EXHIBIT 10(n)
March 25, 0000
XXXX Xxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Dear Sirs:
This is to set forth the agreement of HSBC Xxxxx Xxxxx Canada, Inc.
("HSBC") and Lennar Corporation ("Lennar") regarding purchases by HSBC from
Lennar of Lennar common stock ("Common Stock"). That agreement is as follows:
1. HSBC will purchase from Lennar, at the times and for the prices
described below, Common Stock with a total purchase price to HSBC of up
to $120 million.
2. Prior to the beginning of a calendar month, Lennar will either (a)
inform HSBC that Lennar wants to sell Common Stock to HSBC with regard
to the month and specify to HSBC a maximum amount, not exceeding $15
million (or such higher amount as may be agreed to by HSBC), for which
Lennar wants to sell Common Stock to HSBC during the month (the
"Maximum Amount for the Month") and the minimum per share price for
which it will sell Common Stock to HSBC during the month (the "Minimum
Price for the Month") or (b) inform HSBC that it does not want to sell
Common Stock to HSBC with regard to the month.
3. On the third New York Stock Exchange Trading Day ("Trading Day") after
the end of a month with regard to which Lennar informs HSBC that Lennar
wants to sell Common Stock to HSBC, HSBC will purchase from Lennar a
number of shares of Common Stock, for a total purchase price,
calculated as follows:
(a) The Maximum Amount for the Month will be allocated equally
among the Trading Days in the month or among specified Trading
Days in the month agreed upon by Lennar and HSBC (the amount
allocated to a Trading Day being the "Daily Purchase Amount").
(b) Except as provided in subparagraph (c), with regard to each
Trading Day (or each of the specified Trading Days) during the
month, HSBC will purchase, for a per share price equal to 98%
of the average of the high and low sale prices of the Common
Stock reported on the New York Stock Exchange Composite Tape
with regard to that Trading Day, a number of shares of Common
Stock having a total sale price equal to the Daily Purchase
Amount.
(c) If the per share price with regard to a Trading Day calculated
as provided in subparagraph (b) is less than the Minimum Price
for the Month, no Common Stock will be purchased with regard
to that Trading Day.
(d) The total number of shares of Common Stock HSBC will purchase
with regard to a month will be the sum of the numbers of
shares HSBC will purchase with regard to each Trading Day (or
each of the specified Trading Days) during that month and the
total price for which HSBC will purchase those shares will be
the sum of the amounts
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resulting from multiplying, with regard to each Trading Day
(or each of the specified Trading Days) during the month, (i)
the per share price calculated as described in subparagraph
(b), times (ii) the number of shares HSBC will purchase
calculated as described in subparagraphs (b) and (c).
4. On a day when HSBC purchases Common Stock from Lennar (i.e., the third
Trading Day after the end of a month with regard to which Lennar
informs HSBC that Lennar wants to sell Common Stock to HSBC), Lennar
will cause the shares of Common Stock HSBC is purchasing to be issued
to HSBC (either by delivery of stock certificates or by credit to an
account specified by HSBC with The Depositary Trust Company or another
book-entry clearing facility) and HSBC will cause the purchase price of
those shares, in immediately available U.S. dollars, to be wire
transferred to an account specified by Lennar with a bank in the United
States of America.
5. The sales from Lennar to HSBC described above will be registered under
the Securities Act of 1933, as amended. Lennar and HSBC will indemnify
each other as provided on Exhibit A against liability with respect to
the Registration Statement relating to the Common Stock which is sold
to HSBC.
6. This Agreement will be governed by the laws of the State of Florida in
the United States of America.
Please execute a copy of this document, which, when executed by HSBC,
will constitute a binding agreement between Lennar and HSBC.
Very truly yours,
LENNAR CORPORATION
By: /s/ XXXXX XXXXX
---------------------------------
Title: Vice President and
Chief Financial Officer
AGREED TO:
HSBC XXXXX XXXXX CANADA, INC.
By: /s/ XXXXX XXXXXXX
-------------------------------------
Title: Executive Vice President
and Director
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EXHIBIT A
TERMS OF INDEMNIFICATION
(a) Lennar will indemnify HSBC and each person, if any, who controls HSBC
for the purposes of the Securities Act of 1933, as amended (the
"Securities Act"), against, and hold each of them harmless from, any
loss, liability or expenses which any of them may incur, under the
Securities Act or otherwise, as a result of a claim or action arising
out of, or based upon,(i) any untrue statement or alleged untrue
statement of a material fact contained, or incorporated by reference,
in the Registration Statement relating to Common Stock being sold to
HSBC (including the Prospectus dated February 12, 1998 and the
Prospectus Supplement dated March 25, 1998 (the "Prospectus
Supplement") which are a part of it), or any amendment or supplement to
it, or (ii) the omission or alleged omission to state in that
Registration Statement or any document incorporated by reference into
it, a material fact required to be stated therein or necessary to make
the statements therein not misleading, and Lennar will reimburse HSBC
and each such controlling person promptly upon demand for any legal or
other expenses reasonably incurred by HSBC or the controlling person in
investigating, defending against, or preparing to defend against any
such claim or action, except that Lennar will not be liable to the
extent a claim or action which results in a loss, liability or expenses
arises out of, or is based upon, an untrue statement, alleged untrue
statement, omission or alleged omission, included in the Prospectus
Supplement or any amendment or supplement to it in reliance upon, and
in conformity with, written information furnished by HSBC to Lennar for
inclusion in the Prospectus Supplement.
(b) HSBC will indemnify Lennar, each of its directors and officers, and
each person, if any, who controls Lennar for the purposes of the
Securities Act, against, and hold each of them harmless from, any loss,
liability or expenses which any of them may incur, under the Securities
Act or otherwise, as a result of a claim or action arising out of, or
based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus Supplement or any amendment
or supplement to it or (ii) the omission or alleged omission to state
in the Prospectus Supplement or any amendment or supplement to it a
material fact required to be stated therein or necessary to make the
statements therein not misleading, to the extent, but only to the
extent, the untrue statement, alleged untrue statement, omission or
alleged omission was made in reliance upon, and in conformity with,
written information furnished by HSBC to Lennar for inclusion in the
Prospectus Supplement or any amendment or supplement to it, and HSBC
will reimburse Lennar and each such director, officer or controlling
person promptly upon demand for any legal or any other expenses
reasonably incurred by Lennar or the other person in investigating,
defending against, or preparing to defend against any such claim or
action.
(c) Promptly after a person receives notice of a claim or the commencement
of an action for which the person intends to seek indemnification under
Paragraph (a) or (b), the person will notify the indemnifying party in
writing of the claim or commencement of the action, but failure to
notify the indemnifying party will not relieve the indemnifying party
from liability under Paragraph (a) or (b), except to the extent it has
been materially prejudiced by the failure to give notice. The
indemnifying party will be entitled to participate in the defense of
any claim or action as to which indemnification is being sought, and if
the indemnifying party acknowledges in writing the obligation to
indemnify the party against whom the claim or action is brought, the
indemnifying party may (but will not be required to) assume the defense
against the claim or action with counsel satisfactory to it. After an
indemnifying party notifies
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an indemnified party that the indemnifying party wishes to assume the
defense of a claim or action, the indemnifying party will not be liable
for any legal or other expenses incurred by the indemnified party in
connection with the defense against the claim or action, except that
if, in the opinion of counsel to the indemnifying party, one or more of
the indemnified parties should be separately represented in connection
with a claim or action, the indemnifying party will pay the fees and
expenses of one separate counsel for the indemnified parties. Each
indemnified party, as a condition to receiving indemnification as
provided in Paragraph (a) or (b), will cooperate in all reasonable
respects with the indemnifying party in the defense of any action or
claim as to which indemnification is sought. No indemnifying party will
be liable for any settlement of any action effected without its prior
written consent. No indemnifying party will, without the prior written
consent of the indemnified party, effect any settlement of a pending or
threatened action with respect which an indemnified party is, or is
informed that it may be, made a party and for which it would be
entitled to indemnification, unless the settlement includes an
unconditional release of the indemnified party from all liability and
claims which are the subject matter of the pending or threatened
action.
(d) If for any reason the indemnification provided for in this Agreement is
not available to, or is not sufficient to hold harmless, an indemnified
party in respect of any loss or liability referred to in Paragraph (a)
or (b), each indemnifying party will, in lieu of indemnifying the
indemnified party, contribute to the amount paid or payable by the
indemnified party as a result of the loss or liability, (i) in the
proportion which is appropriate to reflect the relative benefits
received by the indemnifying party on the one hand and by the
indemnified party on the other from the sale of stock which is the
subject of the claim or action which resulted in the loss or liability
or (ii) if that allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
of the sale of stock, but also the relative fault of the indemnifying
party and the indemnified party with respect to the statements or
omissions which are the subject of the claim or action that resulted in
the loss or liability, as well as any other relevant equitable
considerations.
(e) HSBC confirms that the information with respect to the offering of
Lennar stock set forth on the cover page of the Prospectus Supplement,
and the information under the caption "Plan of Distribution" in the
Prospectus Supplement, is correct and was furnished (and is the only
information furnished) in writing to Lennar by HSBC for inclusion in
the Prospectus Supplement.
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