EXHIBIT 1.1
Sun Communities, Inc.
DOCS(R) Financing Program
1,600,000 Shares of Common Stock, $.01 par value
SALES AGREEMENT
October 3, 2001
THIS SALES AGREEMENT (the "Agreement") dated as of October 3, 2001
between RCG Xxxxxxx Xxxxxxx, a division of Ramius Securities, LLC, having its
principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Sales
Manager") and Sun Communities, Inc., a corporation organized and existing under
the laws of the State of Maryland (the "Company").
WHEREAS, the Company desires to issue and sell through the Sales
Manager up to 1,600,000 shares (the "Maximum Share Amount") of its common stock,
par value $.01 (the "Common Stock"), on the terms set forth in Article II
hereof. The Maximum Share Amount shall be appropriately adjusted for stock
splits and reverse splits.
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Sales Manager agree as follows:
ARTICLE I.
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
1.1 For purposes of this Agreement, unless the context requires to the
contrary, the term "Company" shall also include all significant subsidiaries (as
defined by Section 1-02 of Regulation S-X) of the Company. The Company
represents and warrants to, and agrees with, the Sales Manager that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
thereunder ("Rules and Regulations"). The Company has a currently effective
registration statement on Form S-3 (No. 333-14595) (the "Registration
Statement") with respect to $250 million of shares of Common Stock. The
Registration Statement, including a form of prospectus, has been prepared by the
Company in conformity with the requirements of the Act and the Rules and
Regulations. The Registration Statement and prospectus may have been amended or
supplemented prior to the date hereof. Any such amendment or supplement was so
prepared and filed, and any such amendment or supplement filed after the
effective date of such registration statement has become effective. No stop
order suspending the effectiveness of the Registration Statement has been
issued, and, to the knowledge of the Company, no proceeding for that purpose has
been instituted or threatened by the Securities and Exchange Commission (the
"Commission"). Copies of the Registration Statement and prospectus, any such
amendment or supplement, and all documents incorporated by reference in each of
the foregoing that were filed with the Commission have been delivered to the
Sales Manager. The Registration Statement, as amended from time to time, is
referred to herein as the "Registration Statement," and the final form of
prospectus included in the Registration Statement, as amended or supplemented
from time to time, is referred to herein as the "Prospectus." Any reference
herein to the Registration Statement, the Prospectus, or any amendment or
supplement thereto shall be deemed to refer to and include the documents
incorporated (or deemed to be incorporated) by reference therein, and any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement or Prospectus shall be deemed to refer to and
include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus and any amendment or supplement thereto,
on the date of filing thereof with the Commission and at each Settlement Date
(as hereinafter defined), conformed or will conform in all material respects
with the requirements of the Act and the Rules and Regulations; each part of the
Registration Statement, when such part became or becomes effective, did not or
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; and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each
Settlement Date, did not or will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
not misleading; except that the foregoing shall not apply to statements in or
omissions from any such document in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of the Sales
Manager, specifically for use in the Registration Statement, the Prospectus or
any amendment or supplement thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, when they
became or become effective under the Act or were or are filed with the
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, conformed or will conform in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder.
(d) The financial statements of the Company, together with the related
schedules and notes thereto, set forth or included or incorporated by reference
in the Registration Statement and Prospectus, fairly present the financial
condition of the Company as of the dates indicated and the results of
operations, changes in financial position, stockholders' equity, and cash flows
for the periods therein specified, in conformity with generally accepted
accounting principles consistently applied throughout the periods involved
(except as otherwise stated therein). The summary and selected financial and
statistical data included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown therein and,
to the extent based upon or derived from the financial statements, have been
compiled on a basis consistent with the financial statements presented therein.
In addition, any pro forma financial statements of the Company, and the related
notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus, present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
basis described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. Furthermore, all
financial statements required by Rule 3-14 of Regulation S-X ("Rule 3-14"), if
any, have been included or incorporated by reference in the Registration
Statement and the Prospectus and any such financial statements are in conformity
with the requirements of Rule 3-14. No other financial statements are required
to be set forth or incorporated by reference in the Registration Statement or
the Prospectus under the Rules and the Regulations.
(e) The accountants who certified the financial statements and the
supporting schedules included in the Registration Statement are and, during the
periods covered by their
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reports, were independent public accountants as required by the Act and the
Rules and Regulations.
(f) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland. Other than
as disclosed in the Registration Statement, the Company has no subsidiaries and
does not control, directly or indirectly, any corporation, partnership, limited
liability company, joint venture, association or other business organization.
The Company is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its assets or properties
(owned, leased or licensed) or the nature of its business makes such
qualification necessary (including every jurisdiction in which it owns or leases
property), except for such jurisdictions where the failure to so qualify would
not have a Material Adverse Effect on the Company. For purposes of this
Agreement, "Material Adverse Effect" means any adverse effect on the business,
operations, prospects, properties or financial condition of the Company which is
(either alone or together with all other adverse effects) material to the
Company, and any material adverse effect on the transactions contemplated under
this Agreement or any other agreement or document contemplated hereby or
thereby. Each of the Company's subsidiaries is validly existing as a
corporation, limited liability company or partnership, as applicable, in its
respective jurisdiction of formation. Schedule 1.1(f) hereto identifies each of
the Company's subsidiaries that is a significant subsidiary (as defined in
Section 1-02 of Regulation S-X) of the Company (each, a "Significant
Subsidiary"). All of the issued and outstanding capital stock, limited liability
company interests or partnership interests, as applicable, of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and (except as otherwise disclosed or incorporated by reference in
the Registration Statement and the Prospectus) is owned by the Company,
directly, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Except as disclosed or incorporated by reference
in the Registration Statement and the Prospectus, the Company does not own,
lease or license any material asset or property or conduct any business outside
the United States of America. The Company and each of its Significant
Subsidiaries has all requisite corporate, partnership or limited liability
company power and authority, as applicable, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and from all
governmental orders or regulatory bodies or any other person or entity, to own,
lease, license and operate its assets and properties and conduct its business as
now being conducted and as described or incorporated by reference in the
Registration Statement and the Prospectus; except for such authorizations,
approvals, consents, orders, licenses, certificates and permits the absence of
which would not have a Material Adverse Effect; and no such authorization,
approval, consent, order, license, certificate or permit contains a materially
burdensome restriction other than as disclosed or incorporated by reference in
the Registration Statement and the Prospectus.
(g) The Company is the sole general partner of Sun Communities
Operating Limited Partnership (the "Operating Partnership") and such general
partner interest is duly authorized by the Agreement of Limited Partnership of
the Operating Partnership dated April 30, 1996 (the "Partnership Agreement") and
was validly issued to the Company; and the Company owns such general partner
interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as are not, individually or in the
aggregate, material to such ownership or as described in the Registration
Statement or the Prospectus).
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(h) The Operating Partnership owns 100% of the non-voting preferred
stock of Sun Home Services, Inc. ("Home Services"), which entitles the Operating
Partnership to 95% of the cash flow from the operating activities of Home
Services.
(i) Home Services is a corporation duly organized, validly existing and
in good standing under the laws of the State of Michigan. Home Services is duly
licensed or qualified to do business and is in good standing as a foreign
corporation in all jurisdictions in which the nature of the activities conducted
by it or the character of the assets owned or leased by it makes such licensing
or qualification necessary (except where the failure to be so licensed or
qualified would not have a Material Adverse Effect on the Company or Home
Services, or subject the Company or the shareholders of the Company to any
material liability or disability).
(j) The Operating Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Michigan.
The Operating Partnership is duly licensed or qualified to do business and is in
good standing as a foreign limited partnership in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned or
leased by it makes such licensing or qualification necessary (except where the
failure to be so licensed or qualified would not have a Material Adverse Effect
on the Company or the Operating Partnership, or subject the Company or the
shareholders of the Company to any material liability or disability).
(k) The Company has good title to each of the items of personal
property which are reflected in the financial statements referred to in Section
1.1(d) or are referred to in the Registration Statement and the Prospectus or
any document incorporated by reference therein as being owned by the Company and
valid and enforceable leasehold interests in each of the items of real and
personal property which are referred to in the Registration Statement and the
Prospectus or any document incorporated by reference therein as being leased by
the Company, in each case free and clear of all liens, encumbrances, claims,
security interests and defects, other than those described in the Registration
Statement and the Prospectus and those which do not and will not have a Material
Adverse Effect.
(l) The Company has good and marketable title to, or leasehold
interests in, all properties and assets (including, without limitation,
mortgaged assets) as described in the Registration Statement and the Prospectus
or any document incorporated by reference therein, owned by the Company, free
and clear of all liens, charges, encumbrances or restrictions, except such as
are described in the Registration Statement and the Prospectus or any document
incorporated by reference therein. The Company has such consents, easements,
rights-of-way or licenses (collectively, "rights-of-way") from any person as are
necessary to conduct its business in the manner described in the Registration
Statement, except for those which if not obtained would not, singly or in the
aggregate, have a Material Adverse Effect on the Company, and none of such
rights-of-way contains any restriction that is materially burdensome to the
Company.
(m) There is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or board pending
or, to the knowledge of the Company, threatened (and the Company does not know
of any basis therefor) against, or involving the assets, properties or
businesses of the Company which would materially adversely
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affect the value or the operation of any such assets or otherwise have a
Material Adverse Effect on the Company except as described or incorporated by
reference in the Registration Statement.
(n) The Company maintains insurance (issued by insurers of recognized
financial responsibility) of the types and in the amounts generally deemed
adequate for its businesses and, to the knowledge of the Company, consistent
with insurance coverage maintained by similar companies in similar businesses,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(o) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as described therein,
(i) there has not been any material adverse change in the assets or properties,
business, results of operations, prospects or condition (financial or otherwise)
of the Company, whether or not arising from transactions in the ordinary course
of business; (ii) the Company has not sustained any material loss or
interference with its assets, businesses or properties (whether owned or leased)
from fire, explosion, earthquake, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree; (iii) since the date of the latest
balance sheet, included or incorporated by reference in the Registration
Statement and the Prospectus, except as reflected therein, the Company has not
undertaken any liability or obligation, direct or contingent, except such
liabilities or obligations undertaken in the ordinary course of business; and
(iv) there has not been any transaction that is material to the Company, except
transactions in the ordinary course of business or as otherwise disclosed in the
Registration Statement and the Prospectus.
(p) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. Each document, instrument, contract and agreement of the Company
described in the Registration Statement or the Prospectus or incorporated by
reference therein or listed as exhibits to the Registration Statement is in full
force and effect and is valid and enforceable by and against the Company in
accordance with their terms, assuming the due authorization, execution and
delivery thereof by each of the other parties thereto except as otherwise
disclosed in the Registration Statement or Prospectus. The Company is not, nor
to the knowledge of the Company is any other party, in default in the observance
or performance of any term or obligation to be performed by it under any such
agreement, and no event has occurred which with notice or lapse of time or both
would constitute such a default, which default or event would have a Material
Adverse Effect. No default exists, and no event has occurred which with notice
or lapse of time or both would constitute a default, in the due performance and
observance of any term, covenant or condition, by the Company of any other
agreement or instrument to which the Company is a party or by which it or its
properties or business may be bound or affected, which default or event would
have a Material Adverse Effect.
(q) Neither the Company nor any of its Significant Subsidiaries is in
violation of any term or provision of its charter, by-laws, partnership
agreement or operating agreement, as applicable. The Company is not in violation
of any franchise, license, permit, judgment, decree,
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order, statute, rule or regulation, where the consequences of such violation
would have a Material Adverse Effect.
(r) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the Company of
the Common Stock) will give rise to a right to terminate or accelerate the due
date of any payment due under, or conflict with or result in the breach of any
term or provision of, or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or require any consent
or waiver under, or result in the execution or imposition of any lien, charge,
encumbrance, claim, security interest, restriction or defect upon any properties
or assets of the Company pursuant to the terms of, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is a party or by
which either is bound, or any of its properties or businesses are bound, or any
franchise, license, permit, judgment, decree, order, statute, rule or regulation
applicable to the Company or violate any provision of the Company's charter or
by-laws, except for such consents or waivers which have already been obtained
and are in full force and effect.
(s) All of the outstanding shares of common stock and preferred stock
of the Company have been duly authorized and validly issued and are fully paid
and nonassessable and none of them were issued in violation of any preemptive or
other similar right. The Common Stock, when issued and sold pursuant to this
Agreement, will be duly authorized and validly issued, fully paid and
nonassessable and will not be issued in violation of any preemptive or other
similar right. Except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right calling for
the issuance of, and there is no commitment, plan or arrangement to issue, any
securities of the Company or any security convertible into or exercisable or
exchangeable for securities of the Company. The Common Stock conforms in all
material respects to all statements relating thereto contained in the
Registration Statement and the Prospectus.
(t) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as (x) described or
referred to therein, or (y) are not material and are consistent with past
practice, the Company has not (i) issued any securities or incurred any
liability or obligation, direct or contingent, except such liabilities or
obligations incurred in the ordinary course of business and except for
securities issued in connection with the Company's employee benefit and/or
dividend reinvestment plans, (ii) entered into any transaction not in the
ordinary course of business or (iii) declared or paid any dividend or made any
distribution on any of its securities or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any of its
securities.
(u) Except as disclosed in the Registration Statement and Prospectus,
no holder of any security of the Company has the right, which has not been
waived, to have any security owned by such holder included in the Registration
Statement.
(v) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Common Stock by the Company. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes and will constitute the legal, valid and
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binding obligation of the Company, enforceable against the Company in accordance
with its terms. Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions contemplated
hereby and the issuance and sale of the Common Stock by the Company has been
obtained or made and is in full force and effect. The Common Stock is listed for
trading on the Trading Market. For purposes of this Agreement, the "Trading
Market" is (i) the New York Stock Exchange, Inc., and (ii) each other securities
exchange on which Common Stock is admitted for trading.
(w) The Company has not incurred any liability for a fee, commission or
other compensation on account of the employment of a broker or finder in
connection with the transactions contemplated by this Agreement other than as
contemplated hereby or as described in the Registration Statement.
(x) The Company is conducting its business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which it is
conducting business, including, without limitation, the Americans with
Disabilities Act of 1990 and all applicable local, state and federal employment,
truth-in-advertising, franchising and immigration laws and regulations, except
where the failure to be so in compliance would not have a Material Adverse
Effect.
(y) No transaction has occurred between or among the Company and any of
its officers or directors or any affiliate or affiliates of any such officer or
director that is required to be described in and is not adequately described in
the Registration Statement and the Prospectus.
(z) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
securities of the Company to facilitate the sale or resale of any shares of the
Common Stock.
(aa) The Company has filed all federal, state, local and foreign tax
returns which are required to be filed through the date hereof (and will file
all such tax returns when and as required to be filed after the date hereof), or
has received extensions thereof, and has paid all taxes shown on such returns to
be due on or prior to the date hereof (and will pay all taxes shown on such
returns to be due after the date hereof) and all assessments received by it to
the extent that the same are material and have become due.
(bb) The Company is, and after giving effect to the offering and sale
of the Common Stock, will be, exempt from regulation as an "investment company,"
a person "controlled by" an "investment company" or an "affiliated person" of or
"promoter" or "principal underwriter" for an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(cc) The Company is not involved in any labor dispute and, to the
knowledge of the Company, no such dispute has been threatened, except for such
disputes as would not have a
Material Adverse Effect or subject the Company or its shareholders to any
material liability or disability.
(dd) The Company's systems of internal accounting controls taken as a
whole are sufficient to meet the broad objectives of internal accounting control
insofar as those objectives pertain to the prevention or detection of errors or
irregularities in amounts that would be material in relation to the Company's
financial statements; and, to the best of the Company's knowledge, neither the
Company nor any employee or agent thereof has made any payment of funds of the
Company or received or retained any funds, and no funds of the Company have been
set aside to be used for any payment, in each case in violation of any law, rule
or regulation.
(ee) Except as disclosed in the Registration Statement or the
Prospectus, or in any document incorporated therein (i) there has been no
storage, disposal, generation, manufacture, refinement, transportation, handling
or treatment of toxic wastes, hazardous wastes or hazardous substances by the
Company or any of its subsidiaries (or to the knowledge of the Company, any of
their predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in violation of
any applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have a Material Adverse Effect;
(ii) there has been no spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of its subsidiaries,
except for any such spill, discharge, leak emission, injection, escape, dumping
or release which would not have a Material Adverse Effect; and (iii) the terms
"hazardous wastes," "toxic wastes" and "hazardous substances" shall have the
meanings specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(ff) The Company has met the qualification requirements for a "real
estate investment trust" during its taxable years ending on December 31, 1999
and December 31, 2000 and its proposed method of operations will enable it to
continue to meet the requirements for qualification and taxation as a "real
estate investment trust" under the Internal Revenue Code of 1986, as amended,
assuming no change in the applicable underlying laws. The Company does not know
of any event which would cause or is likely to cause it to fail to qualify as a
"real estate investment trust" at any time.
ARTICLE II.
SALE AND DELIVERY OF SECURITIES
2.1 (a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell through the Sales Manager, as agent, and the
Sales Manager agrees to sell, as agent for the Company, on a best efforts basis,
up to the Maximum Share Amount of Common Stock during the term of this Agreement
on the terms set forth herein. The Common Stock will be sold from time to time
in amounts and at prices as directed by the Company and as agreed to by the
Sales Manager.
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(b) The Company or the Sales Manager may, upon notice to the other
party hereto by telephone (confirmed promptly by telecopy), at any time and from
time to time suspend the offering of Common Stock; provided, however, that such
suspension or termination shall not affect or impair the parties' respective
obligations with respect to the Common Stock sold hereunder prior to the giving
of such notice.
(c) The compensation to the Sales Manager for sales of Common Stock
shall be at a fixed commission rate of 3% of the gross sales price per share of
Common Stock sold under this Agreement. The remaining proceeds, after further
deduction for any transaction fees imposed by any governmental or
self-regulatory organization in respect to such sale shall constitute the net
proceeds to the Company for such Common Stock (the "Net Proceeds").
(d) The Company shall open and maintain a trading account (the "Trading
Account") at a clearing agent designated by the Sales Manager to facilitate the
transactions contemplated by this Agreement. The Net Proceeds from the sale of
the Common Stock shall be available in the Trading Account on the third business
day (or such other day as is industry practice for regular-way trading)
following each sale of Common Stock (each, a "Settlement Date"). The Company
shall effect the delivery of the applicable number of shares of Common Stock to
an account designated by the Sales Manager at The Depository Trust Company on or
before the Settlement Date of each sale hereunder. The Sales Manager's
compensation shall be withheld from the sales proceeds on each Settlement Date
and shall be paid to the Sales Manager.
(e) At each Settlement Date, the Company shall be deemed to have
affirmed each representation, warranty, covenant and other agreement contained
in this Agreement. Any obligation of the Sales Manager under this Agreement
shall be subject to the continuing accuracy of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Article IV of this Agreement.
(f) If the Company shall default on its obligation to deliver shares of
Common Stock on any Settlement Date, the Company shall (i) hold the Sales
Manager harmless against any loss, claim or damage arising from or as a result
of such default by the Company and (ii) pay the Sales Manager any commission to
which it would otherwise be entitled absent such default.
ARTICLE III.
COVENANTS OF THE COMPANY
3.1 The Company covenants and agrees with the Sales Manager that:
(a) As promptly as practicable after the date of this Agreement, the
Company will file a post-effective amendment to the Registration Statement to
permit sales of the Common Stock under the Act. The Company will use its best
efforts to cause such post-effective amendment to the Registration Statement to
become effective as promptly as possible thereafter.
(b) During the period in which a prospectus relating to the Common
Stock is required to be delivered under the Act, the Company will notify the
Sales Manager promptly of the time
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when any subsequent amendment to the Registration Statement has become effective
or any subsequent supplement to the Prospectus has been filed and of any request
by the Commission for any amendment or supplement to the Registration Statement
or the Prospectus or for additional information; the Company will prepare and
file with the Commission, promptly upon the Sales Manager's reasonable request,
any amendments or supplements to the Registration Statement or Prospectus that,
in the Sales Manager's reasonable opinion, may be necessary or advisable in
connection with the sale of the Common Stock pursuant to this Agreement; the
Company will not file any amendment or supplement to the Registration Statement
or Prospectus unless a copy thereof has been submitted to the Sales Manager a
reasonable period of time before the filing and the Sales Manager has not
reasonably objected thereto; and it will notify the Sales Manager at the time of
filing thereof a copy of any document that upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus, which
will then be available on the Company's website at xxx.xxxxxxxxxxxxxx.xxx (and
will furnish to the Sales Manager any such document that is not available on the
Company's website). The Company will cause each amendment or supplement to the
Prospectus to be filed with the Commission as required pursuant to the Rules and
Regulations or, in the case of any document to be incorporated therein by
reference, to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed.
(c) The Company will advise the Sales Manager, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Common Stock for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceeding for any
such purpose; and it will promptly use its best efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be
issued.
(d) Within the time during which a prospectus relating to the Common
Stock is required to be delivered under the Act, the Company will comply with
all requirements imposed upon it by the Act and by the Rules and Regulations, as
from time to time in force, so far as necessary to permit the continuance of
sales of or dealings in the Common Stock as contemplated by the provisions
hereof and the Prospectus. If during such period any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Act, the Company will
promptly notify the Sales Manager to suspend the offering of Common Stock during
such period and the Company will amend or supplement the Registration Statement
or Prospectus (at the expense of the Company) so as to correct such statement or
omission or effect such compliance and will use its best efforts to have any
amendment or supplement to the Registration Statement or Prospectus declared
effective as soon as possible, unless the Company has reasonable business
reasons to defer public disclosure of the relevant information.
(e) The Company will use its best efforts to qualify the Common Stock
for sale under the securities laws of such jurisdictions as the Sales Manager
designates and to continue such qualifications in effect so long as required for
the sale of the Common Stock, except that the
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Company shall not be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction.
(f) The Company will furnish to the Sales Manager and its counsel (at
the expense of the Company) copies of the Registration Statement, the Prospectus
(including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with
the Commission during the period in which a prospectus relating to the Common
Stock is required to be delivered under the Act (including all documents filed
with the Commission during such period that are deemed to be incorporated by
reference therein), in each case as soon as available and in such quantities as
the Sales Manager may from time to time reasonably request and, in the case when
the Trading Market is a national securities exchange, the Company will also
furnish copies of the Prospectus to such exchange in accordance with Rule 153 of
the Rules and Regulations.
(g) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the end
of the Company's current fiscal quarter, an earnings statement (which need not
be audited) covering a 12-month period that satisfies the provisions of Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all of its expenses
incident to the performance of its obligations hereunder (including, but not
limited to, any transaction fees imposed by any governmental or self-regulatory
organization with respect to transactions contemplated by this Agreement and any
blue sky fees) and will pay the expenses of printing all documents relating to
the offering. The Company will reimburse the Sales Manager for its reasonable
out-of-pocket costs and expenses incurred in connection with entering into this
Agreement, including, without limitation, reasonable travel, reproduction,
printing and similar expenses, as well as the reasonable fees and disbursements
of its legal counsel (provided that such legal fees shall not exceed $50,000),
upon presentation of appropriate invoices therefor.
(i) The Company shall use its best efforts to list, subject to notice
of issuance, the Common Stock on the applicable Trading Market.
(j) The Company will apply the Net Proceeds from the sale of the Common
Stock as set forth in the Prospectus.
(k) The Company will not, directly or indirectly, offer or sell any of
its securities (other than the shares of Common Stock sold pursuant to this
Agreement) or securities convertible into or exchangeable for, or any rights to
purchase or acquire, Common Stock, during the period from the date of this
Agreement through the final Settlement Date for the sale of Common Stock
hereunder without (i) giving the Sales Manager at least one business day prior
written notice specifying the nature of the proposed sale and the date of such
proposed sale and (ii) suspending activity under this program for such period of
time as may reasonably be determined by agreement of the Company and the Sales
Manager; provided, however, that no such notice and suspension shall be required
in connection with the Company's issuance or sale of (i) securities pursuant to
any employee or director stock option or benefits plan, stock ownership plan,
dividend reinvestment plan, as such plans may be amended from time to time,
11
(ii) securities issuable upon conversion or exchange of securities or the
exercise of warrants, options or other rights in effect or outstanding on the
date hereof, and (iii) securities issued in connection with the acquisition of
real estate in the ordinary course of the Company's business. Notwithstanding
the foregoing, this paragraph (k) shall not apply during periods that the
Company is neither selling Common Stock through the Sales Manager nor has
requested the Sales Manager to sell Common Stock.
(l) The Company will, at any time during the term of this Agreement, as
supplemented from time to time, advise the Sales Manager immediately after it
shall have received notice or obtain knowledge thereof, of any information or
fact that would alter or affect any opinion, certificate, letter and other
document provided to the Sales Manager pursuant to Article IV herein.
(m) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented or (ii) there is filed with the Commission any
document incorporated by reference into the Prospectus (other than a Current
Report on Form 8-K, unless the Sales Manager shall otherwise request), the
Company shall (unless the Company is not then selling Common Stock through the
Sales Manager and has not requested the Sales Manager to sell Common Stock)
furnish or cause to be furnished to the Sales Manager forthwith a certificate
dated the date of filing with the Commission of such amendment, supplement or
other document, the date of effectiveness of amendment, as the case may be, in
form satisfactory to the Sales Manager to the effect that the statements
contained in the certificates referred to in Section 4.1(f) hereof that were
last furnished to the Sales Manager are true and correct at the time of such
amendment, supplement, filing, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificates, certificates of the same tenor as the
certificates referred to in said Section 4.1(f), modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(n) Each time that (i) the Registration Statement or the Prospectus is
amended or supplemented or (ii) there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K or any Quarterly Report on Form 10-Q, unless the Sales Manager shall
otherwise reasonably request), the Company shall (unless the Company is not then
selling Common Stock through the Sales Manager and has not requested the Sales
Manager to sell Common Stock) furnish or cause to be furnished forthwith to the
Sales Manager and to counsel to the Sales Manager, a written opinion of Jaffe,
Raitt, Heuer & Xxxxx, P.C., counsel to the Company ("Company Counsel"), or other
counsel reasonably satisfactory to the Sales Manager, dated the date of filing
with the Commission of such amendment, supplement or other document and the date
of effectiveness of such amendment, as the case may be, substantially in the
form attached hereto as Exhibit 3.1(n), but modified as necessary to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion.
(o) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented to include additional financial information or there
is filed with the Commission any document incorporated by reference into the
Prospectus which contains additional financial
12
information, the Company shall (unless the Company is not then selling Common
Stock through the Sales Manager and has not requested the Sales Manager to sell
Common Stock) cause PricewaterhouseCoopers LLP, or other independent accountants
satisfactory to the Sales Manager, forthwith to furnish to the Sales Manager a
letter, dated the date of effectiveness of such amendment, or the date of filing
of such supplement or other document with the Commission, as the case may be, in
form satisfactory to the Sales Manager, of the same tenor as the letter referred
to in Section 4.1(e) hereof but modified to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letter.
ARTICLE IV.
CONDITIONS OF THE SALES MANAGER'S OBLIGATIONS
4.1 The obligations of the Sales Manager to sell the Common Stock as
provided herein shall be subject to the accuracy, as of the date hereof, and as
of each Settlement Date contemplated under this Agreement, of the
representations and warranties of the Company herein, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been declared effective. No
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Company or the Sales Manager, threatened by the Commission,
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
complied with to the Sales Manager's reasonable satisfaction.
(b) The Sales Manager shall not have advised the Company that the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the Sales Manager's
reasonable opinion is material, or omits to state a fact that in the Sales
Manager's reasonable opinion is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there shall not have been any material change in the capital
stock of the Company, or any material adverse change, or any development that
may reasonably be expected to cause a material adverse change, in the condition
(financial or other), business, prospects, net worth or results of operations of
the Company, or any adverse change in the rating assigned to any securities of
the Company.
(d) The Sales Manager shall have received on or prior to the date of
the first sale of Common Stock hereunder (the "Commencement Date") and at every
other date specified in Section 3.1(n) hereof, opinions of Company Counsel,
dated as of the Commencement Date or a date prior to the Commencement Date but
not earlier than the end of the Company's last completed fiscal quarter and
dated as of such other date, in the form of Exhibit A hereto.
(e) At the Commencement Date and at such other dates specified in
Section 3.1(o) hereof, the Sales Manager shall have received a "comfort letter"
from PricewaterhouseCoopers
13
LLP, independent public accountants for the Company, or other independent
accountants reasonably satisfactory to the Sales Manager, dated the date of
delivery thereof, in form and substance reasonably satisfactory to the Sales
Manager. With respect to the Commencement Date, the comfort letter may be dated
prior to the Commencement Date but not earlier than the end of the Company's
last completed fiscal quarter.
(f) The Sales Manager shall have received from the Company a
certificate, or certificates, signed by (I) the Chief Financial Officer and (II)
either the Chief Executive Officer or the Chief Operating Officer, dated as of
the Commencement Date and (unless the Company is not then selling Common Stock
through the Sales Manager and has not requested the Sales Manager to sell Common
Stock) dated as of the first business day of each calendar month thereafter
(each, a "Certificate Date"), to the effect that, to the best of their knowledge
based upon reasonable investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the
Commencement Date or the Certificate Date (as the case may be), and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Commencement Date and each such Certificate Date (as the case may be);
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or, to the knowledge of such officer after
due inquiry, is threatened, by the Commission;
(iii) Since the date of this Agreement, there has occurred no
event required to be set forth in an amendment or supplement to the
Registration Statement or Prospectus that has not been so set forth and
there has been no document required to be filed under the Exchange Act
and the rules and regulations of the Commission thereunder that upon
such filing would be deemed to be incorporated by reference in the
Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, there has not been any
material adverse change in the assets or properties, business, results
of operations, prospects or condition (financial or otherwise) of the
Company, which has not been described in an amendment or supplement to
the Registration Statement or Prospectus (directly or by
incorporation).
In addition, on each Certificate Date the certificate shall
also reconfirm that the shares of Common Stock sold during the immediately
preceding month were duly and validly authorized by the Company and that all
corporate action required to be taken for the authorization issuance and sale of
such shares of Common Stock had been validly and sufficiently taken.
(g) At the Commencement Date and on each Settlement Date, the Company
shall have furnished to the Sales Manager such appropriate further information,
certificates and documents as the Sales Manager may reasonably request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Sales
14
Manager. The Company will furnish the Sales Manager with such conformed copies
of such opinions, certificates, letters and other documents as the Sales Manager
shall reasonably request.
ARTICLE V.
INDEMNIFICATION AND CONTRIBUTION
5.1 (a) The Company agrees to indemnify and hold harmless the Sales
Manager and each person, if any, who controls the Sales Manager within the
meaning of Section 15 of the Act or Section 20 of the Exchange 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
representations in this Agreement or contained in the Registration
Statement (or any amendment thereto), 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 or the Prospectus (or any
amendment or supplement thereto) 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 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, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 5.1(c) hereof, the reasonable fees and
disbursements of counsel chosen by the Sales Manager), 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 the
Sales Manager expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) The Sales Manager agrees to indemnify and hold harmless the Company
and its directors and 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 Act or Section
15
20 of the Exchange Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 5.1(a), as incurred, but
only with respect to untrue statements or alleged untrue statements or omissions
or alleged omissions made in the Registration Statement (or any amendments
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by the Sales Manager expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto). The total liability
of the Sales Manager under this Section 5.1(b) shall not exceed the total actual
sales price of Common Stock sold by the Sales Manager that is the subject of the
dispute.
(c) Any indemnified party that proposes to assert the right to be
indemnified under this Article V will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Article V, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve the indemnifying party from any liability that it might have to
any indemnified party except to the extent that the indemnifying party
demonstrates that the defense of such claim is materially prejudiced by the
indemnified party's failure to give such notice. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be
16
liable for any settlement of any action or claim effected without its written
consent (which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Article V is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Sales Manager, the
Company and the Sales Manager will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Sales Manager, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company
and the Sales Manager may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the
Sales Manager on the other. The relative benefits received by the Company on the
one hand and the Sales Manager on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total compensation (before
deducting expenses) received by the Sales Manager from the sale of Common Stock
on behalf of the Company. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Sales Manager, on the
other, with respect to the statements or omission which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the 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 the Sales
Manager, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Sales Manager agree that it would not be just and equitable
if contributions pursuant to this Section 5.1(d) were to be determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above in this
Section 5.1(d) shall be deemed to include, for the purpose of this Section
5.1(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the foregoing provisions of this Section 5.1(d), the Sales
Manager shall not be required to contribute any amount in excess of the amount
by which the total actual sales price at which Common Stock sold by the Sales
Manager exceeds the amount of any damages that the Sales Manager has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5.1(d), any person who controls
a party to this Agreement within the meaning of the Act will have the same
rights to contribution as that party, and each officer and director of the
Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the
17
provisions hereof. Any party entitled to contribution, promptly after receipt of
notice of commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 5.1(d), will notify any
such party or parties from whom contribution may be sought, but the omission so
to notify will not relieve that party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section 5.1(d).
No party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be unreasonably
withheld).
(e) The indemnity and contribution provided by this Article V shall not
relieve the Company and the Sales Manager from any liability the Company and the
Sales Manager may otherwise have (including, without limitation, any liability
the Sales Manager may have for a breach of its obligations under Article II
hereof).
ARTICLE VI.
REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY
6.1 All representations, warranties and agreements of the Company
herein or in certificates delivered pursuant hereto, and the agreements of the
Sales Manager contained in Article V hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Sales Manager or any controlling persons, or the Company (or any of their
officers, directors or controlling persons), and shall survive delivery of and
payment for the Common Stock.
ARTICLE VII.
TERMINATION
7.1 The Sales Manager shall have the right by giving notice as
hereinafter specified at any time at or prior to any Settlement Date, to
terminate this Agreement if (i) any material adverse change, or any development
that has actually occurred and that is reasonably expected to cause material
adverse change, in the assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company has occurred
which, in the judgment of the Sales Manager, materially impairs the investment
quality of the Common Stock, (ii) the Company shall have failed, refused or been
unable, at or prior to any Settlement Date, to perform any agreement on its part
to be performed hereunder, (iii) any other condition of the Sales Manager's
obligations hereunder is not fulfilled, (iv) any suspension or limitation of
trading in the Common Stock on the Trading Market, or any setting of minimum
prices for trading of the Common Stock on such Trading Market, shall have
occurred, (v) any banking moratorium shall have been declared by Federal or New
York authorities or (vi) an outbreak or material escalation of major hostilities
in which the United States is involved, a declaration of war by Congress, any
other substantial national or international calamity or any other event or
occurrence of a similar character shall have occurred since the execution of
this Agreement that, in the judgment of the Sales Manager, makes it impractical
or inadvisable to proceed with the completion of the sale of and payment for the
Common Stock to be sold by the Sales Manager on behalf of the Company. Any such
termination shall be without liability of any party to any other
18
party except that the provisions of Sections 3.1(h), (p) and (q), Article V and
Article VI hereof shall remain in full force and effect notwithstanding such
termination. If the Sales Manager elects to terminate this Agreement as provided
in this Article, the Sales Manager shall provide the required notice as
specified herein.
7.2 The Company shall have the right, by giving notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time. Any
such termination shall be without liability of any party to any other party
except that the provisions of Section 3.1(h), Article V and Article VI hereof
shall remain in full force and effect notwithstanding such termination.
7.3 The Sales Manager shall have the right, by giving notice as
hereinafter specified, to terminate this Agreement in its sole discretion at any
time. Any such termination shall be without liability of any party to any other
party except that the provisions of Sections 3.1(h), Article V and Article VI
hereof shall remain in full force and effect notwithstanding such termination.
7.4 This Agreement shall remain in full force and effect unless
terminated pursuant to Section 7.1, 7.2 or 7.3 above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Sections 3.1(h), Article V and
Article VI shall remain in full force and effect.
7.5 Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by the Sales Manager or the Company, as the case may be. If such
termination shall occur during a period when sales of Common Stock are being
made pursuant to this Agreement, any sales of Common Stock made prior to the
termination of this Agreement shall settle in accordance with the provisions of
this Agreement.
ARTICLE VIII.
NOTICES
8.1 All notices or communications hereunder shall be in writing and if
sent to the Sales Manager shall be mailed, delivered or telecopied and confirmed
to the Sales Manager at RCG Xxxxxxx Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, facsimile number (000) 000-0000, Attention: Corporate Finance, or if
sent to the Company, shall be mailed, delivered or telecopied and confirmed to
the Company at Sun Communities, Inc., 00000 Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, facsimile number (000) 000-0000, Attention:
Xxxxxxx X. Xxxxxxxx. Each party to this Agreement may change such address for
notices by sending to the other party to this Agreement written notice of a new
address for such purpose.
19
ARTICLE IX.
MISCELLANEOUS
9.1 This Agreement shall inure to the benefit of and be binding upon
the Company and the Sales Manager and their respective successors and the
controlling persons, officers and directors referred to in Article V hereof, and
no other person will have any right or obligation hereunder.
9.2 This Agreement constitutes the entire agreement and supersedes all
other prior and contemporaneous agreements and undertakings, both written and
oral, among the parties hereto with regard to the subject matter hereof.
9.3 THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
9.4 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The parties agree that this Agreement will be
considered signed when the signature of a party is delivered by facsimile
transmission. Such facsimile transmission shall be treated in all respects as
having the same effect as an original signature.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
SUN COMMUNITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO
RCG Xxxxxxx Xxxxxxx, a division of
RAMIUS SECURITIES, LLC
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
21
SCHEDULE 1.1(f)
LIST OF SIGNIFICANT SUBSIDIARIES
Sun Communities Operating Limited Partnership
Sun Home Services, Inc.
Sun Communities Finance LLC
Sun Communities Texas Limited Partnership
Sun Communities Funding Limited Partnership
EXHIBIT A
FORM OF LEGAL OPINION
