Regency Centers Corporation
3,600,000 Shares*
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
August 12, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000, and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000,
As Representatives of the several Underwriters,
Ladies and Gentlemen:
Regency Centers Corporation, a Florida corporation (the "Company"),
which is the general partner of Regency Centers, L.P., a Delaware limited
partnership (the "Partnership"), proposes to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 3,600,000 shares of Common
Stock, $0.01 par value ("Common Stock") of the Company (said shares to be issued
and sold by the Company being hereinafter called the "Underwritten Securities").
The Company also proposes to grant to the Underwriters an option to purchase up
to 540,000 additional shares of Common Stock (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities"). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any reference
herein to the Registration Statement, a Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12
-----------------------------
* Plus an option to purchase from Regency Centers Corporation up to
540,000 additional shares.
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of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof.
1. Representations and Warranties. (a) The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333-37911) on Form S-3, including a related preliminary prospectus,
for registration under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission one of the following: either (1)
prior to the Effective Date of such registration statement, a further amendment
to such registration statement (including the form of final prospectus), or (2)
after the Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the Company
has included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and the
rules thereunder to be included in such registration statement and the
Prospectus as of the Effective Date. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A Information,
together with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein (excluding Exchange Act filings
incorporated therein by reference).
(b) On the Effective Date, the Registration Statement (and any
amendment or supplement thereto) did or will, and when the Prospectus is first
filed (if required) in accordance with Rule 424(b) and on the Closing Date (as
defined herein) and on any date on which Option Securities are purchased, if
such date is not the Closing Date (a "settlement date"), the Prospectus (and any
amendments or supplements thereto) will, comply in all material respects with
the applicable requirements of the Act and the Exchange Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement (and any amendment or supplement thereto)
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did not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date of
ny filing pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Prospectus (together with any amendment or supplement thereto) will
not, include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties in this paragraph (ii)
as to the information contained in or omitted from the Registration Statement or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with the information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Prospectus (or any amendment or supplement
thereto); and no order preventing or suspending the use of the Registration
Statement has been issued by the Commission;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with the
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use in the Prospectus as amended or supplemented;
(d) Neither the Company nor any of its subsidiaries, including the
Partnership, has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented; and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock or
partnership interests of the Company or any of its subsidiaries (including the
Partnership) (other than issuances of capital stock or partnership interests in
connection
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with employee benefit plans, dividend reinvestment plans, the exercise of
options, the exchange of Partnership units and the payment of earn-outs pursuant
to contractual commitments) or in the partners' capital of the Partnership or
any of its subsidiaries, any change in mortgage loans payable or long-term debt
of the Company or any of its subsidiaries (including the Partnership) in excess
of $20,000,000 or in the mortgage loans payable or long-term debt of the
Partnership or any of its subsidiaries or any material adverse change in excess
of $20,000,000, or any development involving a prospective material adverse
change, in or affecting the general affairs, management,
financial position, stockholders' equity, partners' capital or results of
operations of the Company and its subsidiaries (including the Partnership),
otherwise than as set forth or contemplated in the Prospectus;
(e) The Company and its subsidiaries (including the Partnership)
have good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries (including the Partnership); and any real property
and buildings held under lease by the Company and its subsidiaries (including
the Partnership) are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
subsidiaries (including the Partnership);
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Florida, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, as amended or supplemented, and has
been duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction; the Partnership has
been duly organized and is validly existing in good standing under the laws of
the State of Delaware, with power and authority to own its properties and
conduct its business as described in the Prospectus, as amended or supplemented,
and has been duly qualified as a foreign partnership for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and each
subsidiary of the Company has been duly incorporated or organized and is validly
existing as a corporation or other entity in good standing under the laws of its
jurisdiction of incorporation or organization;
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(g) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non
assessable; the capital stock of the Company conforms in all material respects
to the description thereof in the Prospectus, as amended or supplemented; and,
except as set forth on Exhibit A, all of the issued shares of capital stock or
other equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non assessable and (except as
set forth on Exhibit A and directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims; all of the issued partnership interests of the Partnership have been
duly and validly authorized and issued and are fully paid and non assessable;
(h) The Securities have been duly and validly authorized and, when
issued and delivered and paid for by the underwriters pursuant to this
Agreement, will be fully paid and non-assessable; and the Securities conform to
the description thereof contained in the Registration Statement and the
Prospectus, as amended or supplemented;
(i) This Agreement has been duly authorized, executed and delivered
by the Company;
(j) None of the transactions contemplated by this Agreement will
violate or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation, Regulations T,
U, and X of the Board of Governors of the Federal Reserve System;
(k) Prior to the date hereof, neither the Company nor any of its
affiliates (including the Partnership) has taken any action which is designed to
or which has constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company in
connection with the offering of the Securities;
(l) The execution and delivery by the Company of this Agreement, the
compliance by the Company with all of the provisions hereof and the consummation
of the transactions by the Company herein contemplated, and, to its knowledge,
the sale of the Securities and the compliance by the Company with all of the
provisions of the Securities and the consummation of the transactions by the
parties other than the Company herein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, (i) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries (including the Partnership) is a party or by which the Company or
any of its subsidiaries (including the Partnership) is bound or to which any of
the property or assets of the Company or any of its subsidiaries (including the
Partnership) is subject, (ii) the provisions of the Articles of Incorporation or
By-laws of the Company, the Certificate of Limited Partnership or partnership
agreement of the Partnership or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its
6
subsidiaries (including the Partnership) or any of their properties other than,
in the case of clauses (i) and (iii), such breaches or violation which, if
determined adversely to the Company, would not reasonably be expected to have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole or on the consummation of the transactions
contemplated herein; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement, except such as
have been, or will have been prior to the Closing Date (as defined in Section 3
hereof), obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws or the rules of the National Association of Securities Dealers
Inc. or the New York Stock Exchange, Inc. in connection with the purchase and
distribution of the Securities by the Underwriters;
(m) Neither the Company nor any of its subsidiaries (including the
Partnership) is in violation of its Articles of Incorporation, By-laws,
Certificate of Limited Partnership or partnership agreement or in default in the
performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(n) The statements set forth in the Registration Statement and the
Prospectus under the captions "Capital Stock", "Description of Common Stock",
"Description of Preferred Stock", "Description of Depositary Shares", "Federal
Income Tax Considerations" and "Plan of Distribution" and the statements set
forth in the Prospectus Supplement under caption "Underwriting" (other than the
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives) are, insofar as such statements
constitute a summary of the terms of the Securities and the laws and documents
referred to therein, accurate and complete in all material respects;
(o) Other than as set forth in the Prospectus, as amended or
supplemented, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries (including the Partnership) is a party or
of which any property of the Company or any of its subsidiaries (including the
Partnership) is the subject which, if determined adversely to the Company or any
of its subsidiaries (including the Partnership), would individually or in the
aggregate have a material adverse effect on the current or future financial
position, stockholders' equity, partners' capital or results of operations of
the Company and its subsidiaries (including the Partnership); and, to the best
of the Company's knowledge and the Partnership's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
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(p) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code, for each of
the fiscal years from its inception through the most recently completed fiscal
year and the Company's present and contemplated organization, ownership, method
of operation, assets and income, taking into account the consummation of the
transactions contemplated herein, are such that the Company is in a position
under present law to so qualify for the current fiscal year and in the future;
(q) Neither the Company nor the Partnership has knowledge of (i) the
presence of any hazardous substances, hazardous materials, toxic substances or
waste materials (collectively, "Hazardous Materials") on any of the properties
owned by it in violation of law or in excess of regulatory action levels or (ii)
any unlawful spills, releases, discharges or disposal of Hazardous Materials
that have occurred or are presently occurring on or off such properties as a
result of any construction on or operation and use of such properties, which
presence or occurrence would materially adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company or the Partnership; and in connection with the construction on or
operation and use of the properties owned by the Company and the Partnership,
neither has any knowledge of any material failure to comply with all applicable
local, state and federal environmental laws, regulations, agency requirements,
ordinances and administrative and judicial orders;
(r) Neither the Company nor the Partnership is, and after giving
effect to the offering and sale of the Securities, will be an "investment
company", or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act; and
(s) KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries and the Partnership and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$34.3418 per share, the amount of the Underwritten Securities set forth opposite
such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to
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the several Underwriters to purchase, severally and not jointly, up to 540,000
Option Securities (the "Over-allotment Option"). Said Over-allotment Option may
be exercised in whole or in part at any time on or before the 30th day after the
date of the Prospectus (the "30-Day Period") upon written or telegraphic notice
by the Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the option
and the settlement date. The number of shares of the Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number
of shares of the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to eliminate any
fractional shares. The purchase price per share for the Option Securities shall
be the same purchase price per share as the Underwriters shall pay for the
Underwritten Securities, less an amount equal to the distributions payable per
share by the Company during the 30-Day Period on the Underwritten Securities to
the extent such distributions are not payable on the Option Securities purchased
by the Underwriters pursuant to their exercise of the Over-allotment Option.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
August 18, 2003, or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
The Company will pay all applicable state transfer taxes, if any,
involved in the transfer to the several Underwriters of the Securities to
be purchased by them from the Company and the respective Underwriters will pay
any additional stock transfer taxes involved in further transfers by them.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives, at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the
9
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the settlement date for
the Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement (excluding
filings under the Exchange Act incorporated by reference into the Registration
Statement) or amendment or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence,
if the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b), the
Company will cause the Prospectus, properly completed, and any amendment or
supplement thereto to be filed in a form approved by the Representatives with
the Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (1) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (2) when the Prospectus, and any
amendment or supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any amendment or supplement to the
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (6) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction
or the institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any
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such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend the Registration
Statement or amend or supplement the Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will (1)
notify the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any amended or supplemented Prospectus to
you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any amendment or
supplement thereto as the Representatives may reasonably request. The Company
will pay the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will pay any fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering; provided that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will not, and will use its good faith efforts to
cause any other holder of Common Stock not to, without the prior written consent
of the Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash
11
settlement or otherwise) by the Company or any subsidiary of the Company or any
person in privity with the Company or any subsidiary of the Company), directly
or indirectly, under any registration statement filed with the Commission or
prospectus supplement relating to an existing shelf registration filed with the
Commission (other than pursuant to registration statements in effect on the date
hereof for the benefit of selling shareholders thereunder), any other shares of
Common Stock or any securities convertible into, or exercisable, or exchangeable
for, shares of Common Stock or publicly announce an intention to effect any such
transaction, for a period of 60 days after the date of the Underwriting
Agreement; provided, however, that the Company may issue or sell Common Stock
(i) pursuant to any employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the Execution Time, (ii) upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time, (iii) upon the redemption of limited partnership units of any
subsidiary of the Company outstanding at the Execution Time, (iv) in connection
with the transactions contemplated in this Agreement, (v) in connection with the
transactions contemplated by the Underwriting Agreement, dated June 18, 2003,
among the Company, the selling stockholder named therein and the representatives
of the underwriters named therein, including the forward stock purchase and
stock loan agreements contemplated thereby, and (v) pursuant to an offering by
Citigroup Global Markets Holdings Inc. of debt securities exchangeable into
Common Stock and related forward purchase contracts and stock loan agreements.
(g) The Company will comply with all applicable securities and
other applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act of 2002, and to use its reasonable best efforts to cause the
Company's directors and officers, in their capacities as such, to comply with
such laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act of 2002.
(h) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i) 6:00
PM New York City
12
time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Prospectus, or any amendment or supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any such
amendment or supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx & Xxxxxxx,
counsel for the Company, to have furnished to the Representatives their opinion,
dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and its subsidiaries, including the
Partnership, has been duly incorporated and is validly existing as a
corporation or other organization in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification and is
subject to no material liability or disability by reason of the failure
to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or
partnership interests of each subsidiary of the Company have been duly
and validly authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth on Exhibit A or in the Prospectus,
as amended or supplemented, all outstanding shares of capital stock or
partnership interests of such subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear of
any perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interest, claim, lien or
encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms
in all material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities are
duly listed, and admitted and
13
authorized for trading, on the New York Stock Exchange; the
certificates for the Securities are in valid and sufficient form; the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Securities
arising by operation of law or the Company's articles of incorporation
or By-laws, or, to the knowledge of such counsel, under any agreement
by which the Company is bound; and, except as set forth in the
Prospectus, as amended or supplemented, to the knowledge of such
counsel, no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document relating to the Company or its
subsidiaries of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
statements included or incorporated by reference in the Prospectus
under the headings "Capital Stock", "Description of Common Stock",
"Description of Preferred Stock", "Description of Depositary Shares",
insofar as they purport to constitute a summary of the terms of the
Securities, and under the headings "Federal Income Tax Considerations"
and "Plan of Distribution" insofar as such statements summarize legal
matters, agreements to which the Company is a party, documents or
proceedings discussed therein, are accurate and fair summaries of such
terms, legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any amendments or
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion), each as amended or
supplemented, comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and although counsel
14
assumes no responsibility for the accuracy, completeness or fairness of
statements made therein except to the extent set forth in paragraph
(iv) above, such counsel has no reason to believe that on the Effective
Date or the date the Registration Statement was last deemed amended the
Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(in each case, other than the financial statements and other financial
and statistical information contained therein, as to which such counsel
need express no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required to be
obtained by the Company in connection with the transactions
contemplated herein, except such as have been obtained under the Act
and such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated in this Agreement and in
the Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(ix) the execution and delivery by the Company of this
Agreement, its compliance with all of the provisions hereof and the
consummation by the Company of any of the transactions herein
contemplated, and, to the knowledge of such counsel, the sale of the
Securities being sold by Company and the consummation by the parties
other than the Company of any of the transactions herein contemplated,
will not conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries pursuant to, (i) the charter
or by-laws of the Company or its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument known to such counsel and to which the Company or any of its
subsidiaries (including the
15
Partnership) is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree known to such counsel to be applicable to the Company or its
subsidiaries (including the Partnership) of any court, regulatory body,
administrative agency, governmental body or arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties other than, in the case of clauses (ii)
and (iii), such breaches or violation which, if determined adversely to
the Company, would not reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein;
(x) to such counsel's knowledge no holders of securities of
the Company have rights to the registration of such securities under
the Registration Statement; and
(xi) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code for
each taxable year since its inception through the most recently
completed fiscal year, and based on assumptions set forth in the
Prospectus and certain representations of the Company, including but
not limited to those set forth in an Officer's Certificate, the
Company's present and contemplated organization, ownership, method of
operation, assets and income are such that the Company is in a position
under present law to so qualify for the current fiscal year and in
the future.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Florida or the
Federal laws of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the
Prospectus in this paragraph (b) shall also include any amendments or
supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Registration Statement, the Prospectus (together
with any amendment or supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
16
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company or two other
authorized signatories, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration Statement, the
Prospectus, any amendments or supplements to the Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any amendment or supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any amendment or supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date,
letters, dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the unaudited interim
financial information of the Company for the six-month period ended June 30,
2003, and as at June 30, 2003 in accordance with Statement on Auditing Standards
No. 100, and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and, if applicable, pro forma financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
17
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review, in accordance with standards
established under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the six-month period ended
June 30, 2003, and as at June 30, 2003, incorporated by reference in
the Registration Statement and the Prospectus; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive, audit and investment
committees of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31, 2002, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects
with applicable accounting requirements of the Act and with
the related rules and regulations adopted by the Commission with
respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in
the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to June
30, 2003, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
consolidated capital stock (other than issuances of capital
stock in connection with dividend reinvestment plans, upon
exercise of options and stock appreciation rights, upon earn-
outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference
in the Prospectus) or any increase in the consolidated mortgage
loans payable or long-term debt of the Company and its
subsidiaries or the Partnership and its subsidiaries, or any
decreases in total assets or stockholders' equity or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as
18
compared with the amounts shown on the June 30, 2003
consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus, or for the
period from July 1, 2003 to such specified date there were any
decreases, as compared with the comparable period of the
preceding year consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; or
(3) the information included or incorporated by
reference in the Registration Statement and Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data),
Item 302 (Supplementary Financial Information), and Item 503(d)
(Ratio of Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information set forth
under the captions "Selected Consolidated Financial Data" in the
Prospectus and the information included or incorporated by reference in
Items 1, 6 and 7 of the Company's Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Prospectus in this paragraph (e) include any
amendment or supplement thereto at the date of the letter.
19
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any amendment or supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
amendment or supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating.
(i) The Securities shall have been listed and admitted or authorized
for trading on the New York Stock Exchange, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have used good faith
efforts to furnish to the Representatives a letter substantially in the form of
Exhibit B hereto from each executive officer and director of the Company
addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Xxxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
20
7. Expenses. (a) The Company covenants and agrees with each of the
several Underwriters that, whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, (i) the Company will
pay or cause to be paid all registration, filing and stock exchange or National
Association of Securities Dealers fees, all fees and expenses of complying with
securities or blue sky laws, all printing expenses, messenger and delivery
expenses, any fees and disbursements of any counsel retained by the Company, any
fees and disbursements of independent public accountants for the Company
incurred in connection with the registration of the Securities under the Act,
all underwriting discounts and commissions and transfer taxes, if any, and any
premiums and other costs of policies of insurance obtained by the Company
against liabilities arising out of the public offering of the Securities. It is
understood, however, that, except as provided in this Section and Section 8
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in
21
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein;
provided, further, that with respect to any untrue statement or omission of
material fact made in any Preliminary Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such loss, claim, damage or liability
purchased the securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished copies of
the Prospectus to the Representatives, (x) delivery of the Prospectus was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Preliminary Prospectus was
corrected in the Prospectus and (z) there was not sent or given to such person,
at or prior to the written confirmation of the sale of such securities to such
person, a copy of the Prospectus. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, the directors, officers, employees and agents of
the Company, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent (excluding any provisos)
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the following
statements, as set forth under the heading "Underwriting" of the Prospectus,
constitute the only information furnished by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Prospectus: (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances appearing
in the third paragraph of page S-22 of the Prospectus and (iii) the second,
third and fourth full paragraphs of page S-23 of the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the
22
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of one such separate counsel (regardless of the number of
indemnified parties) if (i) the use of counsel chosen by the indemnifying party
to represent the indemnifiedparty would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other, from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other, in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal
23
to the total net proceeds from the offering (before deducting expenses) received
by it and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if
24
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities, (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Prospectus
(exclusive of any amendment or supplement thereto) or (iv) a material disruption
has occurred in commercial banking or securities settlement or clearance
services in the United States.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Citigroup Global Markets Inc., at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel (fax no.:
(000) 000-0000) and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx (fax no.:
(000) 000-0000); or if sent to the Company, will be mailed, delivered or
telefaxed to the number and address of the Company set forth in the Registration
Statement.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
25
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Commission" shall mean the Securities and Exchange
Commission.
"DTC" shall mean the Depository Trust Company.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the United States
Investment Company Act of 1940, as amended.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information, in each case including the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such preliminary prospectus
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus
26
relating to the Securities included in the Registration Statement at
the Effective Date, in each case including the documents incorporated
by reference therein pursuant to the applicable form under the Act, as
of the date of such prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Regency Centers Corporation
By: /s/ J. Xxxxxxxxx Xxxxxxx
--------------------------------------
Name: J. Xxxxxxxxx Xxxxxxx
Title: Senior Vice President -
Finance
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
28
SCHEDULE I
Number of Underwritten
Underwriters Securities to be Purchased
------------ --------------------------
Citigroup Global Markets Inc............................... 1,440,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................................ 1,440,000
Wachovia Capital Markets, LLC.............................. 360,000
Xxxxxxx Xxxxx & Associates, Inc............................ 360,000
-------------------
Total............................................. 3,600,000
EXHIBIT A
Subsidiaries of Regency Centers Corporation and Equity Ownership Thereof
August 12, 2003
NATURE OF % OF
ENTITY JURISDICTION OWNER(S) INTEREST OWNERSHIP
------------------------------------------------------------------------------------------------------------------------------------
Regency Centers, L.P. Delaware Regency Centers Corporation General Partnership 1.0%
Regency Centers Texas, LLC Limited Partnership 96.3%
Outside Investors Limited Partnership 2.7%
Regency Remediation, LLC Florida Regency Centers, L.P. Member 100%
RRG Net, LLC Florida Regency Realty Group, Inc. Member
Queensboro Associates, L.P. Georgia Regency Centers, L.P. General Partnership 50%
Real Sub, LLC (Outside Investor) Limited Partnership 50%
Northlake Village Shopping Center, LLC Florida Regency Centers, L.P. Member 100%
Regency Southgate Village Shopping Alabama Regency Centers, L.P. Member 100%
Center, LLC
RRG Holdings, LLC Florida Regency Centers, L.P. Member 100%
Regency Xxxxx, LLC Delaware Regency Centers, L.P. Member 100%
Regency Realty Group, Inc. Florida Regency Centers, L.P. Preferred Stock 100%
Common Stock 7%
RRG Holdings, LLC Common Stock 93%
Regency Realty Colorado, Inc. Florida Regency Realty Group, Inc. Common Stock 80%
Xxxxxxx Xxxxxxxx Common Stock 20%
(See Note 1)
Bear Creek Village Center, LLC Delaware Regency Centers, L.P. Member 100%
Cherry Street Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Centerplace of Greeley, LLC Delaware Regency Realty Group, Inc. Member 100%
Marietta Outparcel, Inc. Georgia Regency Realty Group, Inc. Common Stock 100%
Xxxxxxxx-Nolensville, LLC Florida Regency Realty Group, Inc. Member 100%
Xxxxx, LLC Florida Regency Realty Group, Inc. Member 100%
Xxxxx-Remount, Inc. South Carolina Regency Realty Group, Inc. Common Stock 100%
Xxxxxxxx Orange Corp. Tennessee Regency Realty Group, Inc. Common Stock 100%
Tulip Grove, LLC Florida Regency Realty Group, Inc. Member 100%
Hermosa Venture 2002, LLC Delaware Regency Realty Group, Inc. Member 100%
Hermitage Development, LLC Florida Regency Realty Group, Inc. Member 100%
Kleinwood Center, LLC Delaware Regency Realty Group, Inc. Member 100%
New Windsor Marketplace, LLC Delaware Regency Realty Group, Inc. Member 100%
West End Property, LLC Florida Regency Realty Group, Inc. Member 100%
Tinwood, LLC Florida Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
Mountain Meadow, LLC Delaware Regency Realty Group, Inc. Member 100%
Middle Tennessee Development, LLC Delaware Regency Realty Group, Inc. Member 100%
Hermitage Development II, LLC Florida Regency Realty Group, Inc. Member 100%
Bordeaux Development, LLC Florida Regency Realty Group, Inc. Member 100%
Atlantic-Pennsylvania, LLC Florida Regency Realty Group, Inc. Member 100%
8th and 20th Chelsea, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Somerset, LLC Delaware Regency Realty Group, Inc. Member 100%
Slausen Central, LLC Delaware Regency Realty Group, Inc. Member Note 2
Jog Road, LLC Florida Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
Southland Centers II, LLC Florida Jog Road, LLC Member 100%
Broadman, LLC Delaware Regency Realty Group, Inc. Member 100%
GME/RRG I, LLC Delaware Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
K&G/Regency II, LLC Delaware Regency Realty Group, Inc. Member 50%
GME Anaheim, LLC (Outside Investor) Member 50%
RRG-RMC-Xxxxx, LLC Delaware Regency Centers, L.P. Member 50%
RMC Xxxxx, LLC (Outside Investor) Member 50%
Regency Ocean East Partnership Limited Florida Regency Centers, L.P. General Partners 25%
WLD Realty, Ltd. (Outside Investor) Limited Partners 75%
Regency Woodlands/Kuykendahl, Ltd. Texas Regency Centers, L.P. General Partners 50%
HEB Grocery Company, LP Limited Partners 50%
(Outside Investor)
OTR/Regency Colorado Realty Holdings, L.P. Ohio Regency Centers, L.P. General Partners 30%
OTR (nominee for State Teachers Limited Partners 70%
Retirement Board of Ohio)
OTR/Regency Texas Realty Holdings, L.P. Ohio Regency Centers, L.P. General Partners 30%
OTR (nominee for State Teachers Limited Partners 70%
Retirement Board of Ohio)
R&KS Dell Range, LLC Wyoming Regency Centers, L.P. Member 100%
T&M Shiloh Development Company Texas Regency Centers, L.P. General Partners 50%
Topvalco General Partners 50%
T&R New Albany Development Company LLC Ohio Regency Centers, L.P. Member 50%
Member 50%
Luther Properties, Inc. Tennessee Regency Realty Group, Inc. Common Stock 100%
Regency Realty Group, N.E. Florida Regency Realty Group, Inc. Common Stock 100%
Vista Village, LLC Delaware Regency Realty Group, Inc. Member 50%
Civic Partners Vista Village I, LLC Member 50%
Valleydale, LLC Florida Regency Realty Group, Inc. Member
East Towne Center, LLC Delaware Regency Realty Group, Inc. Member
Regency/DS Ballwin, LLC Missouri Regency Realty Group, Inc. Member 50%
DS Ballwin Partners, Inc. (Outside Member 50%
Investor)
Regency Centers Advisors, LLC Florida Regency Centers, L.P. Member 100%
RC Georgia Holdings, LLC Georgia Regency Centers, L.P. Member 100%
Regency Centers Georgia, L.P. Georgia RC Georgia Holdings LLC General Partnership 1%
Regency Centers, L.P. Limited Partnership 99%
Regency Centers Texas, LLC Florida Regency Centers Corporation Member 100%
Columbia Regency Retail Partners, LLC Delaware Regency Centers, L.P. Member 20%
Oregon Public Employees
Retirement Fund Member 80%
Columbia Regency Texas 1, L.P. Delaware Regency Texas 1, LLC General Partnership 1%
Columbia Regency Retail Limited Partnership
Partners, LLC 99%
Regency Texas 1, LLC Delaware Columbia Regency Retail
Partners, LLC Member 100%
Columbia Retail Addison, LLC Delaware Columbia Regency Retail Member 100%
Partners, LLC
Columbia Retail Addison Town Center, Limited Delaware Columbia Retail Addison, LLC General Partnership 1%
Partnership Columbia Regency Retail Limited Partnership 99%
Partners, LLC
Columbia Retail Dulles, LLC Delaware Columbia Regency Retail Member 100%
Partners, LLC
Macquarie CountryWide-Regency, LLC Delaware Regency Center, L.P. Member 25%
Macquarie CountryWide (US)Corporation Member 75%
MCW-RC AL-Trace Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-King's, LLC
(fka MCW-RC Florida, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Anastasia, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Ocala, LLC
(fka MCW-RC Florida 2, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Pebblebrooke, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Shoppes at 104, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC IL-Long Meadow Commons, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC NC-Oakley, LLC
(fka MCW-RC North Carolina, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Merchant's, LLC (fka MCW-RC South Delaware Macquarie CountryWide-Regency, LLC Member 100%
Carolina, LLC)
MCW-RC VA-Brookville, LLC
(fka MCW-RC Virginia, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC Texas GP, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC TX-Hebron, LLC
(fka MCW-RC Texas, L.P.) Delaware Macquarie CountryWide-Regency, LLC Limited Partnership .99%
MCW-RC Texas GP, LLC General Partnersh 0.01%
MCW-RC GA-Xxxxxxx, LLC
(fka MCW-RC Georgia, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Orchard, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CO-Cheyenne, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CA-Campus, LLC
(fka MCW-RC California), LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CA-Garden Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC WA-Xxxxx, LLC
(fka MCW-XX Xxxxxxxxxx, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC KY-Silverlake, LLC
(fka MCW-RC Kentucky, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-XX XX-Xxxxxxxxx, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Xxxx Haven, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Xxxxxxx Hill, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OH-Milford, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OR-Hillsboro, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Rosewood, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Columbia Retail Washington 1, LLC Delaware Columbia Regency Retail Partners LLC Member 100%
Columbia Cascade Plaza, LLC Delaware Columbia Regency Retail
Washington 1, LLC Member 1%
Columbia Regency Retail Partners,
LLC Member 99%
Columbia Retail Texas 2, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Sweetwater Plaza, LLC Delaware Columbia Retail Texas 2, LLC General Partner 1%
Columbia Regency Retail Partners, LLC Limited Partner 99%
Columbia Retail MacArthur Phase II, LP Delaware Columbia Retail Texas 3, LLC General Partner 1%
Columbia Regency Retail Partners, LLC Limited Partner 99%
Note 1: Xxxxxxx Xxxxxxxx is a Regency employee who is the licensed broker for
this entity. Colorado requires that the broker must own a minimum of 20% of the
equity in a licensed entity.
Note 2: Regency is negotiating with an outside investor to participate in
Slausen Central, LLC. At this time the extent of the participation has not been
determined.
EXHIBIT B
[Letterhead of executive officer or director of
Corporation]
Regency Centers Corporation
---------------------------
Public Offering of Common Stock
-------------------------------
August o, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several Underwriters,
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between Regency
Centers Corporation, a Florida corporation (the "Company") and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.01 par value (the "Common
Stock"), of the Company.
In order to induce you (the "Representatives") and the other
Underwriters to enter into the Underwriting Agreement, the undersigned will not,
without the prior written consent of the Representatives, offer, sell, contract
to sell, pledge or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the undersigned or any affiliate of the undersigned
or any person in privity with the undersigned or any affiliate of the
undersigned), directly or indirectly, including the filing (or participation in
the filing) of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock, or publicly announce an
intention to effect any such transaction, for a period of 60 days after the date
of the Underwriting Agreement, other than shares of Common Stock (i) delivered
by the undersigned to the Company for the purpose of paying (1) the exercise
price on the exercise by the undersigned of options to purchase Common Stock
granted to the
2
undersigned by the Company and (2) taxes imposed on such exercise
of options and (ii) disposed of as bona fide gifts, so long as the donee of such
gift agrees in writing to be bound by the restrictions set forth herein and
notice of such gift is given to the Representatives.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of executive officer or
director]
[Name and address of executive officer
or director]
