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EXHIBIT 1.01
12,000,000 SHARES
ST. XXX CORPORATION
COMMON STOCK, NO PAR VALUE
FORM OF
UNDERWRITING AGREEMENT
__________, 1998
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_____________, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx and Associates, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxxxx, Lufkin & Xxxxxxxx International
Xxxxxxx Xxxxx International
Xxxxxxx Xxxxx and Associates, Inc.
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The Xxxxxx X. xxXxxx Testamentary Trust, a trust established under The
Last Will and Testament of Xxxxxx X. xxXxxx (the "SELLING STOCKHOLDER"),
proposes to sell to the several Underwriters (as defined below) an aggregate of
12,000,000 shares (the "FIRM SHARES") of the Common Stock, no par value, of St.
Xxx Corporation, a Florida corporation (the "COMPANY").
It is understood that, subject to the conditions hereinafter stated,
10,200,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 1,800,000 Firm Shares (the "INTERNATIONAL SHARES") will be sold to the
several International Underwriters named in Schedule II hereto (the
"INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of such
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International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx & Associates, Inc. shall act as
representatives (the "U.S. REPRESENTATIVES") of the several U.S. Underwriters,
and Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxxxx, Lufkin & Xxxxxxxx
International, Xxxxxxx Xxxxx International and Xxxxxxx Xxxxx & Associates, Inc.
shall act as representatives (the "INTERNATIONAL REPRESENTATIVES") of the
several International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the "UNDERWRITERS."
The Selling Stockholder also proposes to sell to the several
Underwriters not more than an additional 1,800,000 shares of the Common Stock,
no par value, of the Company (the "ADDITIONAL SHARES") if and to the extent that
the U.S. Representatives shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of Common Stock granted to
the U.S. Underwriters in Section 3 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES." The outstanding
shares of Common Stock, no par value, of the Company (including the Shares) are
hereinafter referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "PROSPECTUS" (including,
in the case of all references to the Registration Statement and the Prospectus,
documents incorporated therein by reference). If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT"
shall be deemed to include such Rule 462 Registration Statement.
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1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")
and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective, did not contain and,
as amended or supplemented, if applicable, will not contain any 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) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information furnished to the
Company in writing by any Underwriter through you expressly for use
therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the state of Florida
with the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and the Company is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d) Each significant subsidiary of the Company as defined in
Rule 1-02(w) of Regulation S-X ( "SIGNIFICANT SUBSIDIARY") has been
duly incorporated and is an existing corporation in good standing under
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the laws of the jurisdiction of its incorporation and has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus; and each Significant Subsidiary of the
Company is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and,
except for [ ] shares of capital stock (representing approximately 46%
of the issued and outstanding shares) of Florida East Coast Industries,
Inc. ("FECI") and the capital stock of the subsidiaries of FECI, are
owned by the Company free and clear of all liens, encumbrances,
equities or claims.
(e) Each material venture partnership or material limited
liability company in which the Company has an interest is listed on
Schedule III hereto (collectively, the "JOINT VENTURES"), and each has
been duly formed and is existing and in good standing under the laws of
its state of organization, with power and authority to own, lease and
operate its properties and to conduct the business in which it is
engaged. Each Joint Venture is duly qualified or registered as a
foreign limited partnership or limited liability company to transact
business in each jurisdiction in which such qualification or
registration 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 be registered would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(h) The Common Stock has all been duly authorized and is
validly issued, fully paid and non-assessable.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene (i) any provision of applicable law or the
certificate of incorporation or by-laws of the Company, (ii) any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is
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material to the Company and its subsidiaries, taken as a whole or (iii)
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, except in the
case of clauses (ii) and (iii) above to the extent as would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (as amended or supplemented).
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(n) With respect to each income producing property, any
development or developable property identified in the Registration
Statement and any other property in excess of 1,000 acres owned by the
Company or one of its subsidiaries, whether such property is held for
development, sale, lease or any other purpose (the "PROPERTIES"), (i)
the Company or one of its subsidiaries has good and marketable fee
simple title to the land underlying the Properties and good and
marketable title to
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the improvements thereon, subject to utility easements serving such
Properties, to zoning and similar governmental land use matters
affecting such Properties that are consistent with the current uses of
such Properties and to liens, encumbrances, defects and other matters
of title that would not have a material adverse effect on the value of
such Properties or materially interfere with their current or currently
anticipated future uses, (ii) all liens, charges, encumbrances, claims,
or restrictions on or affecting any of the Properties and the assets of
the Company which are required to be disclosed in the Prospectus are
disclosed therein; (iii) except as disclosed in the Prospectus, no
person has an option or right of first refusal to purchase all or part
of any Property or any interest therein; (iv) each of the Properties
complies with all applicable codes, laws and regulations (including,
without limitation, building and zoning codes, laws and regulations and
laws relating to access to the Properties), except to the extent
disclosed in the Prospectus and except for such failures to comply that
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and (v) the Company has no knowledge of
any pending or threatened condemnation proceedings, zoning change, or
other similar proceeding or action that would affect the size of, use
of, improvements on, construction on or access to any of the
Properties, except such proceedings or actions that would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(o) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) Except as disclosed in the Prospectus, there are no costs
or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws
or any permit, license or approval, and any potential liabilities to
third parties)
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which would, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(q) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(r) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
(s) Except as described in the Prospectus, the Company has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner currently conducted, as described in the
Prospectus, except to the extent that the failure to so have, obtain or
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(t) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly in all material respects the
consolidated financial position and results of operations of the
Company, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except
as otherwise stated therein.
(u) Subsequent to the date as of which information is given in
the Prospectus, (i) the Company and its subsidiaries have not incurred
any material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business;
(ii) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary and
customary dividends; and (iii) there has not been any material change
in the capital stock, short-term debt or long-term debt of the Company
and its consolidated subsidiaries, except in each case as described in
the Prospectus (as amended or supplemented).
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(v) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business
now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(w) No material labor dispute with the employees of the
Company or any of its subsidiaries exists, except as described in or
contemplated by the Prospectus, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that would have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(x) The Company and each of its subsidiaries 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; in the past five years, neither
the Company nor any such subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely
affect the Company and its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus.
(y) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, except for such certificates, authorizations and permits
the non-possession of which would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole, and neither the
Company nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or
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permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus.
(z) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(aa) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers, suppliers or contractors of the Company, on
the other hand, which is required to be described in the Prospectus
which is not so described.
2. Representations and Warranties of the Selling Stockholder. The
Selling Stockholder represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder.
(b) The execution and delivery by the Selling Stockholder of,
and the performance by the Selling Stockholder of its obligations
under, this Agreement and the Custody Agreement signed by the Selling
Stockholder and First Union National Bank Corporate Trust, as
Custodian, relating to the deposit of the Shares to be sold by the
Selling Stockholder (the "CUSTODY AGREEMENT") and the consummation of
the transactions contemplated thereby will not contravene any provision
of applicable law, or the Last Will and Testament of Xxxxxx X. xxXxxx,
by which the Selling Stockholder was established, or any agreement or
other instrument binding upon the Selling Stockholder or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Selling Stockholder, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Selling Stockholder of
its obligations under this
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Agreement or the Custody Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(c) The Selling Stockholder has, and on the Closing Date will
have, valid title to the Shares and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and the Custody Agreement and to sell, transfer and deliver
the Shares.
(d) The Custody Agreement has been duly authorized, executed
and delivered by the Selling Stockholder and is a valid and binding
agreement of the Selling Stockholder.
(e) Delivery of the Shares pursuant to this Agreement will
pass title to such Shares free and clear of any security interests,
claims, liens, equities and other encumbrances.
(f) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(g) To the best of the knowledge of the Selling Stockholder,
after due inquiry, (i) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if
applicable, will not contain any 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, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statements of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph 2(g) do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
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(h) the statements in the Prospectus under the captions
"Summary--The Xxxxxx X. xxXxxx Testamentary Trust" and "The Xxxxxx X.
xxXxxx Testamentary Trust," the first paragraph under the caption
"Certain Transactions" and the sections relating to the Trust under the
caption "Principal and Selling Stockholders" insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein.
3. Agreements to Sell and Purchase. The Selling Stockholder hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Selling Stockholder at $______ a share (the "PURCHASE PRICE") the
number of Firm Shares set forth in Schedules I and II hereto opposite the name
of such Underwriter.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Stockholder
agrees to sell to the U.S. Underwriters the Additional Shares, and the U.S.
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 1,800,000 Additional Shares at the Purchase Price. If the U.S.
Representatives, on behalf of the U.S. Underwriters, elect to exercise such
option, the U.S. Representatives shall so notify the Selling Stockholder and the
Company in writing not later than 30 days after the date of this Agreement,
which notice shall specify the number of Additional Shares to be purchased by
the U.S. Underwriters and the date on which such shares are to be purchased.
Such date may be the same as the Closing Date (as defined below) but not earlier
than the Closing Date nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in Section 5 hereof
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. If any Additional Shares are to be purchased, each
U.S. Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
the U.S. Representatives may determine) that bears the same proportion to the
total number of Additional Shares to be purchased as the number of U.S. Firm
Shares set forth in Schedule I hereto opposite the name of such U.S. Underwriter
bears to the total number of U.S. Firm Shares.
Each of the Company and the Selling Stockholder hereby agrees that,
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf
of the Underwriters, it will not, during the period ending 180 days after the
date of the Prospectus, (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 to purchase, lend, file a registration statement or
exercise a registration
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right in respect of, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
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 Shares to be sold hereunder, (B) the
issuance by the Company of shares of Common Stock upon the exercise of an option
or a warrant or the conversion of a security outstanding on the date of the
Prospectus of which the Underwriters have been advised in writing or which are
disclosed in the Prospectus, (C) the issuance of shares of Common Stock as
consideration for future acquisitions by the Company or (D) the grant of options
under the Company's stock option plans, provided such options do not vest prior
to the termination of the 180-day period referenced in this paragraph, and
provided further that, in the case of subclauses (B) and (C), the recipient of
any such issued shares agrees in writing to be bound by the transfer
restrictions set forth herein. In addition, the Selling Stockholder, agrees
that, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on
behalf of the Underwriters, it will not, during the period ending 180 days after
the date of the Prospectus, make any demand for, or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
4. Terms of Public Offering. The Selling Stockholder is advised by
you that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Selling
Stockholder is further advised by you that the Shares are to be offered to the
public initially at $___ a share (the "PUBLIC OFFERING PRICE") and to certain
dealers selected by you at a price that represents a concession not in excess of
$____ a share under the Public Offering Price, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of $___ a
share, to any Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by
the Selling Stockholder shall be made to the Selling Stockholder in Federal or
other funds immediately available in New York City against delivery of such Firm
Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on [insert date which is 3 business days after the date of
this Agreement], 1998, or at such other time on the same or such other date, not
later than [insert date which is 5 business days after the date of this
Agreement], 1998, as shall be agreed upon in writing by you, the Company and the
Selling
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Shareholder. The time and date of such payment are hereinafter referred to as
the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Selling
Stockholder in Federal or other funds immediately available in New York City
against delivery of such Additional Shares for the respective accounts of the
several U.S. Underwriters at 10:00 a.m., New York City time, on the date
specified in the notice described in Section 3 or at such other time on the same
or on such other date, in any event not later than [insert date which is 10
business days after expiration of the green shoe option], 1998, as shall be
agreed upon in writing by you, the Company and the Selling Shareholder. The time
and date of such payment are hereinafter referred to as the "OPTION CLOSING
DATE."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Selling Stockholder to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than 4:00 p.m. (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
change, or any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
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(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date, and signed by each of the chief
executive officer and the chief financial officer of the Company, to
the effect set forth in Section 6(a) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date, that the
Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date and with respect to certain acreage and other
real property data.
Each of the officers signing and delivering such certificate
may rely upon the best of his knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx X. Xxxxxx, Senior Vice President and General
Counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
state of Florida with the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) each Significant Subsidiary of the Company has
been duly incorporated and is an existing corporation in good
standing under the laws of the jurisdiction of its
incorporation with the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, and each Significant Subsidiary of the Company is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
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(iii) the authorized capital stock of the Company
conforms as to legal matters in all material respects to the
description thereof contained in the Prospectus;
(iv) the Common Stock has been duly authorized and
is validly issued, fully paid and non-assessable;
(v) all of the issued shares of capital stock of
each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and
non-assessable and, except for [ ] shares of capital stock
(representing approximately 46% of the issued and outstanding
shares) of FECI and the capital stock of the subsidiaries of
FECI, are owned by the Company free and clear of all liens,
encumbrances, equities or claims;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement do not result in a breach or violation of the
laws of the State of Florida or the certificate of
incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court of the United States or the State of Florida having
jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency of the State of Florida
is required for the performance by the Company of its
obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares;
(viii) the statements (A) in the Prospectus under the
captions "Risk Factors--Risks Relating to Real Estate
Operations--Regulation," "Risk Factors--Risks Relating to
Forestry Operations--Regulation," "Risk Factors--Risks
Relating to Transportation Operations--Regulation," "Risk
Factors--Environmental Matters," "Business and
Properties--Real Estate--
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Regulation," "Business and Properties--Forestry-- Regulation,"
"Business and Properties--Transportation--Regulation,"
"Business and Properties--Sugar--Regulation," "Business and
Properties--Environmental Proceedings," "Certain
Transactions," and "Description of Common Stock" and (B) in
the Registration Statement in Item 15, in each case insofar as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present
such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(ix) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described
or filed as required;
(x) with respect to each of the properties listed on
Schedule IV hereto (the "SCHEDULED PROPERTIES"), to the best
of such counsel's knowledge, after due inquiry, (i) the
Company or one of its subsidiaries has good and marketable fee
simple title to the land underlying the Scheduled Properties
and good and marketable title to the improvements thereon,
subject, however, to utility easements serving such
Properties, to zoning and similar governmental land use
matters affecting such Scheduled Properties that are
consistent with the current uses of such Properties and to
matters of title not materially adversely affecting the
marketability of title to such Scheduled Properties, and (ii)
except as disclosed in the Prospectus no person has a
contractual option or contractual right of first refusal to
purchase all or part of any Scheduled Property or any interest
therein;
(xi) to the best of such counsel's knowledge, the
Company and its subsidiaries (A) are in material compliance
with any and all applicable Environmental Laws, (B) have
received all material permits, licenses or other approvals
required of them under applicable Environmental Laws to
conduct their respective businesses and (C) are in material
compliance with all terms and
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conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(xii) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed
(or, if an amendment with respect to any such document was
filed, when such amendment was filed), complied as to form in
all material respects with the Exchange Act (except as to the
financial statements and schedules and other financial and
statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion);
and
(xiii) the Registration Statement and Prospectus
(except for financial statements and schedules and other
financial and statistical data included therein as to which
such counsel need not express any opinion) comply as to form
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that he has no reason to believe
that (except for financial statements and schedules and other financial
and statistical data as to which such counsel need not express any
belief) the Registration Statement and the prospectus included therein
at the time the Registration Statement became effective contained any
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 and has no reason to believe that (except for
financial statements and schedules and other financial and statistical
data as to which such counsel need not express any belief) the
Prospectus contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx & Xxxxxxx, special counsel for the Company, dated
the Closing Date, to the effect that:
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(i) the Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge, no
stop order proceedings with respect thereto are pending or
threatened under the Act;
(ii) the authorized capital stock of the Company
conforms in all material respects to the description thereof
contained in the Prospectus;
(iii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement do not result in a breach or violation of the
federal laws of the United States or the State of New York or
the certificate of incorporation or by-laws of the Company or,
to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court of the United States or the
State of New York having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency of
the United States or the State of New York is required for the
performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the
offer and sale of the Shares;
(iv) the statements (A) in the Prospectus under the
caption "Description of Common Stock" and (B) in the
Registration Statement in Item 15, in each case insofar as
such statements constitute summaries of legal matters, are
accurate in all material respects;
(v) the Company is not and, after giving effect to
the offering and sale of the Shares, will not be an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended; and
(vi) the Registration Statement and Prospectus
(except for financial statements and schedules and other
financial data included therein as to which such counsel need
not express any opinion) comply as to form in all material
respects with the
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Securities Act and the applicable rules and regulations of the
Commission thereunder.
In addition, such counsel shall also state that no facts came
to such counsel's attention that caused such counsel to believe that
the Registration Statement, at the time it 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, or that the Prospectus (including the
incorporated documents), as of its date or as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no belief with respect to the
financial statements, schedules and other financial data included in
the Registration Statement or the Prospectus or incorporated therein.
(e) The Underwriters shall have received on the Closing Date
an opinion of McGuire, Woods, Battle & Xxxxxx, L.L.P., counsel for the
Selling Stockholder, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized,
executed and delivered by or on behalf of the Selling
Stockholder;
(ii) the execution and delivery by the Selling
Stockholder of, and the performance by the Selling Stockholder
of its obligations under this Agreement and the Custody
Agreement will not contravene (A) any provision of applicable
law, or The Last Will and Testament of Xxxxxx X. xxXxxx, by
which the Selling Stockholder was established, (B) to the
knowledge of such counsel, any agreement or other instrument
binding upon the Selling Stockholder or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Selling Stockholder and (C) no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the
performance by the Selling Stockholder of its obligations
under this Agreement or the Custody Agreement except such as
may be required by the securities or Blue Sky laws of the
various states in connection with offer and sale of the
Shares;
(iii) the Selling Stockholder has valid title to the
Shares and the legal right and power, and all authorization
and approval
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required by law, to enter into this Agreement and the Custody
Agreement and to sell, transfer and deliver the Shares;
(iv) the Custody Agreement has been duly authorized,
executed and delivered by the Selling Stockholder and is a
valid and binding agreement of the Selling Stockholder;
(v) upon the deposit of the Shares registered in the
name of Cede & Co. or such other nominee designated by the
Depository Trust Company ("DTC"), if applicable, and payment
therefore, as provided herein, and the crediting of the Shares
to the Underwriters' accounts with DTC (assuming that Cede &
Co. or such other nominee lacks notice of any "adverse claim"
(as defined in Section 8-102 of the Uniform Commercial Code as
adopted in the State of New York (the "UCC")) to the deposited
Shares), (A) Cede & Co. or such other nominee designated by
DTC shall be a "protected purchaser" of the Shares (within the
meaning of Section 8-102 of the UCC); (B) under the UCC the
Underwriters will acquire a valid security entitlement to the
Shares; and (C) no action based on any "adverse claim" (as
defined in Section 8-102 of the UCC) may be asserted against
the Underwriters with respect to such security entitlement
(assuming that the Underwriters lack notice of any such
adverse claim); and
(vi) the statements in the Prospectus under the
captions "Summary--The Xxxxxx X. xxXxxx Testamentary Trust"
and "The Xxxxxx X. xxXxxx Testamentary Trust" in so far as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein.
(f) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters,
dated the Closing Date, in form and substance satisfactory to the
Underwriters.
With respect to Section 6(c)(xiii) above, Xxxxxx X. Xxxxxx and
with respect to Section 6(d)(xii) above, Xxxxxx & Xxxxxxx, may state
that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
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amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification,
except as specified.
The opinions of Xxxxxx X. Xxxxxx, Xxxxxx & Xxxxxxx and
McGuire, Woods, Battle and Xxxxxx, L.L.P., described in Sections 6(c),
6(d) and 6(e) above shall be rendered to the Underwriters at the
request of the Company or of the Selling Stockholder, as the case may
be, and shall so state therein.
(g) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from KPMG Peat Marwick LLP, independent public
accountants, 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;
provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and certain shareholders, officers and
directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date.
The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on the
Option Closing Date of such documents as you may reasonably request with respect
to the good standing of the Company, the due authorization and issuance of the
Additional Shares and other matters related to the issuance of the Additional
Shares.
7. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, five signed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 10:00 a.m. New York City time on the
business day next
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succeeding the date of this Agreement and during the period mentioned
in Section 7(c) below, as many copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters, the
Selling Stockholder and the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request, provided, however, that nothing herein shall
require the Company to qualify as a foreign corporation in any state,
to execute a general consent to service of process in any state or to
subject itself to taxation in any jurisdiction in which it is otherwise
not so subject.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending [March 31, 1999] that satisfies the
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provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of the
obligations of the Company and the Selling Stockholder under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters (except any transfer or
other taxes payable thereon, which shall be paid by the Selling Stockholder),
(iii) the cost of printing or producing any Blue Sky or Legal Investment
memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in Section
7(d) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky or Legal Investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., (v) the cost of
printing certificates representing the Shares, (vi) the costs and charges of any
transfer agent, registrar or depositary, and (vii) all other costs and expenses
incident to the performance of the obligations of the Company and the Selling
Stockholder hereunder for which provision is not otherwise made in this Section,
except that the Selling Stockholder shall pay (i) all fees, disbursements and
expenses of its counsel and its financial advisors and any transfer or other
taxes payable on transfer of the Shares to the Underwriters and (ii) the first
$200,000 of all costs and expenses of the Company, the Underwriters and the
Selling Stockholder relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Shares,
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 with the prior approval of the
Company, travel and lodging
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expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show. It is understood, however, that except as provided in this Section,
Section 9 entitled "Indemnity and Contribution", and the last paragraph of
Section 11 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected
with any offers they may make and all costs and expenses of the Company, the
Underwriters and the Selling Stockholder relating to investor presentations on
any "road show" in excess of $200,000.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished to the Company in writing by any Underwriter through you
or by the Selling Stockholder, expressly for use therein; provided, however,
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, the foregoing
indemnity agreement shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Shares to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such failure
is the result of noncompliance by the Company with Section 7(a) hereof.
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(b) The Selling Stockholder agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to information relating to such Selling Stockholder furnished in
writing by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto; provided, that with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus the indemnity agreement contained in this subsection (b)
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased any Shares, to the
extent that a prospectus relating to such Shares was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Shares to such person, a copy of the Prospectus
if the Company had previously furnished copies thereof to such Underwriter.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Stockholder, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or the Selling Stockholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information furnished to the Company in writing by
any Underwriter through
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you expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to conflicts of interests
between them. It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for (i) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, (ii) the fees and expenses of more than one separate firm (in addition to
any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section and (iii) the fees and expenses of more than
one separate firm (in addition to any local counsel) for the Selling Stockholder
and all persons, if any, who control any Selling Stockholder within the meaning
of either such Section, and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the Underwriters
and such control persons of any Underwriters, such firm shall be designated in
writing by Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such separate
firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Stockholder and such control persons of
the Selling Stockholder, such firm shall be designated in writing by the persons
named as attorneys-in-fact for the Selling Stockholder under the Powers of
Attorney. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party
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from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholder on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by the
Selling Stockholder and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company and the Selling Stockholder on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholder or by the
Underwriters and
27
29
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 9 are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint.
(f) The Company, the Selling Stockholder and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this Section
9 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 that does
not take account of the equitable considerations referred to in Section 9(e).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, 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 that such Underwriter
has otherwise been required to pay by reason of 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 9 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
9 and the representations, warranties and other statements of the Company and
the Selling Stockholder contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Selling Stockholder or any person controlling
the Selling Stockholder, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities
28
30
of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 10(a)(i) through 10(a)(iv), such event, singly
or together with any other such event, makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
the Selling Stockholder for the purchase of such Firm Shares are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter, the Company or the Selling
Stockholder. In any such case either you or the Selling Stockholder, shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Additional Shares and the aggregate number of Additional
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Shares to be purchased, the non-defaulting
Underwriters shall have the option to (i) terminate
29
31
their obligation hereunder to purchase Additional Shares or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Selling Stockholder
or the Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Selling Stockholder or the Company
shall be unable to perform its obligations under this Agreement, the party whose
failure, refusal or inability to perform caused such termination will reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
30
32
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
St. Xxx Corporation
By:
------------------------------------
Name:
Title:
The Xxxxxx X. xxXxxx Testamentary Trust
By:
------------------------------------
Trustee
By:
------------------------------------
Trustee
By:
------------------------------------
Trustee
By:
------------------------------------
Trustee
By:
------------------------------------
Trustee
By:
------------------------------------
Trustee
31
33
Accepted as of the date hereof
XXXXXX XXXXXXX & CO.
INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
Acting severally on behalf of themselves and the
several U.S. Underwriters named in Schedule I
hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
---------------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED
XXXXXXXXX, LUFKIN & XXXXXXXX
INTERNATIONAL
XXXXXXX XXXXX INTERNATIONAL
XXXXXXX XXXXX & ASSOCIATES, INC.
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By Xxxxxx Xxxxxxx & Co. International Limited
By:
---------------------------------------------
Name:
Title: Principal
32
34
SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF FIRM SHARES
U.S. UNDERWRITER TO BE PURCHASED
-------------------------------------------------------------- ---------------------
Xxxxxx Xxxxxxx & Co. Incorporated.............................
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation..........................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.........................................
Xxxxxxx Xxxxx & Associates, Inc...............................
---------------------
Total:...............................................
=====================
35
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF FIRM SHARES
INTERNATIONAL UNDERWRITER TO BE PURCHASED
-------------------------------------------------------------- ---------------------
Xxxxxx Xxxxxxx & Co. International Limited.....................
Xxxxxxxxx, Lufkin & Xxxxxxxx International ....................
Xxxxxxx Xxxxx International....................................
Xxxxxxx Xxxxx & Associates, Inc................................
---------------------
Total:...............................................
=====================
36
SCHEDULE III
JOINT VENTURES
St. Xxx/Arvida Company, L.P.
St. Xxx/CNL Development, Ltd.
[Codina Group, Inc.]
37
SCHEDULE IV
PROPERTY SCHEDULE
Properties listed below are identified using the defined terms used in
the Prospectus.
Property Title Holder
-------- ------------
duPont Center GCC
Gran Park at Deerwood GCC
Gran Park at Interstate South GCC
Gran Park at Jacksonville GCC
Gran Park at the Avenues GCC
Gran Park at XxXxxxxx GCC
Gran Park at Miami GCC
Gran Park at Deerwood North GCC
Gran Park at Southwood [ ]
Seagrove Tract [ ]
Camp Creek Tract [ ]
Tallahassee Tract [ ]
Riverton property [ ]
2,150 acres St. John's County property (identified on page GCC
40 of the Prospectus)
[Those lots in Summerwood that the Company still owns]
[Those lots in the Retreat that the Company still owns]
38
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
Xxxxxxx Xxxxx & Associates, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx International
Xxxxxxxxx, Lufkin & Xxxxxxxx International
Xxxxxxx Xxxxx & Associates, Inc.
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with St. Xxx Corporation, a Florida corporation (the "COMPANY") and the Xxxxxx
X. xxXxxx Testamentary Trust, providing for the public offering (the "PUBLIC
OFFERING") by the several Underwriters, including Xxxxxx Xxxxxxx and MSIL (the
"UNDERWRITERS"), of shares (the "SHARES") of the Common Stock, no par value, of
the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf
39
of the Underwriters, it will not, during the period commencing on the date
hereof and ending 180 days after the date of the final prospectus relating to
the Public Offering (the "PROSPECTUS"), (1) 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, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock,
or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise, other than (w) the Shares to the Underwriters pursuant to the
Underwriting Agreement, (x) the issuance by the Company of shares of Common
Stock upon the exercise of an option or a warrant or the conversion of a
security outstanding on the date of the Prospectus of which the Underwriters
have been advised in writing, (y) the issuance of shares of Common Stock as
consideration for future acquisitions by the Company or (z) the grant of options
under the Company's stock option plans, provided such options do not vest prior
to the termination of the 180-day period referenced herein, and provided further
that, in the case of subclauses (x) and (y), the recipient of any such issued
shares agrees in writing to be bound by the transfer restrictions set forth
herein. In addition, the undersigned agrees that, without the prior written
consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
----------------------------------------
(Name)
----------------------------------------
(Address)
2
