, as applicable, unless the Underwriter waives, in
writing, such extension.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in
compliance with the foregoing restrictions.
| Very truly yours, |
||||
| Signature: | ||||
| Print Name: | ||||
