Exhibit 1
HOME PROPERTIES, INC.
2,969,914 Shares
Common Stock
($.01 par value per Share)
UNDERWRITING AGREEMENT
May 9, 2006
UNDERWRITING AGREEMENT
May 9, 2006
UBS Securities LLC
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Ladies and Gentlemen:
Home Properties, Inc., a Maryland corporation (the "Company"), and each
person or entity (each, a "Selling Stockholder") identified as a Selling
Stockholder in Schedule B annexed hereto, confirm their respective agreements
with UBS Securities LLC ("you" or the "Underwriter"), with respect to the sale
by the Selling Stockholders and the purchase by the Underwriter of an aggregate
of 2,969,914 shares (the "Shares") of common stock, $.01 par value per share
(the "Common Stock"), of the Company. The number of Shares to be sold by each
Selling Stockholder is the number of Shares set forth opposite the name of such
Selling Stockholder in Schedule B annexed hereto. The Shares are described in
the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form "S-3" (File No. 333-133933) under
the Act (the "registration statement"), including a preliminary prospectus
relating to the Shares, which registration statement incorporates by reference
documents which the Company has filed, or will file, in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the "Exchange Act"). Such registration
statement has become effective under the Act.
Except where the context otherwise requires, "Registration Statement," as
used herein, means the registration statement, as amended at the time of such
registration statement's effectiveness for purposes of Section 11 of the Act, as
such section applies to the Underwriter (the "Effective Time"), including (i)
all documents filed as a part thereof or incorporated or deemed to be
incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is deemed, pursuant to
Rule 430B or Rule 430C under the Act, to be part of the registration statement
at the Effective Time, and (iii) any registration statement filed to register
the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriter and by dealers
in connection with the offering of the Shares, copies of one or more preliminary
prospectuses, and the documents incorporated by reference therein, relating to
the Shares. Except where the context otherwise requires, "Preliminary
Prospectus," as used herein, means each such preliminary prospectus, in the form
so furnished.
Except where the context otherwise requires, "Prospectus," as used herein,
means the final prospectus, relating to the Shares, filed by the Company with
the Commission pursuant to Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be required
under the Act), in the form furnished by the Company to you for use by the
Underwriter and by dealers in connection with the offering of the Shares.
"Permitted Free Writing Prospectuses," as used herein, means the documents
listed on Schedule A attached hereto and each "road show" (as defined in Rule
433 under the Act), if any, related to the offering of the Shares contemplated
hereby that is a "written communication" (as defined in Rule 405 under the Act).
The Underwriter has not offered or sold and will not offer or sell, without the
Company's consent, any Shares by means of any "free writing prospectus" (as
defined in Rule 405 under the Act) that is required to be filed by the
Underwriter with the Commission pursuant to Rule 433 under the Act, other than a
Permitted Free Writing Prospectus.
"Disclosure Package," as used herein, means any Preliminary Prospectus
together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any.
Any reference herein to the registration statement, the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus shall be deemed to refer to and include the documents, if
any, incorporated by reference, or deemed to be incorporated by reference,
therein (the "Incorporated Documents"), including, unless the context otherwise
requires, the documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
on or after the initial effective date of the Registration Statement, or the
date of such Preliminary Prospectus, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
As used in this Agreement, "business day" shall mean a day on which the New
York Stock Exchange (the "NYSE") is open for trading. The terms "herein,"
"hereof," "hereto," "hereinafter" and similar terms, as used in this Agreement,
shall in each case refer to this Agreement as a whole and not to any particular
section, paragraph, sentence or other subdivision of this Agreement. The term
"or," as used herein, is not exclusive.
The Company, each of the Selling Stockholders and the Underwriter agree as
follows:
1. Sale and Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, each of the Selling
Stockholders agrees to sell, in each case severally and not jointly, to the
Underwriter and the Underwriter agrees to purchase from each Selling Stockholder
the number of Shares set forth opposite the name of such Selling Stockholder in
Schedule B at a purchase price of $49.60 per Share. The Company is advised by
you that the Underwriter intends (i) to make a public offering of the Shares as
soon after the effectiveness of this Agreement as in your judgment is advisable
and (ii) initially to offer the Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
Pursuant to the Limited Partnership Agreements, as currently in effect, of
each of the Selling Stockholders, ▇▇▇▇▇▇▇ ▇. Lewiston and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ are the
Managing General Partners of each of the Selling Stockholders. Each of the
foregoing persons (collectively, the "Representatives of the Selling
Stockholders") is authorized, on behalf of each Selling Stockholder, among other
things, to execute any documents necessary or desirable in connection with the
sale of the Shares to be sold hereunder by such Selling Stockholder, to make
delivery of the certificates of such Shares, to receive the proceeds of the sale
of such Shares, to give receipts for such proceeds, to pay therefrom the
expenses to be borne by such Selling Stockholder in connection with the sale and
public offering of the Shares, to distribute the balance of such proceeds to
such Selling Stockholder, to receive notices on behalf of such Selling
Stockholder and to take such other action as may be necessary or desirable in
connection with the transactions contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Shares shall
be made to each Selling Stockholder by Federal Funds wire transfer against
delivery of the Shares to the Underwriter through the facilities of The
Depository Trust Company ("DTC") for the Underwriter's account. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on the closing date
(May 15, 2006, unless another time shall be agreed to by the Underwriter and the
Company and any Representative of the Selling Stockholders). The time at which
such payment and delivery are to be made is hereinafter sometimes called the
"time of purchase." Electronic transfer of the Shares shall be made to the
Underwriter at the time of purchase in such names and in such denominations as
you shall specify.
Deliveries of the documents described in Section 9 hereof with respect to
the purchase of the Shares shall be made at the offices of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:00
A.M., New York City time, on the date of the closing of the purchase of the
Shares.
3. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with the Underwriter that:
(a) the Registration Statement has heretofore become effective under the
Act or, with respect to any registration statement to be filed to
register the offer and sale of Shares pursuant to Rule 462(b) under
the Act, will be filed with the Commission and become effective under
the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Shares; no stop
order of the Commission preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, or the effectiveness of the Registration Statement, has
been issued, and no proceedings for such purpose have been instituted
or, to the Company's knowledge, are contemplated by the Commission;
(b) the Registration Statement complied when it became effective, complies
as of the date hereof and, as amended or supplemented, at the time of
purchase, and at all times during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, will comply, in all material respects, with the
requirements of the Act; the conditions to the use of Form S-3 in
connection with the offering and sale of the Shares as contemplated
hereby have been satisfied; the Registration Statement constitutes an
"automatic shelf registration statement" (as defined in Rule 405 under
the Act); the Company has not received, from the Commission, a notice,
pursuant to Rule 401(g)(2), of objection to the use of the automatic
shelf registration statement form; as of the determination date
applicable to the Registration Statement (and any amendment thereof)
and the offering contemplated hereby, the Company is a "well-known
seasoned issuer" as defined in Rule 405 under the Act; the
Registration Statement meets, and the offering and sale of the Shares
as contemplated hereby complies with, the requirements of Rule 415
under the Act (including, without limitation, Rule 415(a)(5) under the
Act); the Registration Statement did not, as of the Effective Time,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; each Preliminary Prospectus
complied, at the time it was filed with the Commission, and complies
as of the date hereof, in all material respects with the requirements
of the Act; at no time during the period that begins on the earlier of
the date of such Preliminary Prospectus and the date such Preliminary
Prospectus was filed with the Commission and ends at the time of
purchase did or will any Preliminary Prospectus, as then amended or
supplemented, include an 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, and at no time during such period did or will any
Preliminary Prospectus, as then amended or supplemented, together with
any combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, include an 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; the Prospectus will comply, as
of its date, the date it is filed with the Commission, the time of
purchase, and at all times during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with any
sale of Shares in all material respects, with the requirements of the
Act (including, without limitation, Section 10(a) of the Act); at no
time during the period that begins on the earlier of the date of the
Prospectus and the date the Prospectus is filed with the Commission
and ends at the later of the time of purchase, and the end of the
period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Shares did or will the Prospectus, as then amended or supplemented,
include an 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; at no time during the period that begins on the date of
such Permitted Free Writing Prospectus and ends at the time of
purchase did or will any Permitted Free Writing Prospectus include an
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; provided,
however, that the Company makes no representation or warranty in this
Section 3(b) with respect to any statement contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning the Underwriter and furnished
in writing by or on behalf of the Underwriter through you to the
Company expressly for use in the Registration Statement, such
Preliminary Prospectus, the Prospectus or such Permitted Free Writing
Prospectus; each Incorporated Document, at the time such document was
filed with the Commission or at the time such document became
effective, as applicable, complied, in all material respects, with the
requirements of the Exchange Act and did not include an 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; provided,
however that for the purpose of this sentence any representations or
warranties that are set forth in any exhibit to any Incorporated
Document shall not be deemed to be statements included in such
Incorporated Document;
(c) prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Shares by means of any
"prospectus" (within the meaning of the Act) or used any "prospectus"
(within the meaning of the Act) in connection with the offer or sale
of the Shares, in each case other than the Preliminary Prospectuses
and the Permitted Free Writing Prospectuses, if any; the Company has
not, directly or indirectly, prepared, used or referred to any
Permitted Free Writing Prospectus except in compliance with Rule 163
or with Rules 164 and 433 under the Act; assuming that such Permitted
Free Writing Prospectus is so sent or given after the Registration
Statement was filed with the Commission (and after such Permitted Free
Writing Prospectus was, if required pursuant to Rule 433(d) under the
Act, filed with the Commission), the sending or giving, by the
Underwriter, of any Permitted Free Writing Prospectus will satisfy the
provisions of Rule 164 and Rule 433 (without reliance on subsections
(b), (c) and (d) of Rule 164); the conditions set forth in one or more
of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the
Act are satisfied, and the registration statement relating to the
offering of the Shares contemplated hereby, as initially filed with
the Commission, includes a prospectus that, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the Underwriter is
disqualified, by reason of subsection (f) or (g) of Rule 164 under the
Act, from using, in connection with the offer and sale of the Shares,
"free writing prospectuses" (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is not an
"ineligible issuer" (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under
the Act with respect to the offering of the Shares contemplated by the
Registration Statement; the parties hereto agree and understand that
the content of any and all "road shows" (as defined in Rule 433 under
the Act) related to the offering of the Shares contemplated hereby is
solely the property of the Company;
(d) in accordance with Rule 2710(b)(7)(C)(i) of the National Association
of Securities Dealers, Inc. (the "NASD"), the Shares have been
registered with the Commission on Form S-3 under the Act pursuant to
the standards for such Form S-3 in effect prior to October 21, 1992;
(e) as of the date of this Agreement, the Company has an authorized and
outstanding capitalization as set forth in the section of the
Registration Statement, the Preliminary Prospectuses and the
Prospectus entitled "Description of capital stock" (and any similar
sections or information, if any, contained in any Permitted Free
Writing Prospectus), and, as of the time of purchase, the Company
shall have an authorized and outstanding capitalization as set forth
in the section of the Registration Statement, the Preliminary
Prospectuses and the Prospectus entitled "Description of capital
stock" (and any similar sections or information, if any, contained in
any Permitted Free Writing Prospectus) (subject, in each case, to the
issuance of shares of Common Stock upon exercise of stock options and
warrants disclosed as outstanding in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus and the grant of options under existing stock option plans
described in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus); all of the
issued and outstanding shares of capital stock, including the Common
Stock, of the Company have been duly authorized and validly issued and
are fully paid and non-assessable, have been issued in compliance with
all applicable securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar
right; as of the time of purchase the Shares will be duly listed, and
admitted and authorized for trading on the NYSE;
(f) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, and to execute and
deliver this Agreement;
(g) the Company is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate (i) have a
material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and the
Subsidiaries (as defined below) taken as a whole, (ii) prevent or
materially interfere with consummation of the transactions
contemplated hereby or (iii) result in the delisting of shares of
Common Stock from the NYSE (the occurrence of any such effect or any
such prevention or interference or any such result described in the
foregoing clauses (i), (ii) and (iii) being herein referred to as a
"Material Adverse Effect");
(h) the Company has no subsidiaries (as defined under the Act), other than
those listed on Exhibit 21 of the Company's annual report on Form 10-K
for the year ended December 31, 2005 and those which, individually or
in the aggregate, do not constitute a "significant subsidiary" as such
term is defined in Rule 1-02(w) of Regulation S-X (collectively, the
"Subsidiaries"); the Company owns all of the issued and outstanding
capital stock or other equity interests of each of the Subsidiaries,
other than as described in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, other than the capital stock and other equity
interests of the Subsidiaries, the Company does not own, directly or
indirectly, any shares of stock or any other equity interests or
long-term debt securities of any corporation, firm, partnership, joint
venture, association or other entity; complete and correct copies of
the charters and the bylaws or other organic document of the Company
and each Subsidiary and all amendments thereto have been delivered to
you, and no changes therein will be made on or after the date hereof
through and including the time of purchase; each of the Subsidiaries,
including, without limitation, the Operating Partnership (as defined
below), has been duly incorporated, organized or formed, as the case
may be, and is validly existing in good standing under the laws of its
jurisdiction of incorporation, organization or formation, as the case
may be, with full corporate or other power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement, the Preliminary Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses; each Subsidiary is duly
qualified to do business as a foreign corporation, limited liability
company or limited partnership, as the case may be, and is in good
standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification,
except where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse Effect;
all of the outstanding shares of capital stock or other equity
interests of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable, other than
partnership interests held by the general partner or any Subsidiary
that is organized as a general or limited partnership, as applicable,
have been issued in compliance with all applicable securities laws,
were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right and are owned by the Company
subject to no security interest, other encumbrance or adverse claims;
no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding; and the Company has no "significant subsidiary" as that
term is defined in Rule 1-02(w) of Regulation S-X under the Act other
than the Operating Partnership;
(i) the Shares to be sold by the Selling Stockholders pursuant hereto have
been duly and validly authorized and issued and are and, after they
are delivered against payment therefor as provided herein, will be
fully paid, non-assessable and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and similar
rights; the Shares to be sold by the Selling Stockholders pursuant
hereto are and, after they are delivered against payment therefor as
provided herein, will be free of any restriction upon the voting or
transfer thereof pursuant to the Company's charter or bylaws or any
agreement or other instrument to which the Company is a party, except
for certain transfer restrictions in the Company's certificate of
incorporation that are designed to maintain the Company's
qualification as a REIT under the Code;
(j) the capital stock of the Company, including the Shares, conforms in
all material respects to each description thereof, contained or
incorporated by reference in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any; and the certificates for the Shares are
in due and proper form and conform in all material respects to the
requirements of the Maryland General Corporation law;
(k) this Agreement has been duly authorized, executed and delivered by the
Company;
(l) neither the Company nor any of the Subsidiaries is in breach or
violation of or in default under (nor has any event occurred which,
with notice, lapse of time or both, would result in any breach or
violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (A) its charter or bylaws, or (B) any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound or affected, or (C) any federal,
state, local or foreign law, regulation or rule, or (D) any rule or
regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation,
the rules and regulations of the NYSE), or (E) any decree, judgment or
order applicable to it or any of its properties; except in each case
where such breach or violation would not have a Material Adverse
Effect;
(m) the execution, delivery and performance of this Agreement, the sale of
the Shares to be sold by the Selling Stockholders pursuant hereto and
the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which, with notice, lapse of
time or both, would result in any breach or violation of, constitute a
default under or give the holder of any indebtedness (or a person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness under)
(or result in the creation or imposition of a lien, charge or
encumbrance on any property or assets of the Company or any Subsidiary
pursuant to) (A) the charter or bylaws of the Company or any of the
Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule applicable to
the Company, or (D) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the NYSE)
applicable to the Company, or (E) any decree, judgment or order
applicable to the Company or any of the Subsidiaries or any of their
respective properties; except in the case of clause (B) where such
breach or violation would not have a Material Adverse Effect;
(n) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or of or with any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NYSE (other than the
listing of the Shares with the NYSE)), or approval of the stockholders
of the Company, is required in connection with the sale of the Shares
to be sold by the Selling Stockholders pursuant hereto or the
consummation of the transactions contemplated hereby, other than (i)
registration of the Shares under the Act, which has been effected (or,
with respect to any registration statement to be filed hereunder
pursuant to Rule 462(b) under the Act, will be effected in accordance
herewith), or (ii) any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriter;
(o) except as described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus: (i)
no person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of Common Stock or shares of
any other capital stock or other equity interests of the Company, (ii)
no person has any preemptive rights, resale rights, rights of first
refusal or other rights to purchase any shares of Common Stock or
shares of any other capital stock of or other equity interests in the
Company from the Company except as set forth in the limited
partnership agreement of the Operating Partnership and disclosed in
the Registration Statement and the Prospectus and (iii) no person has
the right to act as an underwriter or as a financial advisor to the
Company in connection with the offer and sale of the Shares; no person
has the right, contractual or otherwise, to cause the Company to
register under the Act any shares of Common Stock or shares of any
other capital stock of or other equity interests in the Company, or to
include any such shares or interests in the Registration Statement or
the offering contemplated thereby;
(p) each of the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary
filings required under any applicable law, regulation or rule, and has
obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct their respective
businesses; neither the Company nor any of the Subsidiaries is in
violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries, except
where such failure to obtain or to file, or such violation, default,
revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect;
(q) there are no actions, suits, claims, investigations or proceedings
pending or, to the Company's knowledge, threatened or contemplated to
which the Company or any of the Subsidiaries or any of their
respective directors or officers is or would be a party or of which
any of their respective properties is or would be subject at law or in
equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency, or before
or by any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NYSE), except
any such action, suit, claim, investigation or proceeding which, if
resolved adversely to the Company or any Subsidiary, would not,
individually or in the aggregate, have a Material Adverse Effect;
(r) PricewaterhouseCoopers LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is included or
incorporated by reference in the Registration Statement, the
Preliminary Prospectuses and the Prospectus, are independent
registered public accountants as required by the Act and by the rules
of the Public Company Accounting Oversight Board;
(s) the financial statements included or incorporated by reference in the
Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, together with the
related notes and schedules, present fairly the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations, cash flows and changes in
stockholders' equity of the Company for the periods specified and have
been prepared in compliance with the requirements of the Act and
Exchange Act and in conformity with U.S. generally accepted accounting
principles applied on a consistent basis during the periods involved;
all pro forma financial statements or data included or incorporated by
reference in the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any,
comply with the requirements of the Act and the Exchange Act, and the
assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used
therein are appropriate to give effect to the transactions or
circumstances described therein and the pro forma adjustments have
been properly applied to the historical amounts in the compilation of
those statements and data; the other financial and statistical data
contained or incorporated by reference in the Registration Statement,
the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, are accurately and fairly presented and
prepared on a basis consistent with the financial statements and books
and records of the Company and its subsidiaries; there are no
financial statements (historical or pro forma) that are required to be
included or incorporated by reference in the Registration Statement,
any Preliminary Prospectus or the Prospectus that are not included or
incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus; and all
disclosures contained or incorporated by reference in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, regarding "non-GAAP
financial measures" (as such term is defined by the rules and
regulations of the Commission) comply in all material respects with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under
the Act, to the extent applicable;
(t) subsequent to the respective dates as of which information is given in
the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, in
each case excluding any amendments or supplements to the foregoing
made after the execution of this Agreement, there has not been (i) any
material adverse change, or any development involving a prospective
material adverse change, in the business, properties, management,
financial condition or results of operations of the Company and the
Subsidiaries taken as a whole, (ii) any transaction which is material
to the Company and the Subsidiaries taken as a whole, (iii) any
obligation or liability, direct or contingent (including any
off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and the Subsidiaries
taken as a whole, (iv) any change in the capital stock or outstanding
indebtedness of the Company or any Subsidiaries other than pursuant to
options or rights outstanding on the date of this Agreement and
disclosed in the Registration Statement and the Prospectus or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company or any Subsidiary;
(u) the Company has obtained for the benefit of the Underwriter the
agreement (a "Lock-Up Agreement"), in the form set forth as Exhibit A
hereto, of each of its directors and "officers" (within the meaning of
Rule 16a-1(f) under the Exchange Act), named in Exhibit A-1 hereto;
(v) neither the Company nor any Subsidiary is, and at no time during which
a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares will any of them
be, and, after giving effect to the offering and sale of the Shares,
neither of them will 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 "Investment
Company Act");
(w) (i) each of the Company and each of the Subsidiaries has good and
marketable title to all of the real property disclosed in the
Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as being owned by
them (the "Properties") and the assets reflected in the financial
statements or otherwise disclosed in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, free and clear of all liens,
encumbrances, claims, mortgages, deeds of trust, restrictions,
security interests and defects ("Property Encumbrances"), except for:
(A) the leasehold interests of lessees in the Company's and the
Subsidiaries' properties held under lease (the "Leases"), (B) those
Property Encumbrances set forth in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, and (C) imperfections in title, liens
encumbrances, claims, mortgages, deeds of trust, restrictions,
security interests and defects existing in the ordinary course of
business of the Company which do not have a Material Adverse Effect;
(ii) all of the leases under which any of the Company or the
Subsidiaries holds or uses real or personal properties or other assets
as a lessee are valid and binding and in full force and effect, and
neither the Company nor any of the Subsidiaries is in default in
respect of any of the terms or provisions of any of such leases and no
claim has been asserted by anyone adverse to any such party's rights
as lessee under any of such leases, or affecting or questioning any
such party's right to the continued possession or use of the leased
property or assets under any such leases, and all such leases conform
to the description thereof contained in the Registration Statement,
the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, except where the invalidity, default or
claim, individually or in the aggregate, would not have a Material
Adverse Effect; (iii) each of the Leases pertaining to the Properties
is valid and binding against the Company or a Subsidiary, as
applicable, and, to the Company's or such Subsidiary's knowledge, each
other party thereto, and is in full force and effect, and no lessee of
any portion of any of the Properties 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; (iv) all Property Encumbrances which could materially
affect the use of such Properties by the Company or its Subsidiaries
in the ordinary course of business, on or affecting any Properties of
the Company or any of the Subsidiaries which are required to be
disclosed in the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any,
are disclosed therein; (v) no person has an option to purchase all or
part of any material Property or any interest therein, except as
described or incorporated by reference in the Prospectus; (vi) each of
the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the properties)
and with all agreements between the Company or any Subsidiary and
third parties relating to the ownership or use of any Property by the
Company or such Subsidiary, except as disclosed in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any or where the failure do so
comply would not, individually or in the aggregate, have a Material
Adverse Effect; and (vii) there is no pending or threatened
condemnation proceedings, zoning change, or other similar proceeding
or action that will in any material respect affect the size of, use
of, improvements on, construction on or access to the Properties,
which if adversely determined as to the Company or any Subsidiary
would have a Material Adverse Effect;
(x) title insurance in favor of the mortgagee or the Company and/or the
Subsidiaries is maintained with respect to each material Property
owned by any such entity in an amount at least equal to (a) the cost
of acquisition of such Property or (b) the cost of construction of
such Property (measured at the time of such construction);
(y) the mortgages and deeds of trust encumbering the properties and assets
described in the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any,
are not convertible nor does any of the Company or the Subsidiaries
hold a participating interest therein;
(z) each of the partnership and joint venture agreements to which the
Company or any of the Subsidiaries is a party, and which relates to a
Property described in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, has been duly authorized, executed and delivered
by the Company or the applicable Subsidiary (the "applicable party")
and constitutes the valid agreement thereof, enforceable in accordance
with its terms, except as limited by: (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors or. (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law; and the
execution, delivery and performance of any of such agreements by the
Company or any applicable Subsidiary, did not, at the time of
execution and delivery, and does not constitute a breach of, or
default under, the charter or bylaws of the applicable party or any
material contract, lease or other instrument to which the applicable
party is a party or by which its properties may be bound or any law,
administrative regulation or administrative or court order or decree;
(aa) each of the Company and the Subsidiaries owns or possesses all
inventions, patent applications, patents, trademarks (both registered
and unregistered), tradenames, service names, copyrights, trade
secrets and other proprietary information described in the
Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as being owned or
licensed by it or which is necessary for the conduct of, or material
to, its businesses (collectively, the "Intellectual Property"), and
the Company is unaware of any claim to the contrary or any challenge
by any other person to the rights of the Company or any of the
Subsidiaries with respect to the Intellectual Property. To the
knowledge of the Company, neither the Company nor any of the
Subsidiaries has infringed or is infringing the intellectual property
of a third party, and neither the Company nor any Subsidiary has
received notice of a claim by a third party to the contrary;
(bb) neither the Company nor any of the Subsidiaries is engaged in any
unfair labor practice; except for matters which would not,
individually or in the aggregate, have a Material Adverse Effect, (i)
there is (A) no unfair labor practice complaint pending or, to the
Company's knowledge, threatened against the Company or any of the
Subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or, to the Company's knowledge,
threatened, (B) no strike, labor dispute, slowdown or stoppage pending
or, to the Company's knowledge, threatened against the Company or any
of the Subsidiaries and (C) no union representation dispute currently
existing concerning the employees of the Company or any of the
Subsidiaries, (ii) to the Company's knowledge, no union organizing
activities are currently taking place concerning the employees of the
Company or any of the Subsidiaries and (iii) there has been no
material violation of any federal, state, local or foreign law
relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the
Employee Retirement Income Security Act of 1974 ("ERISA") or the rules
and regulations promulgated thereunder concerning the employees of the
Company or any of the Subsidiaries;
(cc) the Company and the Subsidiaries and their respective properties,
assets and operations are in compliance with, and the Company and each
of the Subsidiaries hold all permits, authorizations and approvals
required under, Environmental Laws (as defined below), except to the
extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the
aggregate, have a Material Adverse Effect; there are no past, present
or, to the Company's knowledge, reasonably anticipated future events,
conditions, circumstances, activities, practices, actions, omissions
or plans that could reasonably be expected to give rise to any
material costs or liabilities to the Company or any Subsidiary under,
or to materially interfere with or prevent compliance by the Company
or any Subsidiary with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries (i) is the subject of
any investigation, (ii) has received any notice or claim, (iii) is a
party to or affected by any pending or, to the Company's knowledge,
threatened action, suit or proceeding, (iv) is bound by any judgment,
decree or order or (v) has entered into any agreement, in each case
relating to any alleged violation of any Environmental Law or any
actual or alleged release or threatened release or cleanup at any
location of any Hazardous Materials (as defined below) (as used
herein, "Environmental Law" means any federal, state, local or foreign
law, statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and
"Hazardous Materials" means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any
Environmental Law);
(dd) in the ordinary course of their business, the Company and each of the
Subsidiaries conduct periodic reviews of the effect of the
Environmental Laws on their respective businesses, operations and
properties, in the course of which they identify and evaluate
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for cleanup, closure of
properties or compliance with the Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties);
(ee) all tax returns required to be filed by the Company or any of the
Subsidiaries have been timely filed and were complete and accurate
when filed, and all taxes and other assessments of a similar nature
(whether imposed directly or through withholding) including any
interest, additions to tax or penalties applicable thereto due or
claimed to be due from such entities have been timely paid, other than
those being contested in good faith and for which adequate reserves
have been provided, except as described or incorporated by reference
in the Prospectus or where the failure to file or pay would not have a
Material Adverse Effect;
(ff) the Company and each of the Subsidiaries maintain insurance covering
their respective properties, operations, personnel and businesses as
the Company reasonably deems adequate; such insurance insures against
such losses and risks to an extent which is adequate in accordance
with customary industry practice to protect the Company and the
Subsidiaries and their respective businesses; all such insurance is
fully in force on the date hereof and will be fully in force at the
time of purchase; neither the Company nor any Subsidiary has reason to
believe that it will not be able to renew any such insurance as and
when such insurance expires;
(gg) neither the Company nor any Subsidiary has sent or received any
communication regarding termination of, or intent not to renew, any of
the contracts or agreements referred to or described in any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, or referred to or described in, or filed as an exhibit to,
the Registration Statement or any Incorporated Document, and no such
termination or non-renewal has been threatened by the Company or any
Subsidiary or, to the Company's knowledge, any other party to any such
contract or agreement;
(hh) the Company and each of the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(ii) the Company has established and maintains and evaluates "disclosure
controls and procedures" (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and "internal control over financial
reporting" (as such term is defined in Rule 13a-15 and 15d-15 under
the Exchange Act); such disclosure controls and procedures are
designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the
Company's Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; the Company's independent auditors and the Audit
Committee of the Board of Directors of the Company have been advised
of: (i) all significant deficiencies, if any, in the design or
operation of internal controls which could adversely affect the
Company's ability to record, process, summarize and report financial
data; and (ii) all fraud, if any, whether or not material, that
involves management or other employees who have a role in the
Company's internal controls; all material weaknesses, if any, in
internal controls have been identified to the Company's independent
auditors; since the date of the most recent evaluation of such
disclosure controls and procedures and internal controls, there have
been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and
material weaknesses; the principal executive officers (or their
equivalents) and principal financial officers (or their equivalents)
of the Company have made all certifications required by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and any related
rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and
correct; the Company, the Subsidiaries and, to the knowledge of the
Company, the Company's directors and officers, are each in compliance
in all material respects with all applicable effective provisions of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations of the Commission
and the NYSE promulgated thereunder;
(jj) each "forward-looking statement" (within the meaning of Section 27A of
the Act or Section 21E of the Exchange Act) contained or incorporated
by reference in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, has been made or reaffirmed with a reasonable
basis and in good faith;
(kk) all statistical or market-related data included or incorporated by
reference in the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any,
are based on or derived from sources that the Company reasonably
believes to be reliable and accurate, and the Company has obtained the
written consent to the use of such data from such sources to the
extent required;
(ll) neither the Company nor any of the Subsidiaries nor, to the Company's
knowledge, any employee or agent of the Company or any Subsidiary has
made any payment of funds of the Company or any Subsidiary or received
or retained any funds in violation of any law, rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act of
1977), which payment, receipt or retention of funds is of a character
required to be disclosed in the Registration Statement, any
Preliminary Prospectus or the Prospectus;
(mm) no Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or
from transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary of the Company, except as described in
the Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus and the Prospectus;
(nn) the sale of the Shares to be sold by the Selling Stockholders as
contemplated hereby will not cause any holder of any shares of capital
stock, securities convertible into or exchangeable or exercisable for
capital stock or options, warrants or other rights to purchase capital
stock or any other securities of the Company to have any right to
acquire any shares of preferred stock of the Company;
(oo) the Company has not received any notice from the NYSE regarding the
delisting of the Common Stock from the NYSE;
(pp) except pursuant to this Agreement, neither the Company nor any of the
Subsidiaries has incurred any liability for any finder's or broker's
fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby or by the Registration Statement;
(qq) neither the Company nor any of the Subsidiaries nor any of their
respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(rr) the Company has qualified to be taxed as a real estate investment
trust ("REIT") pursuant to Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code") commencing with its
initial taxable year that ended December 31, 1994, and its current and
proposed method of operation as described in the Registration
Statement, the Preliminary Prospectus, the Prospectus and the
Permitted Free Writing Prospectuses, if any, will enable the Company
to continue to meet the requirements for qualification and taxation as
a real estate investment trust under the Code for its taxable year
ending December 31, 2006 and thereafter; the Company currently intends
to continue to qualify as a real estate investment trust under the
Code this year and for all subsequent years, and the Company does not
know of any event that would cause or is likely to cause the Company
to fail to qualify as a real estate investment trust under the Code at
any time; and
(ss) to the Company's knowledge, there are no affiliations or associations
between (i) any member of the NASD and (ii) the Company or any of the
Company's officers, directors or 5% or greater security holders or any
beneficial owner of the Company's unregistered equity securities that
were acquired at any time on or after the 180th day immediately
preceding the date the Registration Statement was initially filed with
the Commission, except as disclosed in the Registration Statement
(excluding the exhibits thereto), the Preliminary Prospectuses and the
Prospectus.
In addition, any certificate signed by any officer of the Company or any of
the Subsidiaries and delivered to the Underwriter or counsel for the Underwriter
in connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
the Underwriter.
4. Representations and Warranties of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly with the other Selling Stockholders,
represents and warrants to the Underwriter that:
(a) all information with respect to such Selling Stockholder included in
the Registration Statement, any Preliminary Prospectus or the
Prospectus complied and will comply with all applicable provisions of
the Act; the Registration Statement, as it relates to the Selling
Stockholder, did not, as of the Effective Time, 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; at no time during the period that begins on the earlier of
the date of such Preliminary Prospectus and the date such Preliminary
Prospectus was filed with the Commission and ends at the time of
purchase did or will any Preliminary Prospectus, as then amended or
supplemented, as such Preliminary Prospectus relates to such Selling
Stockholder, include an 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, and at no time during such period did or will any
Preliminary Prospectus, as then amended or supplemented, together with
any combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, in each case as they relate to the
Selling Stockholder, include an 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; at no time during the period that begins on
the earlier of the date of the Prospectus and the date the Prospectus
is filed with the Commission and ends at the later of the time of
purchase, and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares did or will the Prospectus, as then
amended or supplemented, as the Prospectus relates to such Selling
Stockholder, include an 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; at no time during the period that begins on the date
of such Permitted Free Writing Prospectus and ends at the time of
purchase did or will any Permitted Free Writing Prospectus, as such
Permitted Free Writing Prospectus relates to such Selling Stockholder,
include an 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. For the purposes of this Section 4 (a), the only
information in the Registration Statement, the Preliminary Prospectus
or the Prospectus that relates to such Selling Stockholders is the
"Selling Stockholders" section therein;
(b) such Selling Stockholder has not, prior to the execution of this
Agreement, offered or sold any Shares by means of any "prospectus"
(within the meaning of the Act), or used any "prospectus" (within the
meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the then most recent Preliminary
Prospectus;
(c) such Selling Stockholder has been duly incorporated, organized or
formed, as the case may be, and is validly existing in good standing
under the laws of its jurisdiction of incorporation, organization or
formation, as the case may be, with full corporate or other power and
authority to execute and deliver this Agreement;
(d) such Selling Stockholder is duly qualified to do business as a foreign
corporation, limited liability company or limited partnership, as the
case may be, and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect;
(e) neither the execution, delivery and performance of this Agreement to
which such Selling Stockholder is a party nor the sale by such Selling
Stockholder of the Shares to be sold by such Selling Stockholder
pursuant to this Agreement nor the consummation of the transactions
contemplated hereby or thereby will conflict with, result in any
breach or violation of or constitute a default under (or constitute
any event which with notice, lapse of time or both would result in any
breach or violation of or constitute a default under): (i) if such
Selling Stockholder is not an individual, the charter or bylaws or
other organizational instruments of such Selling Stockholder, (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any of its properties
may be bound or affected, (iii) any federal, state, local or foreign
law, regulation or rule, (iv) or any rule or regulation of any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations of
the NYSE), or (v) any decree, judgment or order applicable to such
Selling Stockholder or any of its properties;
(f) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or of or with any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NYSE), is required in
connection with the sale of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement or the consummation by such
Selling Stockholder of the transactions contemplated hereby to which
such Selling Stockholder is a party other than (i) registration of the
Shares under the Act, which has been effected (or, with respect to any
registration statement to be filed hereunder pursuant to Rule 462(b)
under the Act, will be effected in accordance herewith), or (ii) any
necessary registration or qualification under the securities or blue
sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriter;
(g) neither such Selling Stockholder nor any of its affiliates has taken,
directly or indirectly, any action designed to, or which has
constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(h) there are no affiliations or associations between any member of the
NASD and such Selling Stockholder, except as disclosed in the
Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus and the Prospectus; none of the proceeds
received by such Selling Stockholder from the sale of the Shares to be
sold by such Selling Stockholder pursuant to this Agreement will be
paid to a member of the NASD or any affiliate of (or person
"associated with," as such terms are used in the Rules of the NASD)
such member;
(i) at the time of delivery of such Shares, such Selling Stockholder will
be the lawful owner of the number of Shares to be sold by such Selling
Stockholder pursuant to this Agreement and at the time of delivery of
such Shares, will have valid and marketable title to such Shares, and
upon delivery of and payment for such Shares, the Underwriter will
acquire valid and marketable title to such Shares free and clear of
any claim, lien, encumbrance, security interest, community property
right, restriction on transfer or other defect in title;
(j) such Selling Stockholder has and, at the time of delivery of the
Shares to be sold by such Selling Stockholder pursuant to this
Agreement, will have full legal right, power and capacity, and all
authorizations and approvals required by law (other than those imposed
by the Act and state securities or blue sky laws), to: (i) enter into
this Agreement, (ii) sell, assign, transfer and deliver the Shares to
be sold by such Selling Stockholder pursuant to this Agreement in the
manner provided in this Agreement, and (iii) make the representations,
warranties and agreements made by such Selling Stockholder herein;
(k) this Agreement has been duly executed and delivered by (or on behalf
of) such Selling Stockholder, and is a legal, valid and binding
agreement of such Selling Stockholder enforceable in accordance with
its terms;
(l) such Selling Stockholder has duly and irrevocably authorized each of
the Representatives of the Selling Stockholders (whether acting alone
or together), on behalf of such Selling Stockholder, to execute and
deliver this Agreement and any other documents necessary or desirable
in connection with the transactions contemplated hereby or thereby and
to deliver the Shares to be sold by such Selling Stockholder pursuant
to this Agreement and receive payment therefor pursuant hereto;
(m) the sale of the Shares to be sold by such Selling Stockholder pursuant
to this Agreement is not prompted by any information concerning the
Company or any Subsidiary which is not set forth in the Registration
Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus;
(n) at the time of purchase, all stock transfer or other taxes (other than
income taxes), if any, that are required to be paid in connection with
the sale and transfer of the Shares to be sold by such Selling
Stockholder to the Underwriter hereunder will be fully paid or
provided for by such Selling Stockholder, and all laws imposing such
taxes will be fully complied with;
(o) such Selling Stockholder is a United States person (as defined in the
Code); and
(p) such Selling Stockholder does not own any shares of Common Stock or
operating partnership units ("OP Units") of Home Properties, L.P., a
New York limited partnership (the "Operating Partnership"), securities
convertible into or exchangeable or exercisable for Common Stock or OP
Units or options, warrants or other rights to purchase Common Stock or
OP Units, other than the Shares.
In addition, any certificate signed by any Selling Stockholder (or, with
respect to any Selling Stockholder that is not an individual, any officer of
such Selling Stockholder or of any of such Selling Stockholder's subsidiaries)
or by any Representative of the Selling Stockholders and delivered to the
Underwriter or counsel for the Underwriter in connection with the offering of
the Shares shall be deemed to be a representation and warranty by such Selling
Stockholder, as to matters covered thereby, to the Underwriter.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states or other jurisdictions as
you may designate and to maintain such qualifications in effect so
long as you may request for the distribution of the Shares; provided,
however, that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the
laws of any such jurisdiction (except service of process with respect
to the offering and sale of the Shares); and to promptly advise you of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(b) to make available to the Underwriter in New York City, as soon as
practicable after this Agreement becomes effective, and thereafter
from time to time to furnish to the Underwriter, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after
the effective date of the Registration Statement) as the Underwriter
may reasonably request for the purposes contemplated by the Act; in
case the Underwriter is required to deliver (whether physically or
through compliance with Rule 172 under the Act or any similar rule),
in connection with the sale of the Shares, a prospectus after the
nine-month period referred to in Section 10(a)(3) of the Act, or after
the time a post-effective amendment to the Registration Statement is
required pursuant to Item 512(a) of Regulation S-K under the Act, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act or Item 512(a) of
Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is
necessary or appropriate for a post-effective amendment to the
Registration Statement, or a Registration Statement under Rule 462(b)
under the Act, to be filed with the Commission and become effective
before the Shares may be sold, the Company will use its best efforts
to cause such post-effective amendment or such Registration Statement
to be filed and become effective, and will pay any applicable fees in
accordance with the Act, as soon as possible; and the Company will
advise you promptly and, if requested by you, will confirm such advice
in writing when such post-effective amendment or such Registration
Statement has become effective;
(d) if, at any time during the period when a prospectus is required by the
Act to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, the Registration Statement shall cease to comply with
the requirements of the Act with respect to eligibility for the use of
the form on which the Registration Statement was filed with the
Commission or the Registration Statement shall cease to be an
"automatic shelf registration statement" (as defined in Rule 405 under
the Act) or the Company shall have received, from the Commission, a
notice, pursuant to Rule 401(g)(2), of objection to the use of the
form on which the Registration Statement was filed with the
Commission, to (i) promptly notify you, (ii) promptly file with the
Commission a new registration statement under the Act, relating to the
Shares, or a post-effective amendment to the Registration Statement,
which new registration statement or post-effective amendment shall
comply with the requirements of the Act and shall be in a form
satisfactory to you, (iii) use its best efforts to cause such new
registration statement or post-effective amendment to become effective
under the Act as soon as practicable, (iv) promptly notify you of such
effectiveness and (v) take all other action necessary or appropriate
to permit the public offering and sale of the Shares to continue as
contemplated in the Prospectus; all references herein to the
Registration Statement shall be deemed to include each such new
registration statement or post-effective amendment, if any;
(e) if the third anniversary of the initial effective date of the
Registration Statement (within the meaning of Rule 415(a)(5) under the
Act) shall occur at any time during the period when a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, to file with the Commission, prior
to such third anniversary, a new registration statement under the Act
relating to the Shares, which new registration statement shall comply
with the requirements of the Act (including, without limitation, Rule
415(a)(6) under the Act) and shall be in a form satisfactory to you;
such new registration statement shall constitute an "automatic shelf
registration statement" (as defined in Rule 405 under the Act);
provided, however, that if the Company is not then eligible to file an
"automatic shelf registration statement" (as defined in Rule 405 under
the Act), then such new registration statement need not constitute an
"automatic shelf registration statement" (as defined in Rule 405 under
the Act), but the Company shall use its best efforts to cause such new
registration statement to become effective under the Act as soon as
practicable, but in any event within 180 days after such third
anniversary and promptly notify you of such effectiveness; the Company
shall take all other action necessary or appropriate to permit the
public offering and sale of the Shares to continue as contemplated in
the Prospectus; all references herein to the Registration Statement
shall be deemed to include each such new registration statement, if
any;
(f) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for,
or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop
order suspending the effectiveness of the Registration Statement, to
use its best efforts to obtain the lifting or removal of such order as
soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement, any Preliminary Prospectus or
the Prospectus, and to provide you and Underwriter's counsel copies of
any such documents for review and comment a reasonable amount of time
prior to any proposed filing and to file no such amendment or
supplement to which you shall object in writing;
(g) subject to Section 5(f) hereof, to file promptly all reports and
documents and any preliminary or definitive proxy or information
statement required to be filed by the Company with the Commission in
order to comply with the Exchange Act for so long as a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares; and to provide you, for your
review and comment, with a copy of such reports and statements and
other documents to be filed by the Company pursuant to Section 13, 14
or 15(d) of the Exchange Act during such period a reasonable amount of
time prior to any proposed filing, and to file no such report,
statement or document to which you shall have objected in writing; and
to promptly notify you of such filing;
(h) to advise the Underwriter promptly of the happening of any event
within the period during which a prospectus is required by the Act to
be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Shares, which event could require the making of any change in the
Prospectus then being used so that the Prospectus would not include an
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 are made, not misleading, and to advise
the Underwriter promptly if, during such period, it shall become
necessary to amend or supplement the Prospectus to cause the
Prospectus to comply with the requirements of the Act, and, in each
case, during such time, subject to Section 5(f) hereof, to prepare and
furnish, at the Company's expense, to the Underwriter promptly such
amendments or supplements to such Prospectus as may be necessary to
reflect any such change or to effect such compliance;
(i) to make generally available to its security holders, and to deliver to
you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period but in any case not later than May 10, 2007;
(j) to furnish to you as early as practicable prior to the time of
purchase, but not later than two business days prior thereto, a copy
of the latest available unaudited interim and monthly consolidated
financial statements, if any, of the Company and the Subsidiaries
which have been read by the Company's independent registered public
accountants, as stated in their letter to be furnished pursuant to
Section 9(d) hereof;
(k) to comply with Rule 433(d) under the Act (without reliance on Rule
164(b) under the Act) and with Rule 433(g) under the Act;
(l) beginning on the date hereof and ending on, and including, the date
that is 45 days after the date of the Prospectus (the "Lock-Up
Period"), without the prior written consent of the Underwriter, not
to:
(i) issue, sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section
16 of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, with respect to, any Common
Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any
warrants or other rights to purchase, the foregoing,
(ii) file or cause to become effective a registration statement under
the Act relating to the offer and sale of any Common Stock or any
other securities of the Company that are substantially similar to
Common Stock, or any securities convertible into or exchangeable
or exercisable for, or any warrants or other rights to purchase,
the foregoing,
(iii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of
ownership of Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any
warrants or other rights to purchase, the foregoing, whether any
such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise, or
(iv) publicly announce an intention to effect any transaction
specified in clause (i), (ii) or (iii),
except, in each case, for
(A) the registration of the offer and sale of the Shares as
contemplated by this Agreement,
(B) issuances of Common Stock upon the exercise of options
or warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the
Prospectus,
(C) the issuance of employee stock options not exercisable
during the Lock-Up Period pursuant to stock option
plans described in the Registration Statement, each
Preliminary Prospectus and the Prospectus or the
Incorporated Documents;
(D) issuances of Common Stock, or options to acquire such
Common Stock, pursuant to the Company's Stock Purchase
Plan as described in the described in the Registration
Statement, each Preliminary Prospectus and the
Prospectus or the Incorporated Documents;
(E) issuances of Common Stock or units in the Operating
Partnership exchangeable, at the option of the Company,
for Common Stock in connection with the acquisition of
any interests in any entity or property;
(F) issuance of Common Stock in exchange for units in the
Operating Partnership; and
(G) registration statements with respect to the offer and
sale or secondary offering of Common Stock issued as
described in clauses (E) and (F) above;
provided, however, that if:
(x) during the period that begins on the date that is
fifteen (15) calendar days plus three (3) business days
before the last day of the Lock-Up Period and ends on
the last day of the Lock-Up Period, the Company issues
an earnings release or material news or a material
event relating to the Company occurs; or
(y) prior to the expiration of the Lock-Up Period,
the Company announces that it will release earnings results
during the sixteen (16) day period beginning on the last day
of the Lock-Up Period, then the restrictions imposed by this
Section 5(m) shall continue to apply until the expiration of
the date that is fifteen (15) calendar days plus three (3)
business days after the date on which the issuance of the
earnings release or the material news or material event
occurs;
(m) prior to the time of purchase, to issue no press release or other
communication directly or indirectly and hold no press
conferences with respect to the Company or any Subsidiary, the
financial condition, results of operations, business, properties,
assets, or liabilities of the Company or any Subsidiary, or the
offering of the Shares, without your prior reasonable consent;
(n) not, at any time at or after the execution of this Agreement, to,
directly or indirectly, offer or sell any Shares by means of any
"prospectus" (within the meaning of the Act), or use any
"prospectus" (within the meaning of the Act) in connection with
the offer or sale of the Shares, in each case other than the
Prospectus;
(o) not to, and to cause the Subsidiaries not to, take, directly or
indirectly, any action designed, or which will constitute, or has
constituted, or might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares;
(p) to use its best efforts to cause the Shares to be listed on the
NYSE and to maintain the listing of the Common Stock, including
the Shares, on the NYSE;
(q) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the
Common Stock; and
(r) to use its best efforts to continue to qualify as a REIT under
Sections 856 through 860 of the Code.
6. Certain Covenants of the Selling Stockholders. Each Selling Stockholder
hereby agrees:
(a) not, at any time at or after the execution of this Agreement, to
offer or sell any Shares by means of any "prospectus" (within the
meaning of the Act), or use any "prospectus" (within the meaning
of the Act) in connection with the offer or sale of the Shares,
in each case other than the Prospectus;
(b) not to take, directly or indirectly, any action designed, or
which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(c) to pay or cause to be paid all taxes, if any, on the transfer and
sale of the Shares being sold by such Selling Stockholder; and
(d) to advise you promptly, and if requested by you, confirm such
advice in writing, so long as a prospectus is required by the Act
to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, of (i) any change in information in the
Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
relating to such Selling Stockholder or (ii) any new material
information relating to the Company or relating to any matter
stated in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, which comes to the attention of such
Selling Stockholder.
7. Covenant to Pay Costs. The Company agrees to pay all costs, expenses,
fees and taxes in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus, each
Permitted Free Writing Prospectus and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriter and to
dealers (including costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Shares including any stock or transfer taxes and stamp
or similar duties payable upon the sale, issuance or delivery of the Shares to
the Underwriter, (iii) the producing, word processing and/or printing of this
Agreement, any dealer agreements and any closing documents (including
compilations thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriter and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state or foreign laws and the determination
of their eligibility for investment under state or foreign law (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriter) and the printing and furnishing of copies of any blue sky surveys
or legal investment surveys to the Underwriter and to dealers, (v) any listing
of the Shares on any securities exchange or qualification of the Shares for
quotation on the NYSE and any registration thereof under the Exchange Act, (vi)
the fees and disbursements of any transfer agent or registrar for the Shares,
(vii) the costs and expenses of the Company and such Selling Stockholder
relating to presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Shares to prospective investors and
the Underwriter's sales forces, and (viii) the performance of the Company's and
such Selling Stockholder's other obligations hereunder.
8. Reimbursement of Underwriter's Expenses. If the Selling Stockholders
fail to deliver the Shares for any reason, the Selling Stockholders, jointly and
severally, shall reimburse the Underwriter for all the fees and disbursements of
its counsel, and for its reasonable out-of-pocket expenses.
9. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the respective
representations and warranties on the part of the Company and each Selling
Stockholder on the date hereof, and at the time of purchase, the performance by
the Company and each Selling Stockholder of each of their respective obligations
hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase an opinion of
▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the
Underwriter, and dated the time of purchase, and in form and substance
satisfactory to the Underwriter, in the form set forth in Exhibit B
hereto.
(b) The Company shall furnish to you at the time of purchase an opinion of
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel and Executive Vice President of the
Company, addressed to the Underwriter, and dated the time of purchase,
and in form and substance satisfactory to the Underwriter, in the form
set forth in Exhibit C hereto.
(c) The Selling Stockholders shall furnish to you at the time of purchase
an opinion of Jaffe, Raitt, Heuer & ▇▇▇▇▇, P.C., counsel for the
Selling Stockholders, addressed to the Underwriter, and dated the time
of purchase, and in form and substance satisfactory to the
Underwriter, in the form set forth in Exhibit D hereto.
(d) You shall have received from PricewaterhouseCoopers LLP, letters
dated, respectively, the date of this Agreement, the date of the
Prospectus, and the time of purchase, and addressed to the Underwriter
in the forms satisfactory to the Underwriter, which letters shall
cover, without limitation, the various financial disclosures contained
in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any.
(e) You shall have received at the time of purchase the favorable opinion
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriter, dated the time of purchase, in form and substance
reasonably satisfactory to the Underwriter.
(f) No Prospectus or amendment or supplement to the Registration Statement
or the Prospectus shall have been filed to which you shall have
objected in writing.
(g) The Registration Statement and any registration statement required to
be filed, prior to the sale of the Shares, under the Act pursuant to
Rule 462(b) shall have been filed and shall have become effective
under the Act. The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:30
P.M., New York City time, on the second full business day after the
date of this Agreement (or such earlier time as may be required under
the Act).
(h) Prior to and at the time of purchase, (i) no stop order with respect
to the effectiveness of the Registration Statement shall have been
issued under the Act or proceedings initiated under Section 8(d) or
8(e) of the Act; (ii) the Registration Statement and all amendments
thereto shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (iii) none of
the Preliminary Prospectuses or the Prospectus, and no amendment or
supplement thereto, shall include an 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
are made, not misleading; (iv) no Disclosure Package, and no amendment
or supplement thereto, shall include an 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
are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an 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
are made, not misleading.
(i) The Company will, at the time of purchase, deliver to you a
certificate of its Chief Executive Officer and its Executive Vice
President and General Counsel, dated the time of purchase, in the form
attached as Exhibit E hereto.
(j) The Selling Stockholders will, at the time of purchase, deliver to you
a certificate signed by a Representative of the Selling Stockholders,
in the form attached as Exhibit F hereto.
(k) You shall have received each of the signed Lock-Up Agreements referred
to in Section 3(u) hereof, and each such Lock-Up Agreement shall be in
full force and effect at the time of purchase.
(l) The Company and each Selling Stockholder shall have furnished to you
such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as of the time of purchase, as you may reasonably request.
(m) The Shares shall have been approved for listing on the NYSE, subject
only to notice of issuance at or prior to the time of purchase.
(n) The NASD shall not have raised any objection with respect to the
fairness or reasonableness of the underwriting, or other arrangements
of the transactions, contemplated hereby.
(o) Each Selling Stockholder shall furnish to you a certification of such
shareholder's non-foreign status in accordance with Treasury
Regulationsss.1.1445-2(b)(2) in the form attached hereto as Exhibit G.
10. Effective Date of Agreement; Termination. This Agreement shall become
effective when the parties hereto have executed and delivered this Agreement.
The obligations of the Underwriter hereunder shall be subject to
termination in the absolute discretion of the Underwriter, if (1) since the time
of execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, there has been any change or any development involving a prospective change
in the business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole, the effect of
which change or development is, in the sole judgment of the Underwriter, so
material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (2) since the
time of execution of this Agreement, there shall have occurred: (A) a suspension
or material limitation in trading in securities generally on the NYSE, the
American Stock Exchange or the NASDAQ; (B) a suspension or material limitation
in trading in the Company's securities on the NYSE; (C) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (D) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (E) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (D) or (E), in the sole judgment of the Underwriter, makes
it impractical or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or (3) since the time of execution
of this Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of: (A) any intended or potential
downgrading or (B) any watch, review or possible change that does not indicate
an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company or any Subsidiary by any "nationally recognized
statistical rating organization," as that term is defined in Rule 436(g)(2)
under the Act.
If the Underwriter elects to terminate this Agreement as provided in this
Section 10, the Company and the Selling Stockholders shall be notified promptly
in writing.
If the sale to the Underwriter of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriter for any reason permitted under
this Agreement, or if such sale is not carried out because the Company or any
Selling Stockholder, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company and the Selling Stockholders shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 7, 8 and 11 hereof, and the Underwriter shall be under no
obligation or liability to the Company or any Selling Stockholder under this
Agreement (except to the extent provided in Section 11 hereof).
11. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless the
Underwriter, its partners, directors and officers, and any person who
controls the Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and the successors and assigns of
all of the foregoing persons, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Underwriter or any
such person may incur under the Act, the Exchange Act, the common law
or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or arises out of
or is based upon any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning the Underwriter
furnished in writing by you to the Company expressly for use in, the
Registration Statement or arises out of or is based upon any omission
or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was
not contained in such information and which material fact was required
to be stated in such Registration Statement or was necessary to make
such information not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus
(the term Prospectus for the purpose of this Section 11 being deemed
to include any Preliminary Prospectus, the Prospectus and any
amendments or supplements to the foregoing), in any Permitted Free
Writing Prospectus, in any "issuer information" (as defined in Rule
433 under the Act) of the Company, which "issuer information" is
required to be, or is, filed with the Commission, or in any Prospectus
together with any combination of one or more of the Permitted Free
Writing Prospectuses, if any, or arises out of or is based upon any
omission or alleged omission to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, with
respect to such Prospectus or Permitted Free Writing Prospectus,
insofar as any such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with
information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for
use in, such Prospectus or Permitted Free Writing Prospectus or arises
out of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus
in connection with such information, which material fact was not
contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the
circumstances under which they were made, not misleading.
(b) Each Selling Stockholder agrees to indemnify, defend and hold harmless
the Underwriter, its partners, directors and officers, and any person
who controls the Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or
any such person may incur under the Act, the Exchange Act, the common
law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company), as such
Registration Statement relates to such Selling Stockholder, or arises
out of or is based upon any omission or alleged omission to state a
material fact that relates to such Selling Stockholder required to be
stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of
a material fact included in any Prospectus, in any Permitted Free
Writing Prospectus or in any Prospectus together with any combination
of one or more of the Permitted Free Writing Prospectuses, if any, in
each case as such document(s) relate to such Selling Stockholder, or
arises out of or is based upon any omission or alleged omission to
state a material fact that relates to such Selling Stockholder
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Notwithstanding anything herein to the contrary, in no event shall the
liability of any Selling Stockholder to provide indemnity pursuant to
this Section 11(b), or contribution pursuant to Section 11(f), exceed
an amount equal to the aggregate initial public offering price of the
Shares sold by such Selling Stockholder to the Underwriter pursuant
hereto. For the purposes of this Section 11 (b), the only information
in the Registration Statement, the Preliminary Prospectus or the
Prospectus that relates to the Selling Stockholders is the "Selling
Stockholders" section therein.
(c) The Underwriter agrees to indemnify, defend and hold harmless the
Company, its directors and officers, each Selling Stockholder" and any
person who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, such Selling
Stockholder or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning the
Underwriter furnished in writing by you to the Company expressly for
use in, the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company), or
arises out of or is based upon any omission or alleged omission to
state a material fact in such Registration Statement in connection
with such information, which material fact was not contained in such
information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not
misleading or (ii) any untrue statement or alleged untrue statement of
a material fact contained in, and in conformity with information
concerning the Underwriter furnished in writing by you to the Company
expressly for use in, a Prospectus or a Permitted Free Writing
Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Permitted Free
Writing Prospectus in connection with such information, which material
fact was not contained in such information and which material fact was
necessary in order to make the statements in such information, in the
light of the circumstances under which they were made, not misleading.
(d) If any action, suit or proceeding (each, a "Proceeding") is brought
against a person (an "indemnified party") in respect of which
indemnity may be sought against the Company, a Selling Stockholder or
the Underwriter (as applicable, the "indemnifying party") pursuant to
subsection (a), (b) or (c), respectively, of this Section 11, such
indemnified party shall promptly notify such indemnifying party in
writing of the institution of such Proceeding and such indemnifying
party shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that
the omission to so notify such indemnifying party shall not relieve
such indemnifying party from any liability which such indemnifying
party may have to any indemnified party or otherwise, except to the
extent that such indemnifying party is actually materially prejudiced
thereby. The indemnified party or parties shall have the right to
employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party (or, in the case such
indemnifying party is a Selling Stockholder, by such Selling
Stockholder or by a Representative of the Selling Stockholders) in
connection with the defense of such Proceeding or the indemnifying
party shall not have, within a reasonable period of time in light of
the circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different
from, additional to or in conflict with those available to such
indemnifying party (in which case such indemnifying party shall not
have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such indemnifying party and paid as
incurred (it being understood, however, that such indemnifying party
shall not be liable for the expenses of more than one separate counsel
(in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding).
The indemnifying party shall not be liable for any settlement of any
Proceeding for which the indemnified party is entitled to indemnification under
subsection (a), (b) or (c) of this Section 11 effected without its written
consent (or, in the case such indemnifying party is a Selling Stockholder,
without the written consent of either such Selling Stockholder or a
Representative of the Selling Stockholders) but, if settled with its written
consent (or, in the case such indemnifying party is a Selling Stockholder, with
the written consent of such Selling Stockholder or of a Representative of the
Selling Stockholders), such indemnifying party agrees to indemnify and hold
harmless the indemnified party or parties from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party (or, where
such indemnifying party is a Selling Stockholder, requested such Selling
Stockholder or any Representative of the Selling Stockholders) to reimburse the
indemnified party for fees and expenses of counsel when such payment would be
required by the second sentence of this Section 11(d), then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding for
which the indemnified party is entitled to indemnification under subsection (a),
(b) or (c) of this Section 11, as applicable, effected without its written
consent if:
(i) such settlement is entered into more than 90 business days after
receipt by such indemnifying party (or, where such indemnifying party is a
Selling Stockholder, receipt by such Selling Stockholder or by any
Representative of the Selling Stockholders) of the written request for
reimbursement ("Reimbursement Request"), together with reasonable
supporting documentation for the expenses claimed in the request for
reimbursement,
(ii) such indemnified party shall have given the indemnifying party
(or, where such indemnifying party is the Selling Stockholder, given such
Selling Stockholder or any Representative of the Selling Stockholders) at
least 60 days' prior notice of its intention to settle,
(iii) such indemnifying party shall have defaulted under this Section
11(d) in reimbursing the indemnified party in accordance with such request
(a "Reimbursement Default"), and
(iv) such indemnifying party shall have failed cure its Reimbursement
Default by a date that is at least 10 days preceding the date of such
settlement, provided, however, that if the indemnifying party has given the
indemnified party written notice within 15 days of the date of the
Reimbursement Request that indemnifying party in good faith reasonably
disputes and refuses to reimburse all or any portion of the expenses
("Unreimbursed Expenses") claimed in such Reimbursement Request, then the
indemnifying party's failure to pay such Unreimbursed Expenses shall not be
deemed to constitute a Reimbursement Default until it is finally determined
that the indemnified party is entitled to be reimbursed for the
Unreimbursed Expenses by such indemnifying party.
If it is finally determined that the indemnified party was entitled to be
reimbursed for the Unreimburesed Expenses by such indemnifying party, then the
indemnified party shall be entitled to recover from such indemnifying party, in
addition to any other amounts the indemnifying party is liable to pay to such
indemnified party, (1) the full amount of the Unreimbursed Expenses, (2)
interest at the then prevailing prime interest lending rate on the amount of the
Unreimbursed Expenses since the date of the applicable Reimbursement Notice, and
(c) all other fees and expenses, including, without limitation, attorney's fees,
incurred by such indemnified party to obtain final determination that the
indemnified party was entitled to be reimbursed for the Unreimbursed Expenses by
such indemnifying party.
(e) No indemnifying party shall, without the prior written consent of
the indemnified party (or, where such indemnified party is a Selling
Stockholder, the prior written consent of such Selling Stockholder or of
any Representative of the Selling Stockholders), effect any settlement of
any pending or threatened Proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such Proceeding and does not include
an admission of fault or culpability or a failure to act by or on behalf of
such indemnified party.
(f) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a), (b) and (c) of
this Section 11 or insufficient to hold an indemnified party harmless in
respect of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriter on the other
hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and of the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriter on the other
shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and the Selling
Stockholders, and the total underwriting discounts and commissions received
by the Underwriter, bear to the aggregate public offering price of the
Shares. The relative fault of the Company and the Selling Stockholders on
the one hand and of the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates
to information supplied by the Company or the Selling Stockholders or by
the Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(g) The Company, the Selling Stockholders and the Underwriter agree
that it would not be just and equitable if contribution pursuant to this
Section 11 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in subsection (f) above. Notwithstanding the provisions of this
Section 11, the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by the Underwriter and distributed to the public were offered
to the public exceeds the amount of any damage which such Underwriter has
otherwise been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(h) The indemnity and contribution agreements contained in this
Section 11 and the covenants, warranties and representations of the Company
and the Selling Stockholders contained in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf
of the Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who controls
the Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, or by or on behalf of the Company or the Selling
Stockholders, their respective directors or officers or any person who
controls the Company or any Selling Stockholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive
any termination of this Agreement or delivery of the Shares to be sold by
the Selling Stockholders pursuant hereto. The Company, the Selling
Stockholders and the Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company
or a Selling Stockholder, against any of their officers or directors in
connection with the issuance and sale of the Shares, or in connection with
the Registration Statement, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus.
12. Information Furnished by the Underwriter. The statements set forth in
the fourth, sixth and seventh paragraphs, and in the section entitled "Price
stabilization, short positions," under the caption "Underwriting" in the
Prospectus, insofar as such statements relate to (a) electronic delivery of
prospectuses, (b) the amount of selling concession and reallowance and (c) price
stabilization and short positions, constitute the only information furnished by
or on behalf of the Underwriter, as such information is referred to in Sections
3 and 11 hereof.
13. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram or facsimile and, if
to the Underwriter, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Director,
President, Chief Executive Officer, and, if to any Selling Stockholder, shall be
sufficient in all respects if delivered or sent to ▇▇▇▇▇▇▇ ▇. Lewiston at ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇).
14. Governing Law; Construction. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
15. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company and the
Selling Stockholders each consents to the jurisdiction of such courts and
personal service with respect thereto. The Underwriter and the Company and each
Selling Stockholder (on its behalf and, in the case such Selling Stockholder is
not an individual, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) each waive all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company
and the Selling Stockholders each agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court shall be conclusive
and binding upon the Company and each Selling Stockholder and may be enforced in
any other courts to the jurisdiction of which the Company or any Selling
Stockholder is or may be subject, by suit upon such judgment.
16. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriter and the Company and the Selling
Stockholders and to the extent provided in Section 11 hereof the controlling
persons, partners, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from the Underwriter) shall acquire
or have any right under or by virtue of this Agreement.
17. No Fiduciary Relationship. The Company and the Selling Stockholders
each hereby acknowledge that the Underwriter is acting solely as underwriter in
connection with the purchase and sale of the Company's securities. The Company
and the Selling Stockholders each further acknowledge that the Underwriter is
acting pursuant to a contractual relationship created solely by this Agreement
entered into on an arm's length basis, and in no event do the parties intend
that the Underwriter act or be responsible as a fiduciary to the Company or any
Selling Stockholder, their respective management, stockholders or creditors or
any other person in connection with any activity that the Underwriter may
undertake or have undertaken in furtherance of the purchase and sale of the
Company's securities, either before or after the date hereof. The Underwriter
hereby expressly disclaims any fiduciary or similar obligations to the Company
or any Selling Stockholder, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company and the Selling Stockholders each hereby confirm their
understanding and agreement to that effect. The Company, the Selling
Stockholders and the Underwriter agree that they are each responsible for making
their own independent judgments with respect to any such transactions and that
any opinions or views expressed by the Underwriter to the Company or any Selling
Stockholder regarding such transactions, including, but not limited to, any
opinions or views with respect to the price or market for the Company's
securities, do not constitute advice or recommendations to the Company or any
Selling Stockholder. The Company and the Selling Stockholders each hereby waive
and release, to the fullest extent permitted by law, any claims that the Company
or any Selling Stockholder may have against the Underwriter with respect to any
breach or alleged breach of any fiduciary or similar duty to the Company or any
Selling Stockholder in connection with the transactions contemplated by this
Agreement or any matters leading up to such transactions.
18. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
19. Successors and Assigns. This Agreement shall be binding upon the
Underwriter and the Company and the Selling Stockholders and their successors
and assigns and any successor or assign of any substantial portion of the
Company's, any Selling Stockholder's and the Underwriter's respective businesses
and/or assets.
20. Miscellaneous. The Underwriter, an indirect, wholly owned subsidiary of
UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because the Underwriter is a separately
incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by the
Underwriter are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise an
obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Pages Follow]
If the foregoing correctly sets forth the understanding among the Company,
the Selling Stockholders and the Underwriter, please so indicate in the space
provided below for that purpose, whereupon this Agreement and your acceptance
shall constitute a binding agreement among the Company, the Selling Stockholders
and the Underwriter.
Very truly yours,
HOME PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
THE SELLING STOCKHOLDERS NAMED IN SCHEDULE B HERETO
By: /s/ ▇▇▇▇▇▇▇ ▇. Lewiston
Name: ▇▇▇▇▇▇▇ ▇. Lewiston
Title: Managing General Partner of each of the Selling Stockholders
identified as a Selling Stockholder in Schedule B hereto
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
Accepted and agreed to as of the date first above written
UBS SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
SCHEDULE A
PERMITTED FREE WRITING PROSPECTUSES
None.
SCHEDULE B
Number of
Shares
Selling Stockholders
B&L Realty Investments Limited Partnership.............. 33,560
▇▇▇▇▇▇/Lewiston Associates Limited Partnership.......... 1,076,594
Big Beaver-Rochester Properties Limited Partnership..... 528,348
Century Realty Investment Company Limited Partnership... 99,195
Greentrees Apartments Limited Partnership............... 275,905
▇▇▇▇▇▇▇▇-Moravian Company Limited Partnership........... 376,288
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Heights Company Limited Partnership.. ▇▇▇,▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Apartments Limited Partnership....... 155,623
Woodland Garden Apartments Limited Partnership.......... 319,860
Total.................................................---------------
2,969,914
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