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Pricing Agreement
January 21, 1997
Xxxxxxx, Xxxxx & Co.,
Alex. Xxxxx & Sons Incorporated,
Xxxx Xxxxxx Xxxxxxxx Inc.,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Prudential Securities Incorporated,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Dear Ladies and Gentlemen:
Xxxxxxx Properties, Inc., a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated February 28, 1996 (the "Underwriting Agreement"),
between the Company and Xxxxxxx Properties, L.P., a California limited
partnership (the "Operating Partnership"), on the one hand and Xxxxxxx, Xxxxx &
Co., Alex. Xxxxx & Sons Incorporated, Xxxx Xxxxxx Xxxxxxxx Inc., Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation and Prudential Securities Incorporated,
on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Shares specified in Schedule II hereto (the
"Designated Shares" consisting of Firm Shares and any Optional Shares the
Underwriters may elect to purchase). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Pricing Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of this Pricing
Agreement in relation to the Prospectus included in the registration statement
on Form S-3 (File No. 333-04299) (including the related Rule 462(b) registration
statement, the "Third Registration Statement"), as amended or supplemented
relating to the Designated Shares which are the subject of this Pricing
Agreement, in the form in which it is proposed to be filed with the Commission.
Each representation and warranty which refers to the Second Registration
Statement in Section 2(a) of the Underwriting Agreement shall also be deemed to
be a representation or warranty in relation to the Third Registration Statement
as of the date of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined,
except that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated shall be included
as a Representative. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Shares pursuant to Section 12 of the Underwriting Agreement and the address of
the Representatives referred to in such Section 12 are set forth in Schedule II
hereto.
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An amendment to the Second Registration Statement, the Third
Registration Statement or a supplement to the Prospectus, as the case may be,
relating to the Designated Shares, in the form heretofore delivered to you is
now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and, (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Shares, as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Shares as to which
such election shall have been exercised.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering over-allotments in
the sale of the Firm Shares. Any such election to purchase Optional Shares may
be exercised by written notice from the Representatives to the Company given
within a period of 30 calendar days after the date of this Pricing Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
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If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Company and the Operating Partnership. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or will
be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
XXXXXXX PROPERTIES, INC.
By:
Name:
Title:
XXXXXXX PROPERTIES, L.P.
By: XXXXXXX PROPERTIES, INC.
By:
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxx. Xxxxx & Sons Incorporated
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Prudential Securities Incorporated
By: Xxxxxxx, Sachs & Co.
_________________________
(Xxxxxxx, Xxxxx & Co.)
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SCHEDULE I
MAXIMUM NUMBER
NUMBER OF FIRM OF OPTIONAL SHARES
SHARES TO BE WHICH MAY BE
UNDERWRITER PURCHASED PURCHASED
---------------- -------------- ------------------
Xxxxxxx, Sachs & Co. ...................................... 1,400,000 210,000
Alex. Xxxxx & Sons Incorporated............................ 1,400,000 210,000
Xxxx Xxxxxx Xxxxxxxx Inc................................... 1,400,000 210,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation........ 1,400,000 210,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated......... 1,400,000 210,000
Prudential Securities Incorporated......................... 1,400,000 210,000
Xxxxxxxxx & Company, Inc................................... 400,000 60,000
Xxxxxxxxxx Securities...................................... 400,000 60,000
X.X. Xxxxxx Securities Inc. .............................. 400,000 60,000
Xxxxxx Xxxxxxx & Co. Incorporated.......................... 400,000 60,000
----------- ----------
Total............................................. 10,000,000 1,500,000
=========== ==========
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SCHEDULE II
TITLE OF DESIGNATED SHARES: Common Stock, par value $.0001 per share
NUMBER OF DESIGNATED SHARES: Number of Firm Shares: 10,000,000
Maximum Number of Optional Shares: 1,500,000
INITIAL OFFERING PRICE TO PUBLIC: $34.50 per Share
PURCHASE PRICE TO THE UNDERWRITERS: $32.69 per Share
FORM OF DESIGNATED SHARES:
Definitive form, to be delivered through The Depository Trust Company.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Same day funds.
BLACKOUT PROVISIONS WITH RESPECT TO THE DESIGNATED SHARES:
During the period beginning from the date hereof and continuing to and
including the date 90 days after the date hereof, the Company will not
offer, sell, contract to sell or otherwise dispose of any Shares or any
securities of the Company that are substantially similar to the Shares, or
any other security convertible into or exchangeable for, or represent the
right to receive, Shares or any such substantially similar securities,
except for (i) Shares issuable pursuant to employee stock option plans
existing on, or upon the conversion of convertible or exchangeable
securities existing on, or upon the conversion of convertible or
exchangeable securities outstanding as of, the date hereof, and (ii) Shares
issuable upon the exchange of partnership units in the Operating
Partnership or the issuance of partnership units in the Operating
Partnership (which may be exchanged for Shares no earlier than 90 days
after the date hereof), without the prior written consent of the
Representatives.
TIME OF DELIVERY: 9:30 a.m. (New York City time), January 27, 1997
CLOSING LOCATION: Xxxxxxxx & Xxxxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Xxxxxxx, Sachs & Co., Alex. Xxxxx & Sons
Incorporated, Xxxx Xxxxxx Xxxxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Prudential Securities Incorporated.
Address for Notices, etc.: Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000
