EXHIBIT 1
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
December 18, 2001
X.X. XXXXXXX & SONS, INC.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
The undersigned, Healthcare Realty Trust Incorporated, a Maryland
corporation that has elected to be taxed as a real estate investment trust (the
"Company"), hereby confirms the Company's agreement with you as follows:
From time to time the Company proposes to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex A hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and sell
to you (the "Underwriter") certain shares of the Company's common stock, $0.01
par value (the "Common Stock"), specified in such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Shares").
The Pricing Agreement, including the provisions incorporated therein by
reference, is herein referred to as the "Underwriting Agreement." Unless
otherwise defined herein, terms defined in the Pricing Agreement are used herein
as therein defined.
This Underwriting Agreement Standard Provisions shall not be construed
as an obligation of the Company to sell any shares of Common Stock or as an
obligation of the Underwriter to purchase any shares of the Common Stock. The
obligation of the Company to issue and sell any shares of Common Stock and the
obligation of the Underwriter to purchase any shares of Common Stock shall be
evidenced by the Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall specify the aggregate number of
such Designated Shares, the initial public offering price of such Designated
Shares, the purchase price to the Underwriter of such Designated Shares, the
number of Option Shares (as defined herein), and shall set forth the date of
delivery of such Designated Shares. The Pricing Agreement shall also specify any
additional terms of that particular offering. A Pricing Agreement shall be in
the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of facsimile communications or other electronic
communications satisfactory to the parties which produce a record of
communications transmitted.
1. DESCRIPTION OF DESIGNATED SHARES. The Company proposes to
issue and sell to the Underwriter the number of Designated Shares designated as
"Firm Shares" in any applicable Pricing Agreement (the "Firm Shares"), as
provided in Section 2 of this Agreement. Solely for the purpose of covering
over-allotments in the sale of the Firm Shares, the Company further proposes to
grant to the Underwriter the right to purchase
up to the additional number of Designated Shares designated as "Option Shares"
in the Pricing Agreement (the "Option Shares"), as provided in Section 3 of this
Agreement.
2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, pursuant to each Pricing Agreement
the Company will agree to sell to the Underwriter, and the Underwriter will
agree (a) to purchase from the Company at the purchase price per share set forth
in the Pricing Agreement, the number of Firm Shares set forth in the applicable
Pricing Agreement and (b) to purchase from the Company any additional number of
Option Shares which the Underwriter may become obligated to purchase pursuant to
Section 3 hereof.
The Company will deliver definitive certificates for the Firm Shares at
the office of X.X. Xxxxxxx & Sons, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
("Xxxxxxx' Office"), or such other place as you and the Company may mutually
agree upon, for the account of the Underwriter against payment to the Company of
the purchase price for the Firm Shares by wire transfer of immediately available
funds payable to the order of the Company as specified in such Pricing
Agreement, at 9:00 a.m. St. Louis time on the date specified in such Pricing
Agreement or at such other place and time and date as the Underwriter and the
Company may agree upon in writing, such date being herein called the "Closing
Date."
The certificates for the Firm Shares so to be delivered will be made
available to you for inspection at Xxxxxxx' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least forty-eight hours prior to the Closing Date.
The Company shall deliver the items required to be delivered by it by
Section 6 of this Agreement at 9:00 a.m. St. Louis time on the Closing Date at
the offices of Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000 or at such other place, time and date as the Underwriter and the
Company may agree upon in writing.
Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Underwriter of the release of such
Designated Shares it is understood that the Underwriter proposes to offer the
Designated Shares to the public upon the terms and conditions set forth in the
Prospectus (hereinafter defined), as amended or supplemented.
3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES. If set forth
in the applicable Pricing Agreement, the Company will grant options to the
Underwriter to purchase from it the Option Shares, respectively, on the same
terms and conditions as the Firm Shares; provided, however, that such options
may be exercised only for the purpose of covering any over-allotments which may
be made by them in the sale of the Firm Shares. No Option Shares shall be sold
or delivered unless the Firm Shares previously have been, or simultaneously are,
sold and delivered.
The options will be exercisable by the Underwriter, at any time, and
from time to time, before the expiration of 30 days from the date of the
applicable Pricing Agreement
2
(or, if such day shall be a Saturday or Sunday or a holiday, on the next day
thereunder when the New York Stock Exchange is open for trading), for the
purchase of all or part of the Option Shares covered thereby, by notice given by
you to the Company in the manner provided in Section 11 hereof, setting forth
the number of Option Shares as to which you are exercising the options. The date
of delivery of said Option Shares shall be three business days after such notice
unless otherwise agreed to by the parties. You may terminate the options at any
time, as to any unexercised portion thereof, by giving written notice to the
Company to such effect.
Delivery of the Option Shares with respect to which the options shall
have been exercised shall be made to or upon your order at Xxxxxxx' Office (or
at such other place as you and the Company may mutually agree upon), against
payment by you of the per share purchase price to the Company by wire transfer
of immediately available funds payable to the order of the Company as specified
in such Pricing Agreement, at 9:00 a.m. St. Louis time on the date of delivery
of the Option Shares or at such other place and time and date as the Underwriter
and the Company may agree upon in writing, such date being herein called the
"Option Closing Date."
The certificates for the Option Shares so to be delivered will be made
available to you for inspection at Xxxxxxx' Office at least one full business
day prior to the Option Closing Date and will be in such names and denominations
as you may request at least forty-eight hours prior to the Option Closing Date.
At 9:00 a.m. on the Option Closing Date, the Company shall provide the
Underwriter such representations, warranties, agreements, opinions, letters,
certificates and covenants required to be delivered with respect to the Option
Shares as are required to be delivered on the Closing Date with respect to the
Firm Shares or as otherwise required to be delivered by Section 6 of this
Agreement at the offices of Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx.
Xxxxx, Xxxxxxxx 00000 or at such other place, time and date as the Underwriter
and the Company may agree upon in writing.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. (a)
The Company represents and warrants to and agrees with the Underwriter that (it
being understood that such representations, warranties and agreements shall be
deemed to relate to the Registration Statement and the Prospectus, each as
amended or supplemented to each such date) as of the date of this Agreement, as
of each date of any Pricing Agreement, as of each date the Company issues and
delivers Designated Shares (including Option Shares) and as of each date the
Registration Statement or the Prospectus is amended or supplemented, except with
respect to offerings of securities not pursuant to this Underwriting Agreement
Standard Provisions.
(i) The Company has carefully prepared, pursuant to and
in conformity with the requirements of the Securities Xxx 0000, as
amended (the "1933 Act"), and the rules and regulations thereunder (the
"1933 Act Rules and Regulations") of the Securities and Exchange
Commission (the "SEC"), and has filed with the SEC a registration
statement on Form S-3 (File No. 333-56608) which has been declared
effective, including a prospectus relating to common stock, common
stock warrants,
3
preferred stock and debt securities of the Company, for registration of
the Common Stock under the 1933 Act and the offering thereof from time
to time in accordance with Rule 415 of the 1933 Act Rules and
Regulations promulgated pursuant to the 1933 Act. The Company and the
offering of the Common Stock in the registration statement meet the
requirements for use of Form S-3 under the 1933 Act. Such registration
statement (and any further registration statements which may be filed
by the Company for the purpose of registering additional shares of
Common Stock and in connection with which this Agreement is included or
incorporated therein by reference as an exhibit) including all
documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended, the 1933 Act or otherwise,
are referred to herein as the "Registration Statement." The term
"Registration Statement" also means the registration statement as
amended by a post-effective amendment and includes any abbreviated
registration statement prepared and filed with the SEC in accordance
with Rule 462(b) under the 1933 Act (an "Abbreviated Registration
Statement"). The time at which the Registration Statement became
effective is referred to herein as the "Effective Date." The Company
proposes to prepare and file with the SEC from time to time, pursuant
to Rule 424 under the 1933 Act supplements to the prospectus (each a
"Prospectus Supplement") included in the Registration Statement that
will describe the issuances of Designated Shares pursuant to Pricing
Agreements, the sale and plan of distribution of the Designated Shares
and additional information concerning the Company and its business. The
Company may, from time to time, prepare and file with the SEC, pursuant
to Rule 430 or 430A under the 1933 Act Rules and Regulations a
preliminary Prospectus Supplement (each a "Preliminary Prospectus")
containing the prospectus included as part of the Registration
Statement, as supplemented by a preliminary Prospectus Supplement, and
including the documents incorporated in such prospectus by reference,
relating to the Common Stock. The prospectus, including all documents
incorporated therein by reference, included in the Registration
Statement, as supplemented by any Preliminary Prospectus or Prospectus
Supplement, in the form filed by the Company with the SEC is herein
called the "Prospectus." For purposes of this Agreement, the words
"amend," "amendment," "amended," "supplement" or "supplemented" with
respect to the Registration Statement or the Prospectus shall mean
amendments or supplements to the Registration Statement or the
Prospectus, as the case may be as well as documents filed after the
date of this Agreement and incorporated by reference therein as
described above.
(ii) Neither the SEC nor any state or other jurisdiction
or other regulatory body has issued, and neither is, to the knowledge
of the Company, threatening to issue, any stop order under the 1933 Act
or other order suspending the effectiveness of the Registration
Statement (as amended or supplemented) or preventing or suspending the
use of any Prospectus Supplement, Preliminary Prospectus or the
Prospectus or suspending the qualification or registration of the
Common Stock for offering or sale in any jurisdiction nor instituted
or, to the knowledge of the Company, threatened to institute
proceedings for any such purpose. The Prospectus and each Prospectus
Supplement or Preliminary Prospectus, as of the applicable date of
issue, and the Registration Statement and any amendments thereto as of
the applicable effective date, contain or will contain,
4
as the case may be, all statements which are required to be stated
therein by, and in all material respects conform or will conform, as
the case may be, to the requirements of, the 1933 Act and the 1933 Act
Rules and Regulations. Neither the Registration Statement nor any
amendment thereto, as of the applicable effective date, contains or
will contain, as the case may be, any untrue statement of a material
fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, not
misleading, and neither the Prospectus, any Prospectus Supplement, nor
Preliminary Prospectus, at the applicable date of issue, contains or
will contain, as the case may be, any untrue statement of a material
fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty
as to information contained in or omitted from the Registration
Statement, any Preliminary Prospectus or the Prospectus, or any such
amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company relating to the
Underwriter by or on behalf of the Underwriter expressly for use in the
preparation thereof (as provided in the Pricing Agreement). There is no
contract or document required to be described in the Registration
Statement or Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required. The
documents incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were filed with the
SEC, complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations adopted by the SEC thereunder (the "1934 Act
Rules and Regulations"). Any future documents incorporated by reference
so filed, when they are filed, will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Rules and
Regulations; no such incorporated document contained or will 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; and, when read together and with the other
information in the Prospectus, at the time the Registration Statement
became effective and at the Closing Date, each such incorporated
document did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(iii) This Agreement has been and any applicable Pricing
Agreement shall be duly authorized, executed and delivered by the
Company and this Agreement constitutes and any Pricing Agreement shall
constitute a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general principles
of equity (the "Exceptions").
(iv) The Company and its "subsidiaries" (as defined in
Section 4(a)(vii) hereof) have been duly incorporated or organized and
are validly existing as corporations or organizations in good standing
under the laws of the states or other
5
jurisdictions in which they are incorporated or organized, with full
power and authority (corporate and other) to own, lease and operate
their properties and conduct their businesses as described in the
Prospectus and, with respect to the Company, to execute and deliver,
and perform the Company's obligations under, this Agreement and under
any applicable Pricing Agreement; the Company and its subsidiaries are
duly qualified to do business as foreign corporations or organizations
in good standing in each state or other jurisdiction in which their
ownership or leasing of property or conduct of business legally
requires such qualification, except where the failure to be so
qualified, individually or in the aggregate, would not have a Material
Adverse Effect. The term "Material Adverse Effect" as used herein means
any material adverse effect on the condition (financial or other), net
worth, business, affairs, management, prospects, results of operations
or cash flow of the Company and its subsidiaries, taken as a whole.
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree otherwise than
as set forth in the Prospectus or as disclosed in writing to the
Underwriter prior to execution and delivery of a Pricing Agreement and,
since the respective dates as of which information is given in the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries which would
give rise to a Material Adverse Effect, or any development involving a
prospective Material Adverse Effect, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth in the Prospectus.
(vi) The issuance and sale of the Common Stock pursuant to
a Pricing Agreement and the execution, delivery and performance by the
Company of this Agreement and the applicable Pricing Agreement, and the
consummation of the transactions herein or therein contemplated, will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any of its subsidiaries under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the properties or assets of the Company or any of
its subsidiaries is subject or violate any statute, rule, regulation or
other law, or any order or judgment, of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except to such extent as,
individually or in the aggregate, does not have a Material Adverse
Effect, nor will such action result in any violation of the provisions
of the Company's articles of incorporation or bylaws; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement and the
applicable Pricing Agreement, the issuance
6
and sale of the Common Stock pursuant to a Pricing Agreement or the
consummation of the transactions contemplated hereby or thereby, except
such as have been, or will be prior to an applicable Closing Date,
obtained under the 1933 Act or as may be required by the New York Stock
Exchange ("NYSE") and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or blue sky laws in connection with the purchase and
distribution of the Designated Shares by the Underwriter.
(vii) The Company has duly and validly authorized capital
stock as set forth in the Prospectus; all outstanding shares of Common
Stock of the Company conform, or when issued the Designated Shares will
conform, to the description thereof in the Prospectus and have been,
or, when issued and paid for in the manner described herein and in the
applicable Pricing Agreement will be, duly authorized, validly issued,
fully paid and non-assessable; and the issuance of the Common Stock to
be purchased from the Company hereunder is not subject to preemptive or
other similar rights, or any restriction upon the voting or transfer
thereof (except for those rights and restrictions relating primarily to
the Company's status as a REIT as described in Section 4(a)(xxiii)
hereof) pursuant to applicable law or the Company's articles of
incorporation, by-laws or governing documents or any agreement to which
the Company or any of its subsidiaries is a party or by which any of
them may be bound. All corporate action required to be taken by the
Company for the authorization, issuance and sale of the Common Stock
pursuant to a Pricing Agreement will have been duly and validly taken
prior to the date of the applicable Pricing Agreement. Except as
disclosed in the Prospectus, there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities, commitments
of sale or rights related to or entitling any person to purchase or
otherwise to acquire any shares of, or any security convertible into or
exchangeable or exercisable for, the capital stock of, or other
ownership interest in, the Company. The Company has no subsidiaries or
affiliates (collectively, "subsidiaries") other than those identified
in Exhibit 21 to the Company's last filed Annual Report on Form 10-K or
as otherwise disclosed in writing to the Underwriter ("Exhibit 21").
The Company owns all of the outstanding capital stock of or other
equity interests in each such subsidiary except as set forth in Exhibit
21 or as otherwise disclosed in writing to the Underwriter. Other than
the subsidiaries referred to above, the Company does not own, directly
or indirectly, any shares of stock or any other equity or long-term
debt of any other corporation or have any direct or indirect equity
interest or ownership of long-term debt in any firm, partnership, joint
venture, limited liability company, association or other entity, except
as described in the Prospectus. The outstanding shares of capital stock
of or other equity interests in the Company's subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable
and are owned by the Company free and clear of any mortgage, pledge,
lien, encumbrance, charge or adverse claim and are not the subject of
any agreement or understanding with any person and were not issued in
violation of any preemptive or similar rights; and there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or instruments related to
or entitling any person to purchase or otherwise acquire any shares of,
or any security convertible into or exchangeable or
7
exercisable for, the capital stock of, or other ownership interest in
any of the subsidiaries.
(viii) The statements set forth in the Prospectus, as of its
date of issue, describing the Common Stock and the Designated Shares
and this Agreement and any Pricing Agreement, insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects.
(ix) Each of the Company and its subsidiaries is in
possession of and is operating in compliance with all franchises,
grants, authorizations, licenses, certificates, permits, easements,
consents, orders and approvals ("Permits") from all state, federal,
foreign and other regulatory authorities, and has satisfied the
requirements imposed by regulatory bodies, administrative agencies or
other governmental bodies, agencies or officials, that are required for
the Company and its subsidiaries lawfully to own, lease and operate
their properties and conduct their businesses as described in the
Prospectus, and, each of the Company and its subsidiaries is conducting
its business in compliance with all of the laws, rules and regulations
of each jurisdiction in which it conducts its business, in each case
with such exceptions, individually or in the aggregate, as would not
have a Material Adverse Effect; each of the Company and its
subsidiaries has filed all notices, reports, documents or other
information ("Notices") required to be filed under applicable laws,
rules and regulations, in each case, with such exceptions, individually
or in the aggregate, as would not have a Material Adverse Effect; and,
except as otherwise specifically described in the Prospectus, neither
the Company nor any of its subsidiaries has received any notification
from any court or governmental body, authority or agency, relating to
the revocation or modification of any such Permit or, to the effect
that any additional authorization, approval, order, consent, license,
certificate, permit, registration or qualification ("Approvals") from
such regulatory authority is needed to be obtained by any of them, in
any case where it could be reasonably expected that obtaining such
Approvals or the failure to obtain such Approvals, individually or in
the aggregate, would have a Material Adverse Effect.
(x) The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
and paid all taxes shown as due thereon; all such tax returns are
complete and correct in all material respects; all tax liabilities are
adequately provided for on the books of the Company and its
subsidiaries except to such extent as would not have a Material Adverse
Effect; the Company and its subsidiaries have made all necessary
payroll tax payments and are current and up-to-date; and the Company
and its subsidiaries have no knowledge of any tax proceeding or action
pending or threatened against the Company or its subsidiaries which,
individually or in the aggregate, might have a Material Adverse Effect.
(xi) Except as described in the Prospectus, the Company
and its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent licenses, trademarks, service marks and
trade names necessary to conduct
8
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 patents, patent
licenses, trademarks, service marks or trade names which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect.
(xii) Except in each case such as would not have a Material
Adverse Effect, the Company and its subsidiaries have good and
marketable title in fee simple to all items of real property and good
and marketable title to all personal property owned by them or
disclosed to be owned by them in the Prospectus, in each case free and
clear of all liens, encumbrances, restrictions and defects except such
as are described in the Prospectus or do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property; and any property held under lease
or sublease by the Company or any of its subsidiaries is held under
valid, duly authorized, subsisting and enforceable leases or subleases
with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property by the Company and
its subsidiaries; the Company and its subsidiaries have title insurance
on all real properties described in the Prospectus as having been
financed by them pursuant to a mortgage loan in an amount at least
equal to the aggregate principal amount of each such mortgage loan or
in an amount at least equal to the aggregate acquisition price paid by
the Company or its subsidiaries for such properties and the cost of
construction of the improvements located on such properties; and
neither the Company nor any of its subsidiaries has any notice or
knowledge of any material claim of any sort which has been, or may be,
asserted by anyone adverse to the Company's or any of its subsidiaries
rights as lessee or sublessee under any lease or sublease described
above, or affecting or questioning the Company's or any of its
subsidiaries' rights to the continued possession of the leased or
subleased premises under any such lease or sublease in conflict with
the terms thereof. To the knowledge of the Company, no lessee of any
portion of any of the properties described in the Prospectus is in
default under its respective lease and there is no event which, but for
the passage of time or the giving of notice or both, would constitute a
default under any such lease, except such defaults that would,
individually or in the aggregate, not have a Material Adverse Effect.
(xiii) No labor disturbance exists with the employees of the
Company or any of its subsidiaries or, to the Company's knowledge, is
imminent which, individually or in the aggregate, would have a Material
Adverse Effect. None of the employees of the Company or any of its
subsidiaries is represented by a union and, to the knowledge of the
Company and its subsidiaries, no union organizing activities are taking
place. Neither the Company nor any of its subsidiaries has violated any
federal, state or local law or foreign law relating to discrimination
in hiring, promotion or pay of employees, nor any applicable wage or
hour laws, or the rules and regulations thereunder, or analogous
foreign laws and regulations, which might, individually or in the
aggregate, result in a Material Adverse Effect.
(xiv) The Company and its subsidiaries are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement
9
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company and its subsidiaries would
have any liability; the Company and its subsidiaries have not incurred
and do not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Company
or any of its subsidiaries would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in all
material respects, and, to the Company's knowledge, nothing has
occurred, whether by action or by failure to act, which would cause the
loss of such qualification.
(xv) The Company and its subsidiaries maintain insurance
of the types and in the amounts generally deemed adequate for its
business, including, but not limited to, directors' and officers'
insurance, insurance covering real and personal property owned or
leased by the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect. Neither
the Company nor any of its subsidiaries has been refused any insurance
coverage sought or applied for, and the Company has no reason to
believe that it and its subsidiaries will not be able to renew their
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 have a Material Adverse
Effect.
(xvi) Neither the Company nor any of its subsidiaries is,
or with the giving of notice or lapse of time or both would be, in
default or violation with respect to its articles of incorporation or
by-laws. Neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is
subject, or in violation of any statutes, laws, ordinances or
governmental rules or regulations or any orders or decrees to which it
is subject, including, without limitation, Section 13 of the 1934 Act,
which default or violation, individually or in the aggregate, would
have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has, at any time during the past five years, (A) made any
unlawful contributions to any candidate for any political office, or
failed fully to disclose any contribution in violation of law, or (B)
made any payment to any state, federal or foreign government official,
or other person charged with similar public or quasi-public duty (other
than payment required or permitted by applicable law).
(xvii) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or
any of its subsidiaries
10
is a party or of which any property of the Company or any of its
subsidiaries is the subject, or to the Company's knowledge, any person
from whom the Company or any of its subsidiaries acquired any of such
property, or any lessee, sublessee or operator of any such property or
portion thereof is a party, that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect or which would materially and
adversely affect the consummation of the transactions contemplated
hereby or which is required to be disclosed in the Prospectus; to the
Company's knowledge, no such proceedings are threatened or
contemplated. Neither the Company nor any of its subsidiaries has, nor,
to the Company's knowledge, any seller, lessee, sublessee or operator
of any such properties, or portion thereof or any previous owner
thereof has, received from any governmental authority notice of any
material violation of any municipal, state or federal law, rule or
regulation (including without limitation any such law, rule or
regulation applicable to the health care industry) and including
foreign, federal, state or local law or regulation relating to human
health or safety or the environment or hazardous substances or
materials concerning such properties, or any part thereof which has
heretofore been cured, and neither the Company nor any of its
subsidiaries and, to the Company's knowledge, each such other person,
does not know of any such violation, or any factual basis, occurrence
or circumstance that would give rise to a claim under or pursuant to
any such laws, rules or regulations which would, individually or in the
aggregate, have a Material Adverse Effect. Except as described in the
Prospectus, none of the property owned or leased by the Company or any
of its subsidiaries is, to the knowledge of the Company, contaminated
with any waste or hazardous substances, and neither the Company nor any
of its subsidiaries may be deemed an "owner or operator" of a
"facility" or "vessel" which owns, possesses, transports, generates or
disposes of a "hazardous substance" as those terms are defined in
ss.9601 of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. ss.9601 et seq. Neither the Company
nor any of its subsidiaries, nor, to the Company's knowledge, any
seller, lessee, sublessee or operator of any such property, or portion
thereof has, received from any governmental authority any written
notice of any condemnation of or zoning change affecting such
properties, or any part thereof and the Company does not know of any
such condemnation or zoning change which is threatened and which if
consummated would have a Material Adverse Effect, or a material adverse
effect on any of such properties. No contract or document of a
character required to be described in the Registration Statement, the
Prospectus of any document incorporated by reference therein or to be
filed as an exhibit to the Registration Statement or any document
incorporated therein is not so described, filed or incorporated by
reference as required.
(xviii) The Company is not and, after giving effect to the
offering and sale of the Common Stock, will not be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(xix) The accounting firm which has certified the financial
statements filed with or incorporated by reference in and as a part of
the Registration Statement, is an independent public accounting firm
within the meaning of the 1933 Act and the
11
1933 Act Rules and Regulations. The consolidated financial statements
and schedules of the Company, including the notes thereto, filed with
or incorporated by reference and as a part of the Registration
Statement or Prospectus, are accurate in all material respects and
present fairly in all material respects the financial condition of the
Company and its subsidiaries as of the respective dates thereof and the
consolidated results of operations and changes in financial position
and consolidated statements of cash flow for the respective periods
covered thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved except as otherwise disclosed therein. All adjustments
necessary for a fair presentation of results for such periods have been
made. The selected financial data included or incorporated by reference
in the Registration Statement and Prospectus present fairly in all
material respects the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements.
Any operating or other statistical data included or incorporated by
reference in the Registration Statement and Prospectus comply in all
material respects with the 1933 Act and the 1933 Act Rules and
Regulations and present fairly in all material respects the information
shown therein.
(xx) Except as disclosed in the Prospectus, no holder of
any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company because of
the filing of the Registration Statement or the consummation of the
transactions contemplated hereby. No person has the right, contractual
or otherwise, to cause the Company to permit such person to underwrite
the sale of any shares of the Common Stock. Except for this Agreement
and any applicable Pricing Agreement, there are no contracts,
agreements or understandings between the Company or any of its
subsidiaries and any person that would give rise to a valid claim
against the Company, its subsidiaries or any Underwriter for a
brokerage commission, finder's fee or like payment in connection with
the issuance, purchase and sale of the Common Stock pursuant to a
Pricing Agreement.
(xxi) The Company has not distributed and, prior to the
later to occur of (i) the Closing Date or the Option Closing Date, if
any, relating to a particular issuance of Designated Shares and (ii)
completion of the distribution of the Designated Shares, will not
distribute any offering material in connection with the offering and
sale of the Designated Shares other than the Registration Statement,
the Prospectus Supplement, Preliminary Prospectus or the Prospectus
relating to such issuance.
(xxii) The Company has not taken and will not take, directly
or indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Company's Common Stock, and the Company is not aware of
any such action taken or to be taken by affiliates of the Company.
(xxiii) (i) The Company is organized and operates in
conformity with the requirements for qualification as a real estate
investment trust ("REIT") under Sections 856 and 857 of the Code, (ii)
the Company qualified as a REIT for all
12
taxable years prior to 2001, and (iii) the Company's method of
operation will enable it to meet the requirements for taxation as a
REIT under the Code for 2001 and all subsequent taxable years, and the
Company intends to qualify as a REIT for all such years.
(xxiv) Except as described in the Prospectus, neither the
Company nor any of its subsidiaries has either given or received any
communication regarding the termination of, or intent not to renew, any
of the leasehold interests of lessees in the Company's and its
subsidiaries' properties held under lease, any property operating
agreement or any other agreement between the Company or its
subsidiaries and the operators of its properties or facilities, and no
such termination or non-renewal has been threatened by the Company, any
of its subsidiaries or, to the Company's knowledge, any other party to
any such lease, other than as would not have, individually or in the
aggregate, a Material Adverse Effect.
(xxv) Except for the subsidiaries ("Material Subsidiaries")
identified on Annex D to this Agreement, none of the subsidiaries of
the Company individually consist of more than 1.5%, or in the aggregate
consist of more than 10%, of the Company's (i) net assets, or (ii)
revenues for the most recently ended quarterly period.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
5. ADDITIONAL COVENANTS. The Company covenants and agrees with
the Underwriter that:
(a) The Company will timely transmit copies of the Prospectus, and
any amendments or supplements thereto, or a term sheet or abbreviated term
sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933
Act Rules and Regulations.
(b) The Company will deliver to the Underwriter as soon as
practicable after the date of this Agreement as many copies of the Prospectus
(including all documents incorporated by reference therein) as the Underwriter
may reasonably request for the purposes contemplated by the 1933 Act; the
Company will promptly advise the Underwriter of any request of the SEC for
amendment of the Registration Statement or for supplement to the Prospectus or
for any additional information, and of the issuance by the SEC or any state or
other jurisdiction or other regulatory body of any stop order under the 1933 Act
or other order suspending the effectiveness of the Registration Statement (as
amended or supplemented) or preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the qualification or registration of
the Common Stock for offering or sale in any jurisdiction, and of the
institution or threat of any proceedings therefor, of which the Company shall
have received notice or otherwise have knowledge prior to the completion of a
particular distribution of Designated Shares; and the Company will use its best
efforts to prevent the issuance of any such stop order or other order and, if
issued, to secure the prompt removal thereof.
13
(c) After the date of the Pricing Agreement relating to an
issuance of Designated Shares and prior to the Closing Date relating to any
particular issuance of Designated Shares, the Company will not file any
amendment or supplement to the Registration Statement, the Prospectus (or any
other prospectus relating to the Common Stock filed pursuant to Rule 424(b) of
the 1933 Act Rules and Regulations that differs from the Prospectus as filed
pursuant to such Rule 424(b)) and will not file any document under the 1934 Act
before the termination of the offering of the Designated Shares by the
Underwriter if the document would be deemed to be incorporated by reference into
the Registration Statement or the Prospectus, of which the Underwriter shall not
previously have been advised and furnished with a copy or to which the
Underwriter shall have reasonably objected or which is not in compliance with
the 1933 Act Rules and Regulations; and the Company will promptly notify you
after it shall have received notice thereof of the time when any amendment to
the Registration Statement becomes effective or when any supplement to the
Prospectus has been filed.
(d) During the period when the Prospectus relating to any of the
Designated Shares is required to be delivered under the 1933 Act by any
Underwriter or dealer, the Company will comply, at its own expense, with all
requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as
now and hereafter amended, and by the rules and regulations of the SEC
thereunder, as from time to time in force, so far as necessary to permit the
continuance of sales of or dealing in the Designated Shares during such period
in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when the Prospectus relating to any of
the Designated Shares is required to be delivered under the 1933 Act by any
Underwriter or dealer, (i) any event relating to or affecting the Company or of
which the Company shall be advised in writing by the Underwriter shall occur as
a result of which, in the opinion of the Company or the Underwriter, the
Prospectus as then amended or supplemented would include 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 or (ii) it shall be necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the 1933 Act, the 1933
Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations,
the Company will forthwith at its expense prepare and file with the SEC, and
furnish to the Underwriter a reasonable number of copies of, such amendment or
supplement or other filing that will correct such statement or omission or
effect such compliance.
(f) From time to time as requested by the Underwriter and during
the period when the Prospectus relating to the Designated Shares is required to
be delivered under the 1933 Act by any Underwriter or dealer, the Company will
furnish such proper information as may be lawfully required and otherwise
cooperate in qualifying Designated Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as the Underwriter may
reasonably designate and will file and make in each year such statements or
reports as are or may be reasonably required by the laws of such jurisdictions;
provided, however, that the Company shall not be required to qualify as a
foreign corporation or shall be required to qualify as a dealer in securities or
to file a general consent to service of process under the laws of any
jurisdiction.
14
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158
of the 1933 Act Rules and Regulations, the Company will make generally available
to the holders of Designated Shares, as soon as practicable, an earning
statement (which need not be audited) in reasonable detail covering the 12
months beginning not later than the first day of the month next succeeding the
month in which occurred the effective date (within the meaning of Rule 158) of
the Pricing Agreement.
(h) The Company will file promptly all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act. The Company will furnish to its security holders annual reports containing
financial statements audited by independent public accountants and quarterly
reports containing financial statements and financial information which may be
unaudited. The Company will deliver to the Underwriter at its principal
executive office a reasonable number of copies of annual reports, quarterly
reports, current reports and copies of all other documents, reports and
information furnished by the Company to its shareholders or filed with any
securities exchange or market pursuant to the requirements of such exchange or
market or with the SEC pursuant to the 1933 Act or the 1934 Act. The Company
will deliver to the Underwriter similar reports with respect to any significant
subsidiaries, as that term is defined in the 1933 Act Rules and Regulations,
which are not consolidated in the Company's financial statements. Any report,
document or other information required to be furnished under this paragraph (h)
shall be furnished as soon as practicable after such report, document or
information becomes available.
(i) During the period beginning from the date of the Pricing
Agreement for such Designated Shares and continuing through the Closing Date
(and, if applicable, the Option Closing Date) relating to such Designated
Shares, the Company will not, without the prior written consent of the
Underwriter, offer for sale, sell or enter into any agreement to sell, or
otherwise dispose of, or publicly announce an intention to effect any such
transactions, any equity securities of the Company, except for the Designated
Shares.
(j) The Company will apply the proceeds from the sale of the
shares of Common Stock as set forth in the description under "Use of Proceeds"
in the Prospectus, as amended or supplemented, which description complies and
will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the SEC in
connection with the registration of the Common Stock under the 1933 Act.
(l) After the date of the Pricing Agreement and prior to the
Closing Date (and, if applicable, the Option Closing Date) relating to a
particular issuance of Designated Shares, the Company will furnish to you, as
soon as they have been prepared, and prior to any filing with the SEC or public
disclosure, copies of any unaudited interim consolidated financial statements of
the Company and its subsidiaries for any periods subsequent to the periods
covered by the financial statements appearing in the Registration Statement and
the Prospectus.
15
(m) After the date of the Pricing Agreement and prior to the
Closing Date (and, if applicable, the Option Closing Date) relating to any
particular issuance of Designated Shares, the Company will not issue any press
releases or other communications directly or indirectly and will hold no press
conferences with respect to the Company or any of its subsidiaries, the
financial condition, results of operations, business, properties, assets or
liabilities of the Company or any of its subsidiaries, or the offering of the
Common Stock, without your prior written consent.
(n) The Company will use its best efforts to obtain approval for,
and maintain the listing of the Designated Shares on, the NYSE and to file with
the NYSE all documents and notices required by the NYSE of companies that have
securities listed or included on the NYSE.
(o) The Company and its subsidiaries will maintain and keep
accurate books and records reflecting their assets and maintain internal
accounting controls which provide reasonable assurance that (1) transactions are
executed in accordance with management's authorization, (2) transactions are
recorded as necessary to permit the preparation of the Company's consolidated
financial statements and to maintain accountability for the assets of the
Company and its subsidiaries, (3) access to the assets of the Company and its
subsidiaries is permitted only in accordance with management's authorization,
and (4) the recorded accounts of the assets of the Company and its subsidiaries
are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933
Act for the sale of any Designated Shares pursuant to a Pricing Agreement, the
Company shall both file an Abbreviated Registration Statement with the SEC in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date
of the applicable Pricing Agreement, and (ii) the time that confirmations are
given or sent, as specified by Rule 462(b)(2).
(q) If at any time during the 90-day period after the date of the
Pricing Agreement of any particular issuance of Designated Shares, any rumor,
publication or event relating to or affecting the Company shall occur as a
result of which in your opinion the market price of the Common Stock has been or
is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after written notice from you advising the
Company to the effect set forth above, forthwith consult with you concerning the
issuance of a press release or other public statement, responding to or
commenting on such rumor, publication or event.
(r) (1) Each time the Registration Statement or Prospectus is
amended or supplemented (other than by an amendment or supplement by filing of a
Current Report on Form 8-K which the Company deems to be immaterial or with
respect to offerings of securities not pursuant to this Underwriting Agreement
Standard Provisions), the Company will deliver or cause to be delivered
forthwith to the Underwriter a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to the Underwriter, of the same tenor as the
certificate referred to in Section 6(h) of this Agreement relating to the
16
Registration Statement or the Prospectus as amended or supplemented to the time
of delivery of such certificate.
(2) Each time the Company furnishes a certificate
pursuant to Section 5(r)(1) of this Agreement, the Company will furnish or cause
to be furnished forthwith to the Underwriter a written opinion of counsel for
the Company. Any such opinion shall be dated the date of such amendment or
supplement, as the case may be, shall be in a form satisfactory to the
Underwriter and shall be of the same tenor as the opinion referred to in Section
6(c) of this Agreement, but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion. In lieu of such opinion, counsel last furnishing such an opinion to the
Underwriter may furnish to the Underwriter a letter to the effect that the
Underwriter may rely on such last opinion to the same extent as though it were
dated the date of such letter (except that statements in such last opinion will
be deemed to relate to the Registration Statement and the Prospectus as amended
or supplemented to the time of delivery of such letter.)
(3) Each time the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or supplemental
financial information or such amended or supplemental information is
incorporated by reference in the Prospectus (except with respect to offerings of
securities not pursuant to this Underwriting Agreement Standard Provisions), the
Company shall cause its independent public accountants forthwith to furnish the
Underwriter with a letter, dated the date of such amendment or supplement, as
the case may be, in form satisfactory to the Underwriter, of the same tenor as
the letter referred to in Section 6(e), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter; provided, however, that each time amended or supplemented
financial information is incorporated by reference in the Prospectus to the
Company's Quarterly Report on Form 10-Q or a Current Report on Form 8-K, the
letter required to be delivered pursuant to this Section 5(r)(3) shall be
delivered to the Underwriter only upon reasonable request.
(s) The Company will continue to qualify as a REIT under the Code.
(t) The Company has retained Ernst & Young as its qualified
accountants. Each year, in the course of its audit, Ernst & Young reviews the
Company's test procedures and conducts annual compliance reviews designed to
determine the Company's compliance with the REIT provisions of the Code and (ii)
otherwise assists the Company in monitoring appropriate accounting systems and
procedures designed to determine compliance with the REIT provisions of the
Code.
(u) The Company agrees to give, and will cause each of its
subsidiaries to give, and shall direct its financial advisors, accountants and
legal counsel to give, upon reasonable notice, the Underwriter and counsel to
the Underwriter and their respective authorized representatives reasonable
access to all offices and other facilities and to all contracts, agreements,
commitments, books and records of or pertaining to the Company or its
subsidiaries, will permit the foregoing to make such reasonable inspections as
they may require or would be appropriate in fulfilling any due diligence or
other obligations as
17
provided by law and will cause its officers to furnish to the Underwriter with
such financial and operating data and other information with respect to the
business and properties of the Company and its subsidiaries as the Underwriter
may from time to time reasonably request. The Underwriter, counsel to the
Underwriter, and their respective authorized representatives will use such
information only in full compliance with Regulation FD.
(v) During the period beginning from the date of the Pricing
Agreement for a particular issuance of Designated Shares and continuing through
the Closing Date (and, if applicable, the Option Closing Date) relating to such
Designated Shares, the Company agrees to not, and to use its reasonable best
efforts to cause its officers, directors and affiliates not to, (i) take,
directly or indirectly any action designed to stabilize or manipulate the price
of any security of the Company, or which may cause or result in, or which might
in the future 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 any security of the Company, (ii) sell, bid for, purchase or pay
anyone any compensation for soliciting purchases of shares of Common Stock other
than pursuant to this Agreement or (iii) pay or agree to pay to any person any
compensation for soliciting any order to purchase any other securities of the
Company.
6. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriter to purchase and pay for the Designated Shares under any Pricing
Agreement shall be subject to the accuracy, as of the date hereof, as of the
date of the Pricing Agreement and as of the Closing Date (and, if applicable,
the Option Closing Date) relating to a particular issuance of Designated Shares,
of the representations and warranties of the Company contained herein, to the
performance by the Company of its covenants and obligations hereunder, and to
the following additional conditions:
(a) If the Registration Statement has not previously become
effective, the Registration Statement and all post-effective amendments thereto
shall have become effective not later than 1:00 p.m., St. Louis time, on the
date of the Pricing Agreement, or at such later date and time as may be approved
by the Underwriter; if the Company has elected to rely on Rule 462(b) under the
1933 Act, the Abbreviated Registration Statement shall have become effective not
later than the earlier of (x) 9:00 p.m. St. Louis time, on the date of the
Pricing Agreement, or (y) at such later date and time as may be approved by the
Underwriter. All filings required by Rule 424 and Rule 430A of the 1933 Act
Rules and Regulations shall have been made. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceeding for that purpose shall have been initiated
or, to the knowledge of the Company or any Underwriter, threatened or
contemplated by the SEC, and any request of the SEC for additional information
(to be included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) The Underwriter shall not have advised the Company on or prior
to the Closing Date (and, if applicable, the Option Closing Date) relating to a
particular issuance of Designated Shares, that the Registration Statement or
Prospectus or any amendment or supplement thereto contains an untrue statement
of fact which, in the opinion of counsel to the Underwriter, is material, or
omits to state a fact which, in the opinion of such counsel,
18
is material and is required to be stated therein or is necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing
Date) relating to a particular issuance of Designated Shares, you shall have
received one or more opinions of counsel for the Company, addressed to you and
dated the Closing Date (and, if applicable, the Option Closing Date) for such
Designated Shares, in substantially the forms of Annex B and Annex C.
In rendering the opinion, such counsel may rely, (1) as to matters
involving laws of any jurisdiction other than New York or the United States,
upon opinions addressed to the Underwriter of other counsel satisfactory to it
and Xxxxx Xxxx LLP, and (2) as to all matters of fact, upon certificates and
written statements of the executive officers of, and accountants for, the
Company, provided, in either case, that such counsel shall state in their
opinion that they and the Underwriter are justified in relying thereon.
Such counsel shall also confirm that during the preparation of the
Registration Statement and Prospectus, such counsel participated in conferences
with officers and representatives of the Company and its independent
accountants, at which conferences the contents of the Registration Statement and
the Prospectus including all documents filed under the 1934 Act and deemed
incorporated by reference therein were discussed, reviewed and revised. On the
basis of the information which was developed in the course thereof, considered
in light of such counsel's understanding of applicable law and the experience
gained by such counsel through their practice thereunder, without such counsel
assuming responsibility for the accuracy and completeness of such statements
except to the extent expressly provided above, such counsel shall confirm that
nothing came to their attention that would lead them to believe that either the
Registration Statement (including any document filed under the 1934 Act and
deemed incorporated by reference therein), as of the Effective Date, 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, in
the light of the circumstances under which they were made, not misleading, or
the Prospectus or any amendment or supplement thereto (including any document
filed under the 1934 Act and deemed incorporated by reference therein) as of its
respective issue date and as of the Closing Date (or, if applicable, the Option
Closing Date) relating to a particular issuance of Designated Shares, contained
or contains any untrue statement of a material fact or omitted or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (other than the financial statements or other financial
data as to which such counsel need express no opinion).
(d) You shall have received on the Closing Date (and, if
applicable, the Option Closing Date) relating to a particular issuance of
Designated Shares, from Xxxxx Xxxx LLP, counsel to the Underwriter, such opinion
or opinions, dated the Closing Date (and, if applicable, the Option Closing
Date) relating to a particular issuance of Designated Shares with respect to
such matters as you may reasonably require; and the Company shall have furnished
to such counsel such documents as they reasonably request for the purposes of
enabling them to review or pass on the matters referred to in this Section 6 and
in order to
19
evidence the accuracy, completeness and satisfaction of the representations,
warranties and conditions herein contained.
(e) On the business day immediately preceding the date of the
applicable Pricing Agreement and on the Closing Date (and, if applicable, the
Option Closing Date) relating to a particular issuance of Designated Shares, you
shall have received from Ernst & Young LLP, a letter or letters, dated the date
of this Agreement and the Closing Date (and, if applicable, the Option Closing
Date) relating to a particular issuance of Designated Shares, respectively, in
form and substance satisfactory to you, confirming that they are independent
public accountants with respect to the Company within the meaning of the 1933
Act and the published Rules and Regulations, and 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 relating to the Company contained in the Registration Statement and
Prospectus.
(f) Except as contemplated in the Prospectus, (i) neither the
Company nor any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree; and (ii)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, or entered into any transactions, and there shall not have been any
change in the capital stock or short-term or long-term debt of the Company and
its subsidiaries or any change, or any development involving or which might
reasonably be expected to involve a prospective change in the condition
(financial or other), net worth, business, affairs, management, prospects,
results of operations or cash flow of the Company or its subsidiaries, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated Shares being
delivered on such Closing Date (and, if applicable, the Option Closing Date)
relating to a particular issuance of Designated Shares on the terms and in the
manner contemplated in the Prospectus.
(g) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the establishing on such exchange by the SEC or by such
exchanges or markets of minimum or maximum prices which are not in force and
effect on the date hereof; (ii) a suspension or material limitation in trading
in the Company's securities on the NYSE or the establishing on such exchange by
the SEC or by such exchange of minimum or maximum prices which are not in force
and effect on the date hereof; (iii) a general moratorium on commercial banking
activities declared by either federal or any state authorities; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, which in your
judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Shares in the manner contemplated in
the Prospectus; or (v) any calamity or crisis, change in national, international
or world affairs, act of God, change in the international or domestic markets,
or change in the existing financial, political or economic
20
conditions in the United States or elsewhere, which in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Shares in the manner contemplated in the Prospectus.
(h) You shall have received certificates, dated the Closing Date
(and, if applicable, the Option Closing Date) relating to a particular issuance
of Designated Shares and signed by the President and the Chief Financial Officer
of the Company, in their capacities as such, stating that:
(i) the condition set forth in Section 6(a) has been
fully satisfied;
(ii) they have carefully examined the Registration
Statement and the Prospectus as amended or supplemented and all
documents incorporated by reference therein and nothing has come to
their attention that would lead them to believe that either the
Registration Statement or the Prospectus, or any amendment or
supplement thereto or any documents incorporated by reference therein
as of their respective effective, issue or filing dates, contained, and
the Prospectus as amended or supplemented and all documents
incorporated by reference therein and when read together with the
documents incorporated by reference therein, at such Closing Date,
contains any untrue statement of a material fact, or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(iii) since the date of the applicable Pricing Agreement,
there has occurred no event required to be set forth in an amendment or
supplement to the Registration Statement or the Prospectus which has
not been so set forth and there has been no document required to be
filed under the 1934 Act and the 1934 Act Rules and Regulations that
upon such filing would be deemed to be incorporated by reference into
the Prospectus that has not been so filed;
(iv) all representations and warranties made herein by the
Company are true and correct at such Closing Date, with the same effect
as if made on and as of such Closing Date, and all agreements herein to
be performed or complied with by the Company on or prior to such
Closing Date have been duly performed and complied with by the Company;
(v) neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree;
(vi) except as disclosed in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any
of its subsidiaries has incurred any liabilities or obligations, direct
or contingent, other than in the ordinary course of business, or
entered into any transactions not in the ordinary course of business,
which in either case are material to the Company or such subsidiary;
and there has
21
not been any change in the capital stock or material increase in the
short-term debt or long-term debt of the Company or any of its
subsidiaries or any material adverse change or any development
involving or which may reasonably be expected to result in a Material
Adverse Effect; and there has been no dividend or distribution of any
kind, paid or made by the Company on any class of its capital stock;
and
(vii) covering such other matters as you may reasonably
request.
(j) The Company shall have furnished to you at the Closing Date
(and, if applicable, the Option Closing Date) relating to a particular issuance
of Designated Shares such further information, opinions, certificates, letters
and documents as you may have reasonably requested.
(k) The Designated Shares shall have been approved for trading
upon official notice of issuance on the New York Stock Exchange.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and to Xxxxx Xxxx LLP, counsel for the Underwriter. The Company
will furnish you with such signed and conformed copies of such opinions,
certificates, letters and documents as you may request.
If any of the conditions specified above in this Section 6 shall not
have been satisfied at or prior to the Closing Date (and, if applicable, the
Option Closing Date) relating to a particular issuance of Designated Shares or
waived by you in writing, the Pricing Agreement may be terminated by you on
notice to the Company.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will
indemnify and hold harmless the Underwriter from and against any losses, damages
or liabilities, joint or several, to which the Underwriter may become subject,
under the 1933 Act or otherwise, insofar as such losses, damages or liabilities
(or actions or claims in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus Supplement, Preliminary Prospectus, the Registration Statement, the
Prospectus or any other prospectus relating to the Common Stock, or any
amendment or supplement thereto, or in any blue sky application or other
document executed by the Company or based on any information furnished in
writing by the Company, filed in any state or other jurisdiction in order to
qualify any or all of the shares of Common Stock under the securities laws
thereof (the "Blue Sky Application"), or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) any untrue statement or alleged
untrue statement made by the Company in Section 4 of this Agreement or in any
representation or warranty by the Company to the Underwriter of the failure by
the Company to perform when and as required by any agreement or covenant
contained herein and will reimburse each Underwriter for any legal or other
expenses incurred by such Underwriter in connection with investigating,
preparing, pursuing or defending against any such loss, damage, liability or
action or claim, including, without limitation, any investigation or proceeding
by any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to the indemnified party,
22
as such expenses are incurred (including such losses, damages, liabilities or
expenses to the extent of the aggregate amount paid in settlement of any such
action or claim, provided that (subject to Section 7(d) hereof) any such
settlement is effected with the written consent of the Company); provided,
however, that the Company shall not be liable in any such case to the extent,
but only to the extent, that any such loss, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Prospectus Supplement, Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating to the
Common Stock, or any such amendment or supplement, in reliance upon and in
conformity with written information relating to the Underwriter furnished to the
Company by you, expressly for use in the preparation thereof (as provided in the
Pricing Agreement).
(b) The Underwriter will indemnify and hold harmless the Company
from and against any losses, damages or liabilities to which the Company may
become subject, under the 1933 Act or otherwise, insofar as such losses, damages
or liabilities (or actions or claims in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Prospectus Supplement, Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Common Stock,
or any amendment or supplement thereto, or any Blue Sky Application, or arise
out of are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Prospectus Supplement, Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating to the
Common Stock, or any such amendment or supplement, or any Blue Sky Application,
in reliance upon and in conformity with written information relating to the
Underwriter furnished to the Company by you, expressly for use in the
preparation thereof (as provided in the Pricing Agreement), and will reimburse
the Company for any legal or other expenses incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred (including such losses, damages, liabilities or expenses
to the extent of the aggregate amount paid in settlement of any such action or
claim, provided that (subject to Section 7(d) hereof) any such settlement is
effected with the written consent of the Underwriter.
(c) Promptly after receipt by an indemnified party under Section
7(a) or 7(b) hereof of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under Section 7(a) or 7(b) hereof, notify each such
indemnifying party in writing of the commencement thereof, but the failure so to
notify such indemnifying party shall not relieve such indemnifying party from
any liability except to the extent that it has been prejudiced in any material
respect by such failure or from any liability that it may have to any such
indemnified party otherwise than under Section 7(a) or 7(c) hereof. In case any
such action shall be brought against any such indemnified party and it shall
notify each indemnifying party of the commencement thereof, each such
indemnifying
23
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party under Section 7(a) or 7(c)
hereof similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and, after notice from such indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party
under Section 7(a) or 7(c) hereof for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. The indemnified party shall have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party at the expense of the indemnifying party has been
authorized by the indemnifying party, (ii) the indemnified party shall have been
advised by such counsel that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense, or
certain aspects of the defense, of such action (in which case the indemnifying
party shall not have the right to direct the defense of such action with respect
to those matters or aspects of the defense on which a conflict exists or may
exist on behalf of the indemnified party) or (iii) the indemnifying party shall
not in fact have employed counsel reasonably satisfactory to such indemnified
party to assume the defense of such action, in any of which events such fees and
expenses to the extent applicable shall be borne, and shall be paid as incurred,
by the indemnifying party. If at any time such indemnified party shall have
requested such indemnifying party under Section 7(a) or 7(b) hereof to reimburse
such indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a) or 7(b) hereof effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of such request for reimbursement, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No such indemnifying party
shall, without the written consent of such indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not such
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of such indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any such indemnified party.
In no event shall such indemnifying parties be liable for the fees and expenses
of more than one counsel, including any local counsel, for all such indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to indemnify or hold harmless an indemnified
party under Section 7(a) or 7(b) hereof in respect of any losses, damages or
liabilities (or actions or claims in respect thereof) referred to therein, then
each indemnifying party under Section 7(a) or 7(b) hereof shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
damages or liabilities (or actions or claims in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriter, on the other hand, from the
offering of the Designated Shares. If, however, the allocation provided by the
immediately preceding sentence is not
24
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 7(c) hereof and such indemnifying party was
prejudiced in a material respect by such failure, then each such indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault, as applicable, of the Company, on the one hand, and
the Underwriter, on the other hand, in connection with the statements or
omissions that resulted in such losses, damages or liabilities (or actions or
claims in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by, as applicable, the Company,
on the one hand, and the Underwriter, on the other hand, shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter. The relative fault, as
applicable, of the Company, on the one hand, and the Underwriter, 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, on the one hand, or the Underwriter, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to above in this Section 7(d). The amount paid or payable by such an indemnified
party as a result of the losses, damages or liabilities (or actions or claims in
respect thereof) referred to above in this Section 7(d) shall be deemed to
include any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Designated Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that the
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 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability that the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director, employee,
agent or other representative and to each person, if any, who controls any
Underwriter within the meaning of the 1933 Act; and the obligations of the
Underwriter under this Section 7 shall be in addition to any liability that the
respective Underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company who signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the 1933 Act.
(f) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof, including, without limitation, the
provisions of this Section 7, and are fully informed regarding such provisions.
They further acknowledge that the
25
provisions of this Section 7 fairly allocate the risks in light of the ability
of the parties to investigate the Company and its business in order to assure
that adequate disclosure is made in the Registration Statement, any Prospectus
Supplement, Preliminary Prospectus, the Prospectus, and any supplement or
amendment thereof, as required by the 1933 Act.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. The
respective representations, warranties, agreements and statements of the Company
and the Underwriter, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain operative and in
full force and effect regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of the Underwriter or any controlling
person of any Underwriter, the Company or any of its officers, directors or any
controlling persons, and shall survive delivery of and payment for the Common
Stock hereunder.
9. TERMINATION. (a) A Pricing Agreement may be terminated
by you at any time at or prior to the Closing Date by notice to the Company if
any condition specified in Section 6 hereof shall not have been satisfied on or
prior to the Closing Date. Any such termination shall be without liability of
any party to any other party except as provided in Sections 7 and 10 hereof.
(b) A Pricing Agreement also may be terminated by you, by notice
to the Company, as to any obligation of the Underwriter to purchase the Option
Shares, if any condition specified in Section 6 hereof shall not have been
satisfied at or prior to the Option Closing Date.
(c) This Agreement may be terminated at any time by the Company or
the Underwriter upon the giving of written notice of such termination, but
without prejudice to any rights, obligations or liabilities of any party hereto
accrued or incurred prior to such termination. The termination of this Agreement
shall not require termination of any Pricing Agreement, and the termination of
any Pricing Agreement shall not require termination of this Agreement.
If you terminate a Pricing Agreement as provided in Sections 9(a) or
9(b) or terminate this Agreement as provided in Section 9(c), you shall notify
the Company by telephone or telegram, confirmed in writing as provided in
Section 11.
10. COSTS AND EXPENSES. The Company, whether or not the
transactions contemplated hereby are consummated or this Agreement or any
Pricing Agreement is terminated, will bear and pay the costs and expenses
incident to the registration of the shares of Common Stock and public offering
thereof, including, without limitation, (a) all expenses (including stock
transfer taxes) incurred in connection with the delivery to the Underwriter of
the Common Stock, the filing fees of the SEC, the fees and expenses of the
Company's counsel and accountants, (b) the preparation, printing, filing,
delivery and shipping of the Registration Statement, each Prospectus Supplement,
Preliminary Prospectus, the Prospectus and any amendments or supplements thereto
and the printing, delivery and shipping of this Agreement and the Pricing
Agreement and other underwriting documents and any instruments or documents
related to any of the foregoing, (c) the furnishing of copies of such documents
to the Underwriter, (d) the registration or
26
qualification of the Designated Shares for offering and sale under the
securities laws of the various states and other jurisdictions, including the
reasonable fees and disbursements of counsel to the Underwriter relating to such
registration or qualification and in connection with preparing any Blue Sky
Memoranda or related analysis, (e) all printing and engraving costs related to
preparation of the certificates for the shares of Common Stock, including
transfer agent and registrar fees, (f) all fees and expenses relating to the
authorization of the Common Stock and the Designated Shares for trading on the
NYSE, (g) all travel expenses, including air fare and accommodation expenses, of
representatives of the Company in connection with the offering of the Common
Stock, and (h) all of the other costs and expenses incident to the performance
by the Company of the registration and offering of the Common Stock; provided,
that the Underwriter will bear and pay the fees and expenses of the
Underwriter's counsel (except as specifically provided in this Section 10), the
Underwriter's out-of-pocket expenses, and any advertising costs and expenses
incurred by the Underwriters incident to the public offering of the Common
Stock.
11. NOTICES. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing and if sent to the
Underwriter shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o X.X. Xxxxxxx & Sons, Inc. at Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Director, Corporate Finance,
facsimile number (000) 000-0000, with a copy to Xxxxx Xxxx LLP, attention: J.
Xxxx Xxxxxx, facsimile number (000) 000-0000, or if sent to the Company shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
to the Company at 0000 Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000,
attention: General Counsel, facsimile number (000) 000-0000, with a copy to
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC, attention: Xxxxxxxx X. Xxxx, facsimile
number (000) 000-0000.
12. PARTIES. This Agreement and each Pricing Agreement shall inure
to the benefit of and be binding upon the Underwriter, the Company and, to the
extent provided in Sections 7 and 8, the officers and directors of the Company
and each person who controls the Company or the Underwriter and their respective
heirs, executors, administrators, successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, corporation or other entity any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained;
this Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and said controlling persons and said officers
and directors, and for the benefit of no other person, corporation or other
entity. No purchaser of any of the shares of Common Stock from any Underwriter
shall be construed a successor or assign by reason merely of such purchase.
13. COUNTERPARTS. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
14. PRONOUNS. Whenever a pronoun of any gender or number is used
herein, it shall, where appropriate, be deemed to include any other gender and
number.
27
15. TIME OF ESSENCE. Time shall be of the essence of the Pricing
Agreement.
16. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the choice of law or conflict of laws principles thereof.
28
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company and the Underwriter.
HEALTHCARE REALTY TRUST INCORPORATED
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and Chief Executive
Officer
Accepted in St. Louis,
Missouri as of the date
first above written, on
X.X. XXXXXXX & SONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
29
December 18, 2001
X.X. XXXXXXX & SONS, INC.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Healthcare Realty Trust Incorporated, a Maryland corporation
(the "Company") proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement Standard Provisions, dated December 18, 2001 (the
"Underwriting Agreement"), a copy of which is attached hereto, to issue and sell
to X.X. Xxxxxxx & Sons, Inc. (the "Underwriter") the shares of common stock,
$0.01 par value ("Common Stock") of the Company set forth in the Schedule hereto
(the "Designated Shares"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had been
set forth in full herein.
Each reference to the "Registration Statement" in the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
the Company's Registration Statement on Form S-3, File No. 333-56608.
Only the items, if any, expressly listed in the Schedule
hereto constitute the information furnished by or on behalf of the Underwriter
as such information is referred to in Section 4(a)(ii) and Section 7 of the
Underwriting Agreement.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to the Underwriter, and the Underwriter agree to purchase from
the Company, at the time and place and at the purchase price set forth in the
Schedule hereto, the Designated Shares set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon acceptance hereof by
you, this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement among the Underwriters and the Company.
Very truly yours,
HEALTHCARE REALTY TRUST INCORPORATED
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
Acceptance as of the date hereof:
X.X. XXXXXXX & SONS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE TO PRICING AGREEMENT
Number of Firm Shares: 525,000
Number of Option Shares: 0
Price to Public: $28.10
Purchase Price by the Underwriter: $26.70
Closing Date: December 21, 2001
Other terms: None
Information provided by Underwriter: The third paragraph in the section entitled
"Underwriting" in the Prospectus Supplement for the Designated Shares dated
December 18, 2001 is the only written information furnished by the Underwriter
to the Company for inclusion in the Prospectus Supplement.
