EXHIBIT 1.1
7,762,500 SHARES
COMMON STOCK
($.001 PAR VALUE)
UNDERWRITING AGREEMENT
June , 1998
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Incorporated
Sutro & Co. Incorporated
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, Mission West Properties, a Maryland corporation (the
"Company"), and each of (i) Mission West Properties, L.P., a Delware limited
partnership, (ii) Mission West Properties, L.P. I, a Delaware limited
partnership, (iii) Mission West Properties, ▇.▇. ▇▇, a Delaware limited
partnership, and (iv) Mission West Properties, L.P. III, a Delaware limited
partnership (collectively, the "OPERATING PARTNERSHIPS") hereby address you as
the representatives (the "REPRESENTATIVES") of each of the persons, firms and
corporations listed on SCHEDULE I HERETO (collectively, the "UNDERWRITERS") and
hereby confirm their agreement with the several Underwriters as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to the
Underwriters 6,750,000 shares of its Common Stock, par value $.001 per share, as
set forth on SCHEDULE I hereto (such 6,750,000 shares of Common Stock are herein
collectively referred to as the "FIRM SHARES"). Solely for the purpose of
covering over-allotments in the sale of the Firm Shares, the Company further
proposes to grant to the Underwriters the right to purchase up to an additional
1,012,500 shares of Common Stock (the "OPTION SHARES"), as provided in Section 3
of this Agreement. The Firm Shares and the Option Shares are herein sometimes
referred to as the "SHARES" and are more fully described in the Prospectus
hereinafter defined.
2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and each such Underwriter agrees, severally and not jointly, to
purchase from the Company at a purchase price of $ per share, the number of
Firm Shares set forth opposite the name of such Underwriter in SCHEDULE I hereto
and any additional number of Option Shares which such Underwriter may become
obligated to purchase pursuant to Section 3 hereof.
The Company will deliver definitive certificates for the Firm Shares at the
office of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
("▇▇▇▇▇▇▇' OFFICE"), or such other place as you and the Company may mutually
agree upon, for the accounts of the Underwriters against payment to the Company
of the purchase price for the Firm Shares sold by them to the several
Underwriters by wire transfer of immediately available funds payable to the
order of the Company and delivered to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may be agreed upon between you and the
Company (the "PLACE OF CLOSING"), at 10:00 a.m., New York time, on ,
1999, or at such other time and date not later than five full business days
thereafter as you and the Company may agree, such time and date of payment and
delivery being herein called the "CLOSING DATE."
The certificates for the Firm Shares so to be delivered will be made
available to you for inspection at ▇▇▇▇▇▇▇' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least forty-eight hours prior to the Closing Date.
It is understood that an Underwriter, individually, may (but shall not be
obligated to) make payment on behalf of the other Underwriters whose funds shall
not have been received prior to the Closing Date for
Shares to be purchased by such Underwriter. Any such payment by an Underwriter
shall not relieve the other Underwriters of any of their obligations hereunder.
It is understood that the Underwriters propose to offer the Shares to the
public upon the terms and conditions set forth in the Registration Statement
hereinafter defined.
3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES. The Company hereby
grants options to the Underwriters to purchase from it on a PRO RATA basis up to
1,012,500 Option Shares, on the same terms and conditions as the Firm Shares;
PROVIDED, HOWEVER, that such options may be exercised only for the purpose of
covering any over-allotments which may be made by them in the sale of the Firm
Shares. No Option Shares shall be sold or delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered.
The options are exercisable on behalf of the several Underwriters by you, as
Representatives, at any time, and from time to time, before the expiration of 30
days from the date of the Prospectus (or, if such 30th day shall be a Saturday
or Sunday or a holiday, on the next day thereunder when the American Stock
Exchange is open for trading), for the purchase of all or part of the Option
Shares covered thereby, by notice given by you to the Company in the manner
provided in Section 13 hereof, setting forth the number of Option Shares as to
which the Underwriters are exercising the options, and the date of delivery of
said Option Shares, which date shall not be more than five business days after
such notice unless otherwise agreed to by the parties. You may terminate the
options at any time, as to any unexercised portion thereof, by giving written
notice to the Company to such effect.
You, as Representatives, shall make such allocation of the Option Shares
among the Underwriters as may be required to eliminate purchases of fractional
Shares.
Delivery of the Option Shares with respect to which the options shall have
been exercised shall be made to or upon your order at ▇▇▇▇▇▇▇' Office (or at
such other place as you and the Company may mutually agree upon), against
payment by you of the per share purchase price to the Company by wire transfer
of immediately available funds. Such payment and delivery shall be made at 10:00
a.m., New York time, on the date designated in the notice given by you as above
provided for (which may be the same as the Closing Date), unless some other date
and time are agreed upon, which date and time of payment and delivery are called
the "OPTION CLOSING DATE." The certificates for the Option Shares so to be
delivered will be made available to you for inspection at ▇▇▇▇▇▇▇' Office at
least one full business day prior to the Option Closing Date and will be in such
names and denominations as you may request at least forty-eight hours prior to
the Option Closing Date. On the Option Closing Date, the Company shall provide
the Underwriters such representations, warranties, agreements, opinions,
letters, certificates and covenants with respect to the Option Shares as are
required to be delivered on the Closing Date with respect to the Firm Shares.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
OPERATING PARTNERSHIPS.
(a) The Company and each Operating Partnership, jointly and severally,
represent and warrant to and agree with each Underwriter that:
(i) A registration statement (Registration No. 333-80203) on Form S-11
with respect to the Shares, including a preliminary prospectus, and such
amendments to such registration statement as may have been required to the
date of this Agreement, has been carefully prepared by the Company pursuant
to and in conformity with the requirements of the Securities Act of 1933, as
amended (the "1933 ACT"), and the rules and regulations thereunder (the
"1933 ACT RULES AND REGULATIONS") of the Securities and Exchange Commission
(the "SEC") and has been filed with the SEC under the 1933 Act. Copies of
such registration statement, including any amendments thereto, each related
preliminary prospectus (meeting the requirements of Rule 430 or 430A of the
1933 Act Rules and Regulations) contained therein, and the exhibits,
financial statements and schedules thereto have heretofore been delivered by
the Company to you. If such registration statement has not become
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effective under the 1933 Act, a further amendment to such registration
statement, including a form of final prospectus, necessary to permit such
registration statement to become effective will be filed promptly by the
Company with the SEC. If such registration statement has become effective
under the 1933 Act, a final prospectus containing information permitted to
be omitted at the time of effectiveness by Rule 430A of the 1933 Act Rules
and Regulations will be filed promptly by the Company with the SEC in
accordance with Rule 424(b) of the 1933 Act Rules and Regulations. The term
"REGISTRATION STATEMENT" as used herein means the registration statement as
amended at the time it becomes effective under the 1933 Act (the "EFFECTIVE
DATE"), including financial statements and all exhibits and, if applicable,
the information deemed to be included by Rule 430A of the 1933 Act Rules and
Regulations. If it is contemplated, at the time this Agreement is executed,
that a post-effective amendment to such registration statement will be filed
and must be declared effective before the offering of Shares may commence,
the term "Registration Statement" as used herein means the registration
statement as amended by said post-effective amendment. If an abbreviated
registration statement is prepared and filed with the SEC in accordance with
Rule 462(b) under the 1933 Act (an "ABBREVIATED REGISTRATION STATEMENT"),
the term "Registration Statement" as used in this Agreement includes the
Abbreviated Registration Statement. The term "PROSPECTUS" as used herein
means (i) the prospectus as first filed with the SEC pursuant to Rule 424(b)
of the 1933 Act Rules and Regulations, or (ii) if no such filing is
required, the form of final prospectus included in the Registration
Statement at the Effective Date or (iii) if a Term Sheet or Abbreviated Term
Sheet (as such terms are defined in Rule 434(b) and 434(c), respectively, of
the 1933 Act Rules and Regulations) is filed with the SEC pursuant to Rule
424(b)(7) of the 1933 Act Rules and Regulations, the Term Sheet or
Abbreviated Term Sheet and the last Preliminary Prospectus filed with the
SEC prior to the time the Registration Statement became effective, taken
together. The term "PRELIMINARY PROSPECTUS" as used herein shall mean a
preliminary prospectus as contemplated by Rule 430 or 430A of the 1933 Act
Rules and Regulations included at any time in the Registration Statement.
For purposes of this Agreement, the words "amend," "amendment," "amended,"
"supplement" or "supplemented" with respect to the Registration Statement or
the Prospectus shall mean amendments or supplements to the Registration
Statement or the Prospectus, as the case may be.
(ii) Neither the SEC nor any state or other jurisdiction or other
regulatory body has issued, and neither is, to the knowledge of the Company,
threatening to issue, an any stop order under the 1933 Act or other order
suspending the effectiveness of the Registration Statement (as amended or
supplemented) or preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the qualification or registration
of the Shares for offering or sale in any jurisdiction nor instituted or, to
the knowledge of the Company, threatened to institute proceedings for any
such purpose. Each Preliminary Prospectus at its date of issue, the
Registration Statement and the Prospectus and any amendments or supplements
thereto contain or will contain, as the case may be, all statements which
are required to be stated therein by, and in all material respects conform
or will conform, as the case may be, to the requirements of, the 1933 Act
and the 1933 Act Rules and Regulations. Neither the Registration Statement
nor any amendment thereto, as of the applicable effective date, contains or
will contain, as the case may be, any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein
or necessary to make the statements therein, not misleading, and neither any
Preliminary Prospectus, the Prospectus nor any supplement thereto contains
or will contain, as the case may be, any untrue statement of a material fact
or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that the Company makes no representation or warranty as to information
contained in or omitted from the Registration Statement or the Prospectus,
or any such amendment or supplement, in reliance upon, and in conformity
with, written information furnished to the Company relating to the
Underwriters by or on behalf of the Underwriters expressly for use in the
preparation thereof (as provided in Section 14 hereof). There is no contract
or document required to be described
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in the Registration Statement or Prospectus or to be filed as an exhibit to
the Registration Statement which is not described or filed as required.
(iii) This Agreement has been duly authorized, executed and delivered by
the Company and each of the Operating Partnerships and constitutes a valid
and legally binding obligation of the Company and the Operating Partnerships
enforceable against the Company and the Operating Partnerships in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by
general principles of equity (the "EXCEPTIONS").
(iv) (a) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Maryland, with
full power and authority (corporate and other) to own, lease and operate its
properties and conduct its businesses as described in the Prospectus and to
execute and deliver, and perform its obligations under this Agreement. The
Company is duly qualified to do business as a foreign corporation in good
standing in California and in each state or other jurisdiction in which its
ownership or leasing of property or conduct of business legally requires
such qualification, except where the failure to be so qualified,
individually or in the aggregate, would not have a Material Adverse Effect.
The term "MATERIAL ADVERSE EFFECT" as used herein means any material adverse
effect on the condition (financial or other), net worth, business, affairs,
management, prospects, results of operations or cash flow of the Company and
the Subsidiaries (as defined below), taken as a whole.
(b) Each Operating Partnership is a limited partnership duly formed
and existing under and by virtue of the laws of the State of Delaware and
is in good standing under the Delaware Revised Uniform Limited
Partnership Act with partnership power and authority to own, lease and
operate its properties and conduct its businesses as described in the
Prospectus and to execute and deliver, and perform its obligations under
this Agreement. Each Operating Partnership is duly qualified to do
business as a foreign corporation in good standing in California and in
each state or other jurisdiction in which its ownership or leasing of
property or conduct of business legally requires such qualification,
except where the failure to be so qualified, individually or in the
aggregate, would not have a Material Adverse Effect. The Company is the
sole general partner of each Operating Partnership and immediately after
the Closing Date will be the sole general partner of each Operating
Partnership and will own the outstanding partnership interests as set
forth in the Prospectus. Each of the Amended and Restated Agreements of
Limited Partnership of each Operating Partnership filed as exhibits to
the Registration Statement (collectively, the "OPERATING PARTNERSHIP
AGREEMENTS") has been duly and validly authorized, executed and delivered
by the parties thereto and constitutes a valid and legally binding
obligation of the Company and the Operating Partnerships enforceable
against the Company and the Operating Partnerships in accordance with its
terms, except as enforceability may be limited by the Exceptions.
(c) MIT Realty, Inc., a California corporation, and Mission West
Executive Aircraft Center, Inc., a California corporation (collectively,
the "CORPORATE SUBSIDIARIES" and, together with the Operating
Partnerships, the "SUBSIDIARIES"), are the only subsidiaries of the
Company other than the Operating Partnerships. Each of the Corporate
Subsidiaries has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of California,
with full power and authority (corporate and other) to own, lease and
operate its properties and conduct its businesses. Each Corporate
Subsidiary is duly qualified to do business as a foreign corporation in
good standing in each state or other jurisdiction in which its ownership
or leasing of property or conduct of business legally requires such
qualification, except where the failure to be so qualified, individually
or in the aggregate, would not have a Material Adverse Effect.
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(v) Neither the Company nor any of its Subsidiaries has sustained since
the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree.
otherwise than as set forth in the Prospectus. Since the respective dates as
of which information is given in the Prospectus, other than as set forth in
or contemplated by the Prospectus: (A) there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company or any of its Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its Subsidiaries taken as a whole,
(B) the Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock, (C) no Operating Partnership has purchased any of its
outstanding Units, nor declared, paid or otherwise made any dividend or
distribution of any kind on its Units and (D) none of the Company or its
Subsidiaries have incurred any material liability or obligation, direct or
contingent, or entered into any material transaction not in the ordinary
course of business.
(vi) The issuance and sale of the Shares and the execution, delivery and
performance by the Company and the Operating Partnerships of this Agreement,
and the consummation of the transactions herein contemplated, will not (A)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any properties or assets
of the Company or any of its Subsidiaries under, any indenture, mortgage,
deed of trust, loan agreement, partnership agreement, joint venture
agreement or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the properties or assets of the
Company or any of its Subsidiaries is subject, except to such extent as,
individually or in the aggregate, does not have a Material Adverse Effect,
(B) result in any violation of the provisions of the Company's Articles of
Amendment and Restatement (the "CHARTER") or bylaws, the Operating
Partnership Agreements, certificates of limited partnership or other
governing documents of the Company or its Subsidiaries or (C) result in a
violation of any statute, rule, regulation or other law, or any order or
judgment, of any court or governmental agency or body having jurisdiction
over the Company or any of its Subsidiaries or any of their properties. No
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the issuance and sale
of the Shares or the consummation of the transactions contemplated hereby,
except such as have been, or will be prior to the Closing Date, obtained
under the 1933 Act or as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or blue sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(vii) (a) The Company has duly and validly authorized capital stock as
set forth in the Prospectus. All outstanding shares of Common Stock of the
Company and the Shares conform, or when issued will conform, to the
description thereof in the Prospectus and have been, or, when issued and
paid for in the manner described herein will be, duly authorized, validly
issued, fully paid and non-assessable. The issuance of the Shares to be
purchased from the Company hereunder will be consummated in compliance with
all applicable laws (including, without limitation, federal and state
securities laws), is not subject to preemptive or other similar rights, or
any restriction upon the voting or transfer thereof pursuant to applicable
law (including the Maryland General Corporate Law (the "MGCL")) or the
Company's Charter, bylaws or governing documents or any agreement to which
the Company or any of its Subsidiaries is a party or by which any of them
may be bound. All corporate action required to be taken by the Company for
the authorization, issuance and sale of the Shares has been duly and validly
taken.
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(b) Except as disclosed in the Prospectus, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sale or rights related to or entitling any person to
purchase or otherwise to acquire any shares of, or any security
convertible into or exchangeable or exercisable for, the capital stock or
Units (as defined below) of, or other ownership interest in, the Company
or any Subsidiary.
(c) All of the outstanding shares of capital stock of the Corporate
Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by the Company free and clear of any
mortgage, pledge, lien, encumbrance, charge or adverse claim and are not
the subject of any agreement or understanding with any person and were
not issued in violation of any preemptive or similar rights. There are no
outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or instruments related to or entitling
any person to purchase or otherwise acquire any shares of, or any
security convertible into or exchangeable or exercisable for, the capital
stock of, or other ownership interest in any of the Corporate
Subsidiaries.
(d) The outstanding units of the Operating Partnerships ("UNITS"),
including without limitation, Units issued and to be issued to the
Company, have been duly authorized for issuance by each respective
Operating Partnership to the holders thereof and are validly issued and
fully paid. The Units held by the Company are owned directly by the
Company, free and clear of any mortgage, pledge, lien, encumbrance,
charge or adverse claim and are not the subject of any agreement or
understanding with any person and were not issued in violation of any
preemptive or similar rights. The Units have been and will be offered and
sold on or prior to the Closing Date in compliance with all applicable
laws (including, without limitation, federal and state securities laws).
The following table sets forth, as of the date hereof and on the Closing
Date, the number issued and outstanding Units of each Operating
Partnership, indicating the number of Units held by the Company and those
held by the limited partners of the Operating Partnerships.
TOTAL OUTSTANDING
ENTITY UNITS UNITS HELD BY COMPANY
---------------------------------------------- ---------------------- ---------------------
Mission West Properties L.P. .................
Mission West Properties L.P. I................
Mission West Properties ▇.▇. ▇▇...............
Mission West Properties L.P. III..............
TOTAL.........................................
(viii) The statements set forth in the Prospectus describing the Shares
and this Agreement, insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and fair.
(ix) Each of the Company and its Subsidiaries is in possession of and is
operating in compliance with all franchises, grants, authorizations,
licenses, certificates, permits, easements, consents, orders and approvals
("PERMITS") from all state, federal, foreign and other regulatory
authorities, and has satisfied the requirements imposed by regulatory
bodies, administrative agencies or other governmental bodies, agencies or
officials, that are required for the Company and its Subsidiaries lawfully
to own, lease and operate their properties and conduct their businesses as
described in the Prospectus, and, each of the Company and its Subsidiaries
is conducting its business in compliance with all of the laws, rules and
regulations of each jurisdiction in which it conducts its business, in each
case with such exceptions, individually or in the aggregate, as would not
have a Material Adverse Effect. Each of the Company and its Subsidiaries has
filed all notices, reports, documents or other information ("NOTICES")
required to be filed under applicable laws, rules and regulations, in each
case, with such exceptions, individually or in the aggregate, as would not
have a Material Adverse Effect. Except as
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otherwise specifically described in the Prospectus, neither the Company nor
any of its Subsidiaries has received any notification from any court or
governmental body, authority or agency, relating to the revocation or
modification of any such Permit or, to the effect that any additional
authorization, approval, order, consent, license, certificate, permit,
registration or qualification ("APPROVALS") from such regulatory authority
is needed to be obtained by any of them, in any case where it could be
reasonably expected that obtaining such Approvals or the failure to obtain
such Approvals, individually or in the aggregate, would have a Material
Adverse Effect.
(x) The Company and its Subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns and have paid all
taxes required to be paid and any other assessment, fine or penalty levied
against them, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty that is
being contested in good faith (and except in any case in which the failure
to so file or pay would not have a Material Adverse Effect). All such tax
returns are complete and correct in all material respects. All tax
liabilities are adequately provided for on the books of the Company and its
Subsidiaries except to such extent as would not have a Material Adverse
Effect. The Company and its Subsidiaries have made all necessary payroll tax
payments and are current and up-to-date. The Company and its Subsidiaries
have no knowledge of any tax proceeding or action pending or threatened
against the Company or its Subsidiaries which, individually or in the
aggregate, might have a Material Adverse Effect.
(xi) Except as described in the Prospectus, the Company and its
Subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade
names necessary to conduct the business now operated by them, and neither
the Company nor any of its Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
(xii) (a) Except as described in the Prospectus, the Company and its
Subsidiaries have good and marketable title in fee simple to all items of
real property and the improvements thereon and good and marketable title to
all personal property owned by them (collectively, the "PROPERTIES") and all
other assets that are required for the effective operation of the Properties
in the manner in which they are currently operated, in each case free and
clear of all liens, encumbrances, restrictions and defects except such as
are described in the Prospectus or do not materially affect the value of
such property and do not interfere with the use made and proposed to be made
of such property. (b) Any property held under lease or sublease by the
Company or any of its Subsidiaries is held under valid, subsisting and
enforceable leases or subleases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property
by the Company and its Subsidiaries. (c) All liens, charges, encumbrances,
claims, or restrictions on or affecting any of the Properties and the assets
of the Company or any of its Subsidiaries which are required to be disclosed
in the Prospectus are disclosed therein. (d) Neither any Subsidiary nor any
tenant of any of the Properties is in default under any of the leases
pursuant to which any Subsidiary, as lessor, leases its Property (and
neither the Company nor the Operating Partnerships know of any event which,
but for the passage of time or the giving of notice, or both, would
constitute a default under any of such leases) other than such defaults that
would not result in a Material Adverse Effect. (e) Except as described in
the Prospectus, no person has an option or right of first refusal to
purchase all or part of any Property or any interest therein which is
material to the Company. (f) Each of the Properties complies with all
applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access
to the Properties), except if and to the extent disclosed in the Prospectus
and except for such failures to comply that would not individually or in the
aggregate result in a Material Adverse Effect. (g) Neither of the Company
nor any of the Operating Partnerships has
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knowledge of any pending or threatened condemnation proceedings, zoning
change, or other similar proceeding or action that will in any manner affect
the size of, use of, improvements on, construction on or access to any of
the Properties, except such proceedings or actions that would not have a
Material Adverse Effect.
(xiii) Except as disclosed in the Prospectus: (i) each Property,
including, without limitation, the Environment (as defined below) associated
with such Property, is free of any Hazardous Substance (as defined below) in
violation of any Environmental Law (as defined below) applicable to such
Property, except for Hazardous Substances that would not result in a
Material Adverse Effect; (ii) none of the Company or any Subsidiary or any
prior owner of any of the Properties affiliated with the ▇▇▇▇ Group has
caused or suffered to occur any Release (as defined below) of any Hazardous
Substance into the Environment on, in, under or from any Property in
violation of any Environmental Law applicable to such Property, other than
such Releases which, singly or in the aggregate, do not require significant
remediation, and no condition exists on, in, under or, to the knowledge of
the Company and its Subsidiaries, adjacent to any Property that could result
in the incurrence of material liabilities or any material violations of any
Environmental Law applicable to such Property, give rise to the imposition
of any material Lien (as defined below) under any Environmental Law, or
cause or constitute a material health, safety or environmental hazard to any
property, person or entity; (iii) none of the Company or any Subsidiary is
engaged, and none of the Company, the Operating Partnership or any of the
Subsidiaries intends to engage in any manufacturing or any other similar
operations at the Properties that (1) require the use, handling,
transportation, storage, treatment or disposal of any Hazardous Substance
(other than cleaning solvents and similar materials and other than
insecticides and herbicides or other Hazardous Substances that are used in
the ordinary course of operating the Properties and in compliance with all
applicable Environmental Laws) or (2) require permits or are otherwise
regulated pursuant to any Environmental Law; (iv) none of the Company or any
Subsidiary has received any written notice of a claim under or pursuant to
any Environmental Law applicable to a Property or under common law
pertaining to Hazardous Substances on or originating from any Property; (v)
none of the Company or any Subsidiary has received any notice from any
Governmental Authority (as defined below) claiming any violation of any
Environmental Law applicable to a Property that is uncured or unremediated
as of the date hereof; (vi) no Property is included or, to the knowledge of
the Company and its Subsidiaries, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the United
States Environmental Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability Information System
database maintained by the EPA, and has not otherwise been identified by the
EPA as a potential CERCLA removal, remedial or response site or included or,
to the knowledge of the Company and the Operating Partnerships, proposed for
inclusion on, any similar list of potentially contaminated sites pursuant to
any other applicable Environmental Law nor has the Company or any Subsidiary
received any written notice from the EPA or any other Governmental Authority
proposing the inclusion of any Property on such list; and (vii) there are no
underground storage tanks located on or in any Property which have not been
disclosed to the Representatives.
As used herein: "HAZARDOUS SUBSTANCE" shall include, without limitation, any
hazardous substance, hazardous waste, toxic or dangerous substance, pollutant,
solid waste or similarly designated materials, including, without limitation,
oil, petroleum or any petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, pesticides, explosives, radioactive
materials, dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance, pollutant or waste
identified or regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of Transportation
Optional Hazardous Material Table, 49 C.F.R. Section 172.101, as heretofore
amended, or in the EPA's List of Hazardous Substances and Reportable Quantities,
40 C.F.R. Part 302, as heretofore amended); "ENVIRONMENT" shall mean any surface
water, drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures,
8
and ambient, workplace and indoor air; "ENVIRONMENTAL LAW" shall mean the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et seq.), the
Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.), the Clean Water
Act, as amended (33 U.S.C. Section 1251, et seq.), the Toxic Substances Control
Act, as amended (15 U.S.C. Section 2601, et seq.), the Occupational Safety and
Health Act of 1970, as amended (29 U.S.C. Section 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), and
all other applicable federal, state and local laws, ordinances, regulations,
rules, orders, decisions and permits relating to the protection of the
environment or of human health from environmental effects; "GOVERNMENTAL
AUTHORITY"shall mean any federal, state or local governmental office, agency or
authority having the duty or authority to promulgate, implement or enforce any
Environmental Law; "LIEN" shall mean, with respect to any Property, any
mortgage, deed of trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or affecting such
Property; and "RELEASE" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
emanating or disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of barrels,
containers, tanks (including, without limitation, underground storage tanks) or
other receptacles containing or previously containing any Hazardous Substance or
any release, emission, discharge or similar term, as those terms are defined or
used in any Environmental Law.
The Company and its Subsidiaries (i) are in compliance with any and all
applicable federal, state and local laws and regulations relating to the
protection of occupational health and safety and all Environmental Laws, (ii)
have received all permits, licenses or other approvals required of them under
applicable federal and state occupational safety and health laws and regulations
and Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except in each case where such noncompliance, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a Material Adverse Effect.
There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(xiv) No labor disturbance exists with the employees of the Company or
any of its Subsidiaries or is imminent which, individually or in the
aggregate, would have a Material Adverse Effect. None of the employees of
the Company or any of its Subsidiaries is represented by a union and, to the
best knowledge of the Company and its Subsidiaries, no union organizing
activities are taking place. The Company is not aware of any existing,
threatened or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that could result in a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries has
violated any federal, state or local law or foreign law relating to
discrimination in hiring, promotion or pay of employees, nor any applicable
wage or hour laws, or the rules and regulations thereunder, or analogous
foreign laws and regulations, which might, individually or in the aggregate,
result in a Material Adverse Effect.
(xv) The Company and its Subsidiaries are in compliance in all material
respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company and its Subsidiaries would have any
liability; the Company and its Subsidiaries have not incurred and do not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412
or 4971 of the
9
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "CODE"); and each "pension plan"
for which the Company or any of its Subsidiaries would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects, and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification. Each "pension plan" for which the Company, the Operating
Partnerships or any of their affiliates has any liability or with respect to
which the Company, the Operating Partnerships or any of their affiliates is
a disqualified person (as defined in the Code) or party-in-interest (as
defined in ERISA) has not been a party to any "prohibited transaction" (as
defined in ERISA and the Code), except for such noncompliance, reportable
events, liabilities, or failures to qualify that would not have a Material
Adverse Effect.
(xvi) Except as disclosed in the Prospectus, the Company and each of the
Subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged, including, but not
limited to, directors' and officers' insurance, insurance covering real and
personal property owned or leased by the Company and its Subsidiaries
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force and
effect. Neither the Company nor any of its Subsidiaries has been refused any
insurance coverage sought or applied for, and the Company has no reason to
believe that it and its Subsidiaries will not be able to renew their
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(xvii) Neither the Company nor any of its Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in default or violation
with respect to its Charter or bylaws, the Operating Partnership Agreements
or other governing documents. Neither the Company nor any of its
Subsidiaries is, or with the giving of notice or lapse of time or both would
be, in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound or to which any of the properties or assets
of the Company or any of its Subsidiaries is subject, or in violation of any
statutes, laws, ordinances or governmental rules or regulations or any
orders or decrees to which it is subject, which default or violation,
individually or in the aggregate, would have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has, at any time during the
past five years, (A) made any unlawful contributions to any candidate for
any political office, or failed fully to disclose any contribution in
violation of law, or (B) made any payment to any state, federal or foreign
government official, or other person charged with similar public or
quasi-public duty (other than payment required or permitted by applicable
law).
(xviii) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company or any of
its Subsidiaries is the subject that, if determined adversely to the Company
or any of its Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect or which would materially and adversely affect the
consummation of the transactions contemplated hereby or which is required to
be disclosed in the Prospectus; to the best of the Company's knowledge, no
such proceedings are threatened or contemplated. Any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement are described or filed as required.
(xix) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or
of a "subsidiary company," as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended (the "1935 ACT").
10
(xx) The Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 ACT").
(xxi) PriceWaterhousecoopers LLP, the accounting firm which has certified
the financial statements filed with and as a part of the Registration
Statement, is an independent public accounting firm within the meaning of
the 1933 Act and the 1933 Act Rules and Regulations. The Company and each of
its Subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that: (1) transactions are
executed in accordance with management's general or specific authorizations;
(2) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (3) access to assets
is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accounts for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect thereto. The consolidated financial statements and schedules of the
Company, including the notes thereto, filed with and as a part of the
Registration Statement or Prospectus, are accurate in all material respects
and present fairly the financial condition of the Company and its
Subsidiaries as of the respective dates thereof and the consolidated results
of operations and changes in financial position and consolidated statements
of cash flow for the respective periods covered thereby, all in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved except as otherwise disclosed therein. All
adjustments necessary for a fair presentation of results for such periods
have been made. The selected financial data included in the Registration
Statement and Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements. Any operating or other statistical data included in the
Registration Statement and Prospectus comply in all material respects with
the 1933 Act and the 1933 Act Rules and Regulations and present fairly the
information shown therein. Pro forma financial information included in the
Prospectus has been prepared in accordance with the applicable requirements
of Rules 11-01 and 11-02 of Regulation S-X under the 1933 Act, and the
necessary pro forma adjustments have been properly applied to the historical
amounts in the compilation of such information, and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(xxii) Except as described in the Prospectus, no holder of any security of
the Company has any right to require registration of shares of Common Stock
or any other security of the Company because of the filing of the
Registration Statement or the consummation of the transactions contemplated
hereby and, except as disclosed in the Prospectus, no person has the right
to require registration under the 1933 Act of any shares of Common Stock or
other securities of the Company. All rights of any holders of securities of
the Company or any Operating Partnerships to require registration of shares
of Common Stock because of the filing of the Registration Statement have
been duly and validly waived in accordance with the agreements granting any
such rights. No person has the right, contractual or otherwise, to cause the
Company to permit such person to underwrite the sale of any of the Shares.
Except for this Agreement, there are no contracts, agreements or
understandings between the Company or any of its Subsidiaries and any person
that would give rise to a valid claim against the Company, its Subsidiaries
or any Underwriter for a brokerage commission, finder's fee or like payment
in connection with the issuance, purchase and sale of the Shares.
(xxiii) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date or the Option Closing Date, if any, and (ii)
completion of the distribution of the Shares, will not distribute any
offering material in connection with the offering and sale of the Shares
other than the Registration Statement, the Preliminary Prospectus or the
Prospectus.
11
(xxiv) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of the
Company's Common Stock, and the Company is not aware of any such action
taken or to be taken by affiliates of the Company.
(xxv) The Company is intended to be organized in conformity with the
requirements for qualification as a real estate investment trust under the
Code, and its proposed method of operation will enable it to meet the
requirements for taxation as a real estate investment trust under the Code
for its taxable periods beginning or otherwise including the period after
the Closing Date.
(xxvi) The Company and the Operating Partnerships have complied with all
provisions of Section 517.075, Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba.
(xxvii) No relationship, direct or indirect, exists between or among the
Company or its Subsidiaries on the one hand, and the directors, officers,
stockholders (in the case of the Company), limited partners (in the case of
the Operating Partnerships), customers or suppliers of the Company or its
Subsidiaries on the other hand, which is required to be described in the
Prospectus which is not so described.
(xxviii) The Company and the Subsidiaries are currently in substantial
compliance with all presently applicable provisions of the Americans with
Disabilities Act and no failure of the Company or any Subsidiary to comply
with all presently applicable provisions of the Americans with Disabilities
Act would have a Material Adverse Effect.
(b) Any certificate signed by any officer of the Company and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
5. ADDITIONAL COVENANTS. The Company covenants and agrees with the several
Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and any
amendments or supplements thereto, or a Term Sheet or Abbreviated Term Sheet, as
applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules
and Regulations.
(b) The Company will deliver to each of the Representatives, and to counsel
for the Underwriters (i) four (4) signed copies of the Registration Statement as
originally filed, including copies of exhibits thereto (other than any exhibits
incorporated by reference therein), of any amendments and supplements to the
Registration Statement and (ii) a signed copy of each consent and certificate
included or incorporated by reference in, or filed as an exhibit to, the
Registration Statement as so amended or supplemented. The Company will deliver
to the Underwriters through the Representatives as soon as practicable after the
date of this Agreement as many copies of the Prospectus as the Representatives
may reasonably request for the purposes contemplated by the 1933 Act; if the
Registration Statement is not effective under the 1933 Act, the Company will use
its best efforts to cause the Registration Statement to become effective as
promptly as possible, and it will notify you, promptly after it shall receive
notice thereof, of the time when the Registration Statement has become
effective. The Company will promptly advise the Representatives of any request
of the SEC for amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information, and of the issuance by the SEC or
any state or other jurisdiction or other regulatory body of any stop order under
the 1933 Act or other order suspending the effectiveness of the Registration
Statement (as amended or supplemented) or preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending the qualification or
registration of the Shares for offering or sale in any jurisdiction, and of the
institution or threat of any proceedings therefor, of which the Company shall
have received notice or otherwise have knowledge prior to the completion of the
distribution of the Shares; and the Company will use its best efforts to prevent
the issuance of any such stop order or other order and, if issued, to secure the
prompt removal thereof.
12
(c) The Company will not file any amendment or supplement to the
Registration Statement, the Prospectus (or any other prospectus relating to the
Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that
differs from the Prospectus as filed pursuant to such Rule 424(b)), of which the
Underwriters shall not previously have been advised and furnished with a copy or
to which the Underwriters shall have reasonably objected or which is not in
compliance with the 1933 Act Rules and Regulations; and the Company will
promptly notify you after it shall have received notice thereof of the time when
any amendment to the Registration Statement becomes effective or when any
supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Shares is
required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will comply, at its own expense, with all requirements imposed by the
1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended,
and by the rules and regulations of the SEC thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealing in
the Shares during such period in accordance with the provisions hereof and as
contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the Shares is
required to be delivered under the 1933 Act by any Underwriter or dealer, (i)
any event relating to or affecting the Company or of which the Company shall be
advised in writing by the Representatives shall occur as a result of which, in
the opinion of the Company or the Representatives, the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading or
(ii) it shall be necessary to amend or supplement the Registration Statement or
the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations,
the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith
at its expense prepare and file with the SEC, and furnish to the Representatives
a reasonable number of copies of, such amendment or supplement or other filing
that will correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Shares is
required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as the Representatives may
reasonably designate and will file and make in each year such statements or
reports as are or may be reasonably required by the laws of such jurisdictions;
PROVIDED, HOWEVER, that the Company shall not be required to qualify as a
foreign corporation or shall be required to qualify as a dealer in securities or
to file a general consent to service of process under the laws of any
jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the
1933 Act Rules and Regulations, the Company will make generally available to its
security holders and to holders of the Shares, as soon as practicable, an
earnings statement (which need not be audited) in reasonable detail covering the
12 months beginning not later than the first day of the month next succeeding
the month in which occurred the effective date (within the meaning of Rule 158)
of the Registration Statement.
(h) The Company will furnish to its security holders annual reports
containing financial statements audited by independent public accountants and
quarterly reports containing financial statements and financial information
which may be unaudited. The Company will, for a period of five years from the
Closing Date, deliver to the Underwriters at their principal executive offices a
reasonable number of copies of annual reports, quarterly reports, current
reports and copies of all other documents, reports and information furnished by
the Company to its shareholders or filed with any securities exchange or market
pursuant to the requirements of such exchange or market or with the SEC pursuant
to the 1933 Act or the 1934 Act. The Company will deliver to the Underwriters
similar reports with respect to any significant subsidiaries, as that term is
defined in the 1933 Act Rules and Regulations, which are not consolidated in the
Company's financial statements. Any report, document or other information
required to be furnished
13
under this paragraph (h) shall be furnished as soon as practicable after such
report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions on the Shares, as determined by the Underwriters, and (ii) 180 days
after the Closing Date, the Company will not, without the prior written consent
of the Representatives, offer for sale, sell or enter into any agreement to
sell, or otherwise dispose of, any equity securities of the Company, except for
the Shares.
(j) The Company will apply the proceeds from the sale of the Shares as set
forth in the description under "Use of Proceeds" in the Prospectus, which
description complies in all respects with the requirements of Item 504 of
Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence
to and from, and all documents issued to and by, the SEC in connection with the
registration of the Shares under the 1933 Act.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date),
the Company will furnish to you, as soon as they have been prepared, copies of
any unaudited interim consolidated financial statements of the Company and its
Subsidiaries for any periods subsequent to the periods covered by the financial
statements appearing in the Registration Statement and the Prospectus.
(m) Prior to the Closing Date (and, if applicable, the Option Closing Date),
the Company shall not issue any press releases or other communications directly
or indirectly and will hold no press conferences with respect to the Company or
any of its Subsidiaries, the financial condition, results of operations,
business, properties, assets or liabilities of the Company or any of its
Subsidiaries, or the offering of the Shares, without your prior written consent.
(n) The Company will use its best efforts to obtain approval for, and
maintain the listing of the Shares on, the American Stock Exchange and the
Pacific Stock Exchange.
(o) The Company will cause its directors and officers and each holder of in
excess of shares of Common Stock or securities convertible into or
exercisable or exchangeable for, shares of Common Stock, to furnish to you, on
or prior to the date of this Agreement, a letter or letters, in form and
substance satisfactory to counsel for the Underwriters, pursuant to which each
such person shall agree not to, and the Company will not, directly or
indirectly, offer for sale, contract to sell, sell, distribute, grant any
option, right or warrant to purchase, pledge, hypothecate or otherwise dispose
of any shares of Common Stock, any securities convertible into, or exercisable
or exchangeable for, Common Stock or any other rights to acquire such shares,
for a period of 180 days from the Effective Date (with respect to the officers
and directors) or a period of 90 days from the Effective Date (for the holders
of in excess of shares of Common Stock), without the prior written consent
of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except for the Shares sold hereunder and except
for sales of shares of Common Stock to the Company's employees pursuant to the
exercise of options outstanding on the date hereof under the Company's stock
option plan.
(p) The Company and its Subsidiaries will maintain and keep accurate books
and records reflecting their assets and maintain internal accounting controls
which provide reasonable assurance that (1) transactions are executed in
accordance with management's authorization, (2) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
Subsidiaries, (3) access to the assets of the Company and its Subsidiaries is
permitted only in accordance with management's authorization, and (4) the
recorded accounts of the assets of the Company and its Subsidiaries are compared
with existing assets at reasonable intervals.
(q) [Reserved].
(r) If the Company elects to rely on Rule 462(b) under the 1933 Act, the
Company shall both file an Abbreviated Registration Statement with the SEC in
compliance with Rule 462(b) and pay the applicable
14
fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00
p.m., New York time, on the date of this Agreement, and (ii) the time that
confirmations are given or sent, as specified by Rule 462(b)(2).
(s) If at any time during the 90-day period after the Registration Statement
becomes effective, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus), the Company will, after written notice from you
advising the Company to the effect set forth above, forthwith prepare, consult
with you concerning the substance of, and disseminate a press release or other
public statement, reasonably satisfactory to you, responding to or commenting on
such rumor, publication or event.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters to purchase and pay for the Shares, as provided herein, shall be
subject to the accuracy, as of the date hereof and as of the Closing Date (and,
if applicable, the Option Closing Date), of the representations and warranties
of the Company and the Operating Partnership contained herein, to the
performance by the Company of its covenants and obligations hereunder, and to
the following additional conditions:
(a) The Registration Statement and all post-effective amendments thereto
shall have become effective not later than 1:00 p.m., New York time, on the date
hereof, or, with your consent, at a later date and time, not later than 1:00
p.m., New York time, on the first business day following the date hereof, or at
such later date and time as may be approved by the Representatives; if the
Company has elected to rely on Rule 462(b) under the 1933 Act, the Abbreviated
Registration Statement shall have become effective not later than the earlier of
(x) 10:00 p.m. New York time, on the date hereof, or (y) at such later date and
time as may be approved by the Representatives. All filings required by Rule 424
and Rule 430A of the 1933 Act Rules and Regulations shall have been made. No
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceeding for that
purpose shall have been initiated or, to the knowledge of the Company or any
Underwriter, threatened or contemplated by the SEC, and any request of the SEC
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the reasonable
satisfaction of the Underwriters.
(b) No Underwriter shall have advised the Company on or prior to the Closing
Date (and, if applicable, the Option Closing Date), that the Registration
Statement or Prospectus or any amendment or supplement thereto contains an
untrue statement of fact which, in the opinion of counsel to the Underwriters,
is material, or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of McCutchen, Doyle, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP,
counsel for the Company, addressed to you and dated the Closing Date (and, if
applicable, the Option Closing Date), to the effect that:
(i) The Registration Statement and all post-effective amendments thereto
and the Abbreviated Registration Statement, if any, have become effective
under the 1933 Act; any required filing of the Prospectus or any supplement
thereto pursuant to Rule 424(b) or otherwise has been made in the manner and
within the time period required thereby; and, to the knowledge of such
counsel after due inquiry, no stop or other order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act or under the securities laws of any
jurisdiction.
(ii) The Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or issue date,
comply as to form and appear on their face to be appropriately responsive in
all material respects to the requirements of Form S-11 under the 1933 Act
15
and the applicable 1933 Act Rules and Regulations (except that such counsel
need express no opinion as to the financial statements or other financial
data).
(iii) [the Units to be issued in connection with the transactions
contemplated by the Prospectus, including, without limitation, the Units to
be issued to the Company, have been, assuming the due authorization by the
Company in its capacity as the sole general partner of the Operating
Partnerships, duly authorized for issuance by the Operating Partnership to
the holders or prospective holders thereof, and at the Closing Date will be
validly issued and fully paid. Immediately after the Closing Date,
Units will be issued and outstanding. The Units have been and
will be offered and sold on or prior to the Closing Date in compliance with
all federal and California securities laws;]
(iv) assuming due authorization, execution and delivery by the parties
thereto (other than ), each of the: (i) Acquisition Agreement,
dated as of May 14, 1998 filed as Exhibit 10.4.1 to the Registration
Statement, (ii) Amendment to Acquisition Agreement, dated as of July 1, 1998
filed as Exhibit 10.4.2 to the Registration Statement, (iii) Pending
Projects Acquisition Agreement filed as Exhibit 10.6 to the Registration
Statement, (iv) ▇▇▇▇ Land Holdings Option Agreement filed as Exhibit 10.7 to
the Registration Statement and (v) [Amendment No. 1 to the ▇▇▇▇ Land
Holdings Option Agreement] filed as Exhibit to the Registration Statement
is a valid and binding agreement of the Company and the Operating
Partnerships, enforceable against them in accordance with their terms,
except as enforceability may be limited by the Exceptions;
(v) Each of the Operating Partnerships is a limited partnership duly
formed and existing under and by virtue of the laws of the State of Delaware
and is in good standing under the Delaware Revised Uniform Limited
Partnership Act with partnership power and authority to own, lease and
operate its properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into and
perform its obligations under the Underwriting Agreement. Each of the
Operating Partnerships is duly qualified or registered as a foreign
partnership and is in good standing in California and is in good standing in
each other jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or be registered
or to be in good standing in such other jurisdiction would not have a
Material Adverse Effect. The Company is the sole general partner of each of
the Operating Partnerships and, immediately after the Closing Date will be
the sole general partner of each of the Operating Partnerships and will own
outstanding partnership interests in the Operating Partnerships as set forth
in the Prospectus;
(vi) the Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect;
(vii) Other than the Operating Partnerships, the Corporate Subsidiaries
are the only subsidiaries, direct or indirect, of the Company. Each
Corporate Subsidiary has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of California, has
the corporate power and authority to own its property and to conduct its
business. Each Corporate Subsidiary is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect. The Company
owns, directly or indirectly through other subsidiaries, all of the
outstanding shares of capital stock or other securities evidencing equity
ownership of such Corporate Subsidiaries, and all such securities have been
duly authorized and validly issued, are fully paid and non-assessable and,
to the knowledge of such counsel, are owned by the Company free and clear of
any mortgage, pledge, lien, encumbrance, charge or adverse claim and are not
the subject of any agreement or understanding with any person, and were not
issued in violation of any preemptive or similar rights; and, to the
16
knowledge of such counsel, except as disclosed in the Prospectus, there are
no outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale, or instruments related to or entitling any
person to purchase or otherwise acquire any shares of, or any security
convertible into or exercisable or exchangeable for, any such shares of
capital stock or other ownership interest of any of such subsidiaries.
(viii) The issuance and sale of the Shares and the execution, delivery and
performance by the Company of this Agreement, and the consummation of the
transactions herein contemplated, (A) will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any properties or assets of the Company or any of its
subsidiaries under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel after due inquiry to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the
properties or assets of the Company or any of its Subsidiaries is subject,
except to such extent as, individually or in the aggregate, does not have a
Material Adverse Effect, (B) will not result in any violation of the
provisions of the charter, by-laws, certificate of limited partnership,
partnership agreement or other organizational documents of the Operating
Partnerships or any Corporate Subsidiary, as the case may be and (C) will
not, to the best of such counsel's knowledge, result in any violation of any
statute, rule, regulation or other law (including the federal securities
laws, California law and the General Corporation Law of the State of
Delaware), or any order or judgment known to such counsel after due inquiry,
of any court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties.
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required in connection with the execution, delivery and performance of this
Agreement, and the issuance and sale of the Shares or the consummation of
the transactions contemplated hereby, except such as may be required under
the 1933 Act or the 1933 Act Rules and Regulations and have been obtained,
or as may be required by the NASD or under state securities or blue sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters. Each of the Company and its Subsidiaries has filed all Notices
pursuant to, and has obtained all Approvals required to be obtained under,
and has otherwise complied with all requirements of, all applicable laws and
regulations in connection with the issuance and sale of the Shares, in each
case with such exceptions, individually or in the aggregate, as would not
affect the validity of the Shares, their issuance or the transactions
contemplated hereby or have a Material Adverse Effect; and no such Notices
or Approvals are required to be filed or obtained by the Company or any of
its Subsidiaries in connection with the execution, delivery and performance
of this Agreement, the issuance and sale of the Shares or the transactions
contemplated hereby, in each case with such exceptions, individually or in
the aggregate, as would not affect the validity of the Shares, their
issuance or the transactions contemplated hereby or have a Material Adverse
Effect.
(x) the statements (A) in the Prospectus under the captions "Risk
Factors," "Business-- Acquiring Properties Developed by the ▇▇▇▇ Group,"
"Properties--Microsoft Properties, --Apple Properties, --▇▇▇▇▇▇ Properties
and --Cisco Properties," "Certain Transactions," "Operating Partnership
Agreements," "Federal Income Tax Consequences," "ERISA Considerations" and
"Underwriters" and (B) in the Registration Statement in Items 33 and 34, in
each case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein.
(xi) To the knowledge of such counsel after due inquiry and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Subsidiaries is a
party or of which any property of the Company or any of its Subsidiaries is
the
17
subject that, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
Subsidiaries taken as a whole; and, to the knowledge of such counsel after
due inquiry, no such proceedings are threatened by governmental authorities
or threatened by others.
(xii) Each of the Operating Partnerships is and will be treated as a
partnership for federal income tax purposes.
(xiii) To the knowledge of such counsel, the Company and each of its
Subsidiaries hold all licenses, certificates, permits and approvals from all
state, federal and other regulatory authorities, and have satisfied in all
material respects the requirements imposed by regulatory bodies,
administrative agencies or other governmental bodies, agencies or officials,
that are required for the Company and its Subsidiaries lawfully to own,
lease and operate its properties and conduct its business as described in
the Prospectus, and, to the knowledge of such counsel after due inquiry,
each of the Company and its Subsidiaries is conducting its business in
compliance in all material respects with all of the laws, rules and
regulations of each jurisdiction in which it conducts its business.
(xiv) Commencing with the Company's taxable year ending December 31,
1999, the Company is organized in conformity with the requirements for
qualification as a "real estate investment trust" under the Code, and its
proposed method of operation will enable the Company to meet the
requirements for qualification and taxation as such a real estate investment
trust.
(xv) Neither the Company nor any of its Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in default or violation
with respect to its Charter or bylaws or applicable Operating Partnership
Agreement. To the knowledge of such counsel, none of the Company nor any of
its Subsidiaries is, or with the giving of notice or lapse of time or both
would be, in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound or to which any of the
properties or assets of the Company or any of its Subsidiaries is subject,
or in violation of any statutes, laws, ordinances or governmental rules or
regulations or any orders or decrees to which it is subject, and neither the
Company nor any of its Subsidiaries has failed to obtain any other license,
permit, franchise, easement, consent, or other governmental authorization
necessary to the ownership, leasing and operation of its properties or to
the conduct of its business, which default, violation or failure,
individually or in the aggregate, would have a Material Adverse Effect.
(xvi) To the knowledge of such counsel, (A) there are no material
(individually, or in the aggregate) legal, governmental or regulatory
proceedings pending or threatened to which the Company or any of its
Subsidiaries is a party or of which the business or properties of the
Company or any of its Subsidiaries is the subject which are not disclosed in
the Registration Statement and Prospectus; (B) there are no contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement which are not described or filed as required; and (C) there are no
statutes, ordinances, laws, rules or regulations required to be described in
the Registration Statement or Prospectus which are not described as
required.
(xvii) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or
of a "subsidiary company," as such terms are defined in the 1935 Act.
18
(xviii) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
1940 Act.
(xix) All the outstanding shares of capital stock of the Company were
issued and sold in compliance with all applicable federal and state
securities laws.
(xx) To the knowledge of such counsel after due inquiry and except as
disclosed in the Prospectus, no holder of any security of the Company has
any right to require registration of shares of Common Stock or any other
security of the Company because of the filing of the Registration Statement
or the consummation of the transactions contemplated hereby and, except as
disclosed in the Prospectus, no person has the right to require registration
under the 1933 Act of any shares of Common Stock or other securities of the
Company.
Such counsel shall confirm that during the preparation of the Registration
Statement and Prospectus, such counsel participated in conferences with the
Representatives and their counsel and with officers and representatives of the
Company and its independent accountants, at which conferences the contents of
the Registration Statement and the Prospectus were discussed, reviewed and
revised. On the basis of the information which was developed in the course
thereof, considered in light of such counsel's understanding of applicable law
and the experience gained by such counsel through their practice thereunder,
without such counsel assuming responsibility for the accuracy and completeness
of such statements except to the extent expressly provided above, such counsel
shall confirm that nothing came to their attention that would lead them to
believe that either the Registration Statement, as of the Effective Date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
the Prospectus or any amendment or supplement thereto as of its respective issue
date and as of the Closing Date, or, if applicable, the Option Closing Date,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (other than the financial statements or other
financial data as to which such counsel need express no opinion).
In rendering the foregoing opinion, such counsel may rely, (1) as to matters
involving laws of any jurisdictions other than the States of California and
Delaware or the United States, upon opinions addressed to the Underwriters of
other counsel satisfactory to them and ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, and (2) as
to all matters of fact, upon certificates and written statements of the
executive officers of, and accountants for, the Company, provided, in either
case, that such counsel shall state in their opinion that they and the
Underwriters are justified in relying thereon.
(d) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll LLP,
special Maryland counsel for the Company, addressed to you and dated the Closing
Date (and, if applicable, the Option Closing Date), to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Maryland, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement to which it is a party;
(ii) the authorized capital stock of the Company conforms as to legal
matters to the description thereof' contained in the Prospectus;
(iii) the shares of Common Stock outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and
non-assessable, and are not subject to preemptive or other similar rights
arising by operation of the MGCL or under the Charter or bylaws of the
Company or any agreement or other instrument known to such counsel;
19
(iv) the Shares have been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, against payment of the
agreed consideration, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any preemptive or
similar rights arising by operation of the MGCL or under the Charter or
bylaws of the Company or any agreement or other instrument known to such
counsel;
(v) this Agreement has been duly authorized, executed and delivered by
the Company in its individual capacity and in its capacity as the general
partner of the Operating Partnerships;
(vi) the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby, (A)
will not contravene any provision of the MGCL, (B) will not result in any
violation of the provisions of the Charter or by-laws of the Company and (C)
will not, to the best of such counsel's knowledge, result in any violation
of any order, rule, regulation or decree of any court or governmental agency
or authority of the State of Maryland issued under or pursuant to the MGCL
and applicable to the properties, assets or businesses owned or proposed to
be owned by the Company;
(vii) the Company has duly authorized and reserved a number of shares of
Common Stock for issuance upon redemption of outstanding Units issued by the
Operating Partnerships as contemplated by the Operating Partnership
Agreements and for issuance upon the exercise of options under the Company's
1997 Stock Option Plan which is not less than the number of outstanding
Units and the number of options issuable under the aforesaid Plan, as of the
Closing Date;
(viii) no consent, approval, authorization, order of or qualification with
any court or governmental agency or authority of the State of Maryland is
required to be obtained by the Company or any Subsidiary under the MGCL in
connection with the offering, issuance or sale of the Shares under this
Agreement except for such as have been obtained;
(ix) the form of certificate used to evidence the Shares is in due and
proper form and complies in all material respects with all applicable
statutory requirements under the laws of the State of Maryland;
(x) the information in the Prospectus under the caption "Description of
Capital Stock" (except for the information under the subsection thereof
entitled "Restrictions on Ownership and Transfer"), to the extent that it
constitutes matters of Maryland Law, summaries of legal matters, documents
or proceedings, or legal conclusions, has been reviewed by them and is
correct in all material respects, and the information under "Description of
Capital Stock--Restrictions on Ownership and Transfer," to the extent that
it constitutes a summary of the provisions of the Company's Charter, has
been reviewed by them and is correct in all material respects; the
provisions of the Company's Charter described under "Description of Capital
Stock--Restrictions on Ownership and Transfer" are enforceable against the
Company in accordance with Maryland law.
(e) You shall have received on the Closing Date (and, if applicable, the
Option Closing Date), from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters, such opinion or opinions, dated the Closing Date (and, if
applicable, the Option Closing Date) with respect to such matters as you may
reasonably require; and the Company shall have furnished to such counsel such
documents as they reasonably request for the purposes of enabling them to review
or pass on the matters referred to in this Section 6 and in order to evidence
the accuracy, completeness and satisfaction of the representations, warranties
and conditions herein contained.
(f) You shall have received at or prior to the Closing Date from ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP a memorandum or memoranda, in form and substance
satisfactory to you, with respect to the qualification for offering and sale by
the Underwriters of the Shares under state securities or Blue Sky laws of such
jurisdictions as the Underwriters may have designated to the Company.
20
(g) On the business day immediately preceding the date of this Agreement and
on the Closing Date (and, if applicable, the Option Closing Date), you shall
have received from PriceWaterhousecoopers LLP, a letter or letters, dated the
date of this Agreement and the Closing Date (and, if applicable, the Option
Closing Date), respectively, in form and substance satisfactory to you,
confirming that they are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the published Rules and
Regulations, and stating to the effect set forth in Schedule II hereto.
(h) Except as contemplated in the Prospectus, (i) neither the Company nor
any of its Subsidiaries shall have sustained since the date of the latest
audited financial statements included or in the Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and (ii) subsequent to the respective
dates as of which information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its Subsidiaries shall have incurred
any liability or obligation, direct or contingent, or entered into any
transactions, and there shall not have been any change in the capital stock or
short-term or long-term debt of the Company and its Subsidiaries or any change,
or any development involving or which might reasonably be expected to involve a
prospective change in the condition (financial or other), net worth, business,
affairs, management, prospects, results of operations or cash flow of the
Company or its Subsidiaries, the effect of which, in any such case described in
clause (i) or (ii), is in your judgment so material or adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered on such Closing Date (and, if applicable, the
Option Closing Date) on the terms and in the manner contemplated in the
Prospectus.
(i) [Reserved]
(j) There shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or The Nasdaq National Market or the
establishing on such exchanges or market by the SEC or by such exchanges or
markets of minimum or maximum prices which are not in force and effect on the
date hereof; (ii) a suspension or material limitation in trading in the
Company's securities on the American Stock Exchange or the Pacific Stock
Exchange or the establishing on such exchange by the SEC or by such exchange of
minimum or maximum prices which are not in force and effect on the date hereof;
(iii) a general moratorium on commercial banking activities declared by either
federal or any state authorities; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, which in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares in
the manner contemplated in the Prospectus; or (v) any calamity or crisis, change
in national, international or world affairs, act of God, change in the
international or domestic markets, or change in the existing financial,
political or economic conditions in the United States or elsewhere, which in
your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares in the manner contemplated in the
Prospectus.
(k) You shall have received certificates, dated the Closing Date (and, if
applicable, the Option Closing Date) and signed by the President and the Vice
President of Finance of the Company, in their capacities as such, stating that:
(i) the condition set forth in Section 6(a) has been fully satisfied;
(ii) they have carefully examined the Registration Statement and the
Prospectus as amended or supplemented and nothing has come to their
attention that would lead them to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto as of
their respective effective, issue or filing dates, contained, and the
Prospectus as amended or supplemented, at such Closing Date, contains any
untrue statement of a material fact, or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
21
(iii) since the Effective Date, there has occurred no event required to
be set forth in an amendment or supplement to the Registration Statement or
the Prospectus which has not been so set forth;
(iv) all representations and warranties made herein by the Company are
true and correct at such Closing Date, with the same effect as if made on
and as of such Closing Date, and all agreements herein to be performed or
complied with by the Company on or prior to such Closing Date have been duly
performed and complied with by the Company;
(v) neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree;
(vi) except as disclosed in the Prospectus, subsequent to the respective
dates as of which information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, other than in the ordinary
course of business, or entered into any transactions not in the ordinary
course of business, which in either case are material to the Company or such
subsidiary; and there has not been any change in the capital stock or
material increase in the short-term debt or long-term debt of the Company or
any of its subsidiaries or any material adverse change or any development
involving or which may reasonably be expected to involve a prospective
material adverse change, in the condition (financial or other), net worth,
business, affairs, management, prospects, results of operations or cash flow
of the Company and its subsidiaries taken as a whole; and there has been no
dividend or distribution of any kind, paid or made by the Company on any
class of its capital stock or by any Operating Partnership with respect to
any Units;
(vii) there has not been any change or decrease specified in paragraph
[5(a)] of the letter or letters delivered to the Underwriters referred to in
Section 6(g) above, except those changes and decreases that are disclosed
therein; and
(viii) covering such other matters as you may reasonably request.
(l) [Reserved]
(m) The Company and each of the Operating Partnerships shall not have
failed, refused, or been unable, at or prior to the Closing Date (and, if
applicable, the Option Closing Date) to have performed any agreement on their
part to be performed or any of the conditions herein contained and required to
be performed or satisfied by them at or prior to such Closing Date.
(n) The Company and the Operating Partnerships shall have furnished to you
at the Closing Date (and, if applicable, the Option Closing Date) such further
information, opinions, certificates, letters and documents as you may have
reasonably requested.
(o) The Shares shall have been approved for trading upon official notice of
issuance on the American Stock Exchange and the Pacific Stock Exchange.
(p) You shall have received duly and validly executed letter agreements
referred to in Section 5(m) hereof.
All such opinions, certificates, letters and documents will be in compliance
with the provisions hereof only if they are satisfactory in form and substance
to you and to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the several Underwriters.
The Company will furnish you with such signed and conformed copies of such
opinions, certificates, letters and documents as you may request.
22
If any of the conditions specified above in this Section 6 shall not have
been satisfied at or prior to the Closing Date (and, if applicable, the Option
Closing Date) or waived by you in writing, this Agreement may be terminated by
you on notice to the Company and the Selling Shareholders.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and each of the
Operating Partnerships jointly and severally will indemnify and hold harmless
each Underwriter for and against any losses, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the 1933 Act or
otherwise, insofar as such losses, damages or liabilities (or actions or claims
in respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Shares, or any amendment or supplement thereto, or in any blue
sky application or other document executed by the Company or based on any
information furnished in writing by the Company, filed in any state or other
jurisdiction in order to qualify any or all of the Shares under the securities
laws thereof (the "BLUE SKY APPLICATION"), or (ii) 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 will reimburse each
Underwriter for any legal or other expenses incurred by such Underwriter in
connection with investigating, preparing, pursuing or defending against or
appearing as a third party witness in connection with any such loss, damage,
liability or action or claim, including, without limitation, any investigation
or proceeding by any governmental agency or body, commenced or threatened,
including the reasonable fees and expenses of counsel to the indemnified party,
as such expenses are incurred (including such losses, damages, liabilities or
expenses to the extent of the aggregate amount paid in settlement of any such
action or claim, provided that (subject to Section 7(d) hereof) any such
settlement is effected with the written consent of the Company); PROVIDED,
HOWEVER, that the Company and the Operating Partnerships shall not be liable in
any such case to the extent, but only to the extent, that any such loss, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Shares, or any such amendment or supplement, in reliance upon
and in conformity with written information relating to the Underwriter furnished
to the Company by you or by any Underwriter through you, expressly for use in
the preparation thereof (as provided in Section 14 hereof).
(b) [Reserved]
(c) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company and each Operating Partnership for and against any
losses, damages or liabilities to which the Company or Operating Partnership
may become subject, under the 1933 Act or otherwise, insofar as such losses,
damages or liabilities (or actions or claims in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Shares, or
any amendment or supplement thereto, or any Blue Sky Application, or arise
out of are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating to
the Shares, or any such amendment or supplement, or any Blue Sky
Application, in reliance upon and in conformity with written information
relating to the Underwriter furnished to the Company by you or by any
Underwriter through you, expressly for use in the preparation thereof (as
provided in Section 14 hereof), and will reimburse the Company or any such
Operating Partnership for any legal or other expenses incurred by the
Company or any such Operating Partnership, as the case may be, in connection
with investigating or defending any such action or claim as such expenses
are incurred (including such losses, damages, liabilities or expenses to the
extent of the aggregate amount paid in settlement of any such action or
claim, provided that (subject to Section 7(d) hereof) any such settlement is
effected with the written consent of the Underwriters).
23
(d) Promptly after receipt by an indemnified party under Section 7(a) or
7(c) hereof of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under Section 7(a) or 7(c) hereof, notify each such
indemnifying party in writing of the commencement thereof, but the failure
so to notify such indemnifying party shall not relieve such indemnifying
party from any liability except to the extent that it has been prejudiced in
any material respect by such failure or from any liability that it may have
to any such indemnified party otherwise than under Section 7(a) or 7(c)
hereof. In case any such action shall be brought against any such
indemnified party and it shall notify each indemnifying party of the
commencement thereof, each such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party under Section 7(a) or 7(c) hereof similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of such
indemnified party, be counsel to such indemnifying party), and, after notice
from such indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party under Section 7(a) or 7(c) hereof for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. The indemnified party shall
have the right to employ its own counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party at the
expense of the indemnifying party has been authorized by the indemnifying
party, (ii) the indemnified party shall have been advised by such counsel
that there may be a conflict of interest between the indemnifying party and
the indemnified party in the conduct of the defense, or certain aspects of
the defense, of such action (in which case the indemnifying party shall not
have the right to direct the defense of such action with respect to those
matters or aspects of the defense on which a conflict exists or may exist on
behalf of the indemnified party) or (iii) the indemnifying party shall not
in fact have employed counsel reasonably satisfactory to such indemnified
party to assume the defense of such action, in any of which events such fees
and expenses to the extent applicable shall be borne, and shall be paid as
incurred, by the indemnifying party. If at any time such indemnified party
shall have requested such indemnifying party under Section 7(a) or 7(c)
hereof to reimburse such indemnified party for fees and expenses of counsel,
such indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 7(a) or 7(c) hereof effected without its
written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of such request for reimbursement,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request for reimbursement prior to the date of
such settlement. No such indemnifying party shall, without the written
consent of such indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not such indemnified party
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (A) includes an unconditional release of
such indemnified party from all liability arising out of such action or
claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any such indemnified
party. In no event shall such indemnifying parties be liable for the fees
and expenses of more than one counsel, including any local counsel, for all
such indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(e) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to indemnify or hold harmless an indemnified party under
Section 7(a) or 7(c) hereof in respect of any losses, damages or liabilities
(or actions or claims in respect thereof) referred to therein, then each
indemnifying party under Section 7(a) or 7(c) hereof shall contribute to the
amount paid or payable
24
by such indemnified party as a result of such losses, damages or liabilities
(or actions or claims in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnerships, on the one hand, and the Underwriters, on the other
hand, from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under Section
7(d) hereof and such indemnifying party was prejudiced in a material respect
by such failure, then each such indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault, as applicable, of the Company and the Operating Partnerships, on the
one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions that resulted in such losses, damages or liabilities
(or actions or claims in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by, as applicable,
the Company and the Operating Partnerships, on the one hand, and the
Underwriters, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company and the Operating Partnerships bear to the
total underwriting discounts and commissions received by the Underwriters.
The relative fault, as applicable, of the Company or the Operating
Partnerships, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Operating Partnerships, on the one hand, or the Underwriters,
on the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company, the Operating Partnerships and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 7(e) were determined by PRO RATA allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to above in this Section 7(e). The amount paid or
payable by such an indemnified party as a result of the losses, damages or
liabilities (or actions or claims in respect thereof) referred to above in
this Section 7(e) shall be deemed to include any legal or other expenses
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7(e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
Section 7(e) to contribute are several in proportion to their respective
underwriting obligations with respect to the Shares and not joint.
(f) The obligations of the Company and the Operating Partnerships under
this Section 7 shall be in addition to any liability that the Company and
the Operating Partnerships may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director, employee, agent or
other representative and to each person, if any, who controls any
Underwriter within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company who
signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the 1933 Act and to each person, if any,
who controls the Operating Partnerships within the meaning of the 1933 Act.
(g) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof, including, without limitation,
the provisions of this Section 7, and are fully informed regarding such
25
provisions. They further acknowledge that the provisions of this Section 7
fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, and any supplement or amendment thereof, as
required by the 1933 Act.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. The respective
representations, warranties, agreements and statements of the Company and the
Operating Partnerships and the Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, the Company or any of
its officers, directors or any controlling persons, or the Operating
Partnerships, shall survive delivery of and payment for the Shares hereunder.
9. SUBSTITUTION OF UNDERWRITERS. (a) If any Underwriter shall default in
its obligation to purchase the Shares which it has agreed to purchase hereunder,
you may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or parties reasonably
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notify you that they
have so arranged for the purchase of such Shares, you or the Company shall have
the right to postpone the Closing Date for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "UNDERWRITER" as used in this Agreement shall include
any persons substituted under this Section 9 with like effect as if such person
had originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you and the
Company as provided in subsection (a) above, the aggregate number of Shares
which remains unpurchased does not exceed one-eleventh of the total Shares
to be sold on the Closing Date, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the Shares which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Shares which such Underwriter agreed to purchase hereunder) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you and the
Company as provided in subsection (a) above, the number of Shares which
remains unpurchased exceeds one-eleventh of the total Shares to be sold on
the Closing Date, or if the Company shall not exercise the right described
in subsection (b) above to require the non-defaulting Underwriters to
purchase Shares of the defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Option Closing Date, the obligations of
the Underwriters to purchase and of the Company to sell the Option Shares)
shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company except for the expenses to be
borne by the Company and the Underwriters as provided in Section 11 hereof
and the indemnity and contribution agreements in Section 7 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. EFFECTIVE DATE AND TERMINATION. (a) This Agreement shall become
effective at 1:00 p.m., New York time, on the first business day following the
effective date of the Registration Statement, or at such
26
earlier time after the effective date of the Registration Statement as you in
your discretion shall first release the Shares for offering to the public;
provided, however, that the provisions of Section 7 and 11 shall at all times be
effective. For the purposes of this Section 10(a), the Shares shall be deemed to
have been released to the public upon release by you of the publication of a
newspaper advertisement relating to the Shares or upon release of telegrams,
facsimile transmissions or letters offering the Shares for sale to securities
dealers, whichever shall first occur.
(b) This Agreement may be terminated by you at any time before it
becomes effective in accordance with Section 10(a) by notice to the Company
and the Selling Shareholders; provided, however, that the provisions of this
Section 10 and of Section 7 and Section 11 hereof shall at all times be
effective. In the event of any termination of this Agreement pursuant to
Section 9 or this Section 10(b) hereof, the Company shall not then be under
any liability to any Underwriter except as provided in Section 7 or Section
11 hereof.
(c) This Agreement may be terminated by you at any time at or prior to
the Closing Date by notice to the Company if any condition specified in
Section 6 hereof shall not have been satisfied on or prior to the Closing
Date. Any such termination shall be without liability of any party to any
other party except as provided in Sections 7 and 11 hereof.
(d) This Agreement also may be terminated by you by notice to the
Company as to any obligation of the Underwriters to purchase the Option
Shares, if any condition specified in Section 6 hereof shall not have been
satisfied at or prior to the Option Closing Date or as provided in Section 9
of this Agreement.
If you terminate this Agreement as provided in Sections 10(b), 10(c) or
10(d), you shall notify the Company by telephone or telegram, confirmed by
letter.
11. COSTS AND EXPENSES. The Company, whether or not the transactions
contemplated hereby are consummated or this Agreement is prevented from becoming
effective under Section 10 hereof or is terminated, will bear and pay the costs
and expenses incident to the registration of the Shares and public offering
thereof, including, without limitation, (a) all expenses (including stock
transfer taxes) incurred in connection with the delivery to the several
Underwriters of the Shares, the filing fees of the SEC, the fees and expenses of
the Company's counsel and accountants and the fees and expenses of counsel for
the Company, (b) the preparation, printing, filing, delivery and shipping of the
Registration Statement, each Preliminary Prospectus, the Prospectus and any
amendments or supplements thereto (except as otherwise expressly provided in
Section 5(d) hereof) and, if applicable, the printing, delivery and shipping of
this Agreement and other underwriting documents, including the Agreement Among
Underwriters, the Selected Dealer Agreement, Underwriters' Questionnaires and
Powers of Attorney and Blue Sky Memoranda, and any instruments or documents
related to any of the foregoing, (c) the furnishing of copies of such documents
(except as otherwise expressly provided in Section 5(d) hereof) to the
Underwriters, (d) the registration or qualification of the Shares for offering
and sale under the securities laws of the various states and other
jurisdictions, including the fees and disbursements of counsel to the
Underwriters relating to such registration or qualification and in connection
with preparing any Blue Sky Memoranda or related analysis, (e) the filing fees
of the NASD (if any) and fees and disbursements of counsel to the Underwriters
relating to any review of the offering by the NASD, (f) all printing and
engraving costs related to preparation of the certificates for the Shares,
including transfer agent and registrar fees, (g) all fees and expenses relating
to the listing of the Shares for trading on the American Stock Exchange and the
Pacific Stock Exchange, (h) all travel expenses, including air fare and
accommodation expenses, of representatives of the Company in connection with the
offering of the Shares, and (i) all of the other costs and expenses incident to
the performance by the Company of the registration and offering of the Shares;
provided, that the Underwriters will bear and pay the fees and expenses of the
Underwriters' counsel (except as provided in this Section 11), the Underwriters'
out-of-pocket expenses, and any advertising costs and expenses incurred by the
Underwriters incident to the public offering of the Shares.
27
If this Agreement is terminated by you in accordance with the provisions of
Section 10(c), the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of counsel to the
Underwriters.
12. [Reserved]
13. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Director, Corporate Finance,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to , Attention: General
Counsel, facsimile number [(314) - ], or if sent to the Company shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
to the Company at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile
number (408) - . Notice to any Underwriter pursuant to Section 7 shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
to such Underwriter's address as it appears in the Underwriters' Questionnaire
furnished in connection with the offering of the Shares or as otherwise
furnished to the Company.
14. INFORMATION FURNISHED BY UNDERWRITERS. The statements in the first,
third, seventh and eighth paragraphs under the caption "Underwriting" in the
Prospectus constitute the only information furnished by or on behalf of the
Underwriters through you as such information is referred to in Section 4(a)(ii)
and Section 7 hereof.
15. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company, the Operating Partnerships and, to the
extent provided in Sections 7 and 8, the officers and directors of the Company
and each person who controls the Company, any Operating Partnership or any
Underwriter and their respective heirs, executors, administrators, successors
and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, corporation or other entity any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and their respective successors and assigns and said controlling
persons and said officers and directors, and for the benefit of no other person,
corporation or other entity. No purchaser of any of the Shares from any
Underwriter shall be construed a successor or assign by reason merely of such
purchase.
In all dealings hereunder, you shall act on behalf of each of the several
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by you jointly or by ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. on behalf of you as the
representatives, as if the same shall have been made or given in writing by the
Underwriters.
16. COUNTERPARTS. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
17. PRONOUNS. Whenever a pronoun of any gender or number is used herein,
it shall, where appropriate, be deemed to include any other gender and number.
18. TIME OF ESSENCE. Time shall be of the essence of this Agreement.
19. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri, without giving effect to the
choice of law or conflict of laws principles thereof.
28
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company, each of the Operating
Partnerships and the Underwriters.
MISSION WEST PROPERTIES, INC.
By:
-----------------------------------------
Name:
Title
MISSION WEST PROPERTIES, L.P.
MISSION WEST PROPERTIES, L.P. I
MISSION WEST PROPERTIES, ▇.▇. ▇▇
MISSION WEST PROPERTIES, L.P. III
By: Mission West Properties, Inc.,
as General Partner
By: -------------------------------------
Name:
Title
Accepted in St. Louis,
Missouri as of the date
first above written, on
behalf of ourselves and each
of the several Underwriters
named in Schedule II hereto.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
SUTRO & CO. INCORPORATED
As Representatives of the Several
Underwriters named on Schedule I hereto
By: ▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By:
-----------------------------------------
Title:
----------------------------------------
29
