Exhibit 35
EXECUTION COPY
Regency Centers Corporation
18,596,832 Shares*
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
June 18, 2003
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
As Representatives of the several Underwriters,
Ladies and Gentlemen:
Security Capital Group Incorporated, a corporation organized under the laws
of the State of Maryland (the "Selling Stockholder") and, through its
subsidiary, Security Capital Shopping Mall Business Trust (the "Trust"), a
shareholder of Regency Centers Corporation, a Florida corporation (the
"Company"), which is the general partner of Regency Centers, L.P., a Delaware
limited partnership (the "Partnership"), proposes to sell through the Trust to
the several underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, 6,876,832 shares
of Common Stock, $0.01 par value ("Common Stock") of the Company (said shares to
be sold by the Selling Stockholder being hereinafter called the "Underwritten
Securities"). The Trust has entered into a separate forward stock purchase
agreement individually with each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("MLI"), with
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated acting as agent, JPMorgan
Chase Bank ("JPMorgan"), with ▇.▇. ▇▇▇▇▇▇ Securities Inc. acting as agent, and
Wachovia Bank, National Association ("Wachovia", and together with MLI and
JPMorgan, the "Forward Counterparties"), with Wachovia Securities, LLC acting as
agent, dated the date hereof
-------------------
* Plus an option to purchase from Security Capital Group Incorporated up to
2,789,524 additional shares to cover over-allotments.
(each, a "Forward Purchase Contract"). In connection therewith, the Forward
Counterparties propose to effect sales of a number of shares of Common Stock
equal to the initial Base Amount (as defined in the Confirmation) (the "Hedge
Securities"). The Trust also has entered into related supplemental securities
loan agreements with each Forward Counterparty or an affiliate thereof (each, a
"Stock Loan Agreement") and a stock lending agency agreement with UBS Securities
LLC (the "Agency Agreement"). In addition, the Selling Stockholder proposes to
grant to the Underwriters an option to purchase up to 2,789,524 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities and the Hedge
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of any Preliminary Prospectus or
the Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
Underwriter and each Forward Counterparty as set forth below in this
Section 1(a).
(i) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (file number 333-105408) on Form S-3, including a related
preliminary prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or more
amendments thereto, including a related preliminary prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement, (including the form of final prospectus)
or (2) after the Effective Date of such registration statement, a
final prospectus in accordance with Rules 430A and 424(b). In the case
of clause (2), the Company has included in such
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registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Prospectus as of the Effective Date. As filed, such amendment and
form of final prospectus, or such final prospectus, shall contain all
Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein (excluding Exchange Act filings incorporated therein by
reference).
(ii) On the Effective Date, the Registration Statement (and any
amendment or supplement thereto) did or will, and when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any amendments or supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement (and any amendment or supplement thereto) did
not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and,
on the Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date and any settlement date, the Prospectus
(together with any amendment or supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties in this paragraph (ii) as to the information contained in
or omitted from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with the Selling Stockholder Information or other information
furnished in writing to the Company by or on behalf of any Underwriter
or Forward Counterparty through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and no order preventing or
suspending the use of the Registration Statement has been issued by
the Commission;
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
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case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
the Selling Stockholder Information or other information furnished in
writing to the Company by the Forward Counterparty or an Underwriter
through the Representatives expressly for use in the Prospectus as
amended or supplemented;
(iv) Neither the Company nor any of its subsidiaries, including
the Partnership, has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, as amended or supplemented; and, since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock
or partnership interests of the Company or any of its subsidiaries
(including the Partnership) (other than issuances of capital stock or
partnership interests in connection with employee benefit plans,
dividend reinvestment plans, the exercise of options, the exchange of
Partnership units and the payment of earn-outs pursuant to contractual
commitments) or in the partners' capital of the Partnership or any of
its subsidiaries, any change in mortgage loans payable or long-term
debt of the Company or any of its subsidiaries (including the
Partnership) in excess of $20,000,000 or in the mortgage loans payable
or long-term debt of the Partnership or any of its subsidiaries or any
material adverse change in excess of $20,000,000, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity,
partners' capital or results of operations of the Company and its
subsidiaries (including the Partnership), otherwise than as set forth
or contemplated in the Prospectus;
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(v) The Company and its subsidiaries (including the Partnership)
have good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries (including the Partnership); and any real property and
buildings held under lease by the Company and its subsidiaries
(including the Partnership) are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries (including
the Partnership);
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, as
amended or supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; the
Partnership has been duly organized and is validly existing in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and conduct its business as described
in the Prospectus, as amended or supplemented, and has been duly
qualified as a foreign partnership for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
incorporated or organized and is validly existing as a corporation or
other entity in good standing under the laws of its jurisdiction of
incorporation or organization;
(vii) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid
and non assessable; the capital stock of the Company conforms in all
material respects to the description thereof in the Prospectus, as
amended or supplemented; and, except as set forth on Exhibit A, all of
the issued shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non assessable and (except as set forth on
Exhibit A and directors'
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qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims; all of
the issued partnership interests of the Partnership have been duly and
validly authorized and issued and are fully paid and non assessable;
(viii) The Securities have been duly and validly authorized and
issued and are fully paid and non-assessable; and the Securities
conform to the description thereof contained in the Registration
Statement and the Prospectus, as amended or supplemented;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) None of the transactions contemplated by this Agreement
(excluding the Forward Purchase Contracts and the Stock Loan
Agreements) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including,
without limitation, Regulations T, U, and X of the Board of Governors
of the Federal Reserve System;
(xi) Prior to the date hereof, neither the Company nor any of its
affiliates (including the Partnership) has taken any action which is
designed to or which has constituted or which might have been expected
to cause or result in stabilization or manipulation of the price of
any security of the Company in connection with the offering of the
Securities;
(xii) The execution and delivery by the Company of this
Agreement, the compliance by the Company with all of the provisions
hereof and the consummation of the transactions by the Company herein
contemplated, and, to its knowledge, the sale of the Securities and
the compliance by the Company with all of the provisions of the
Securities and the consummation of the transactions by the parties
other than the Company herein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, (i) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries (including the Partnership) is a
party or by which the Company or any of its subsidiaries (including
the Partnership) is bound or to which any of the property or assets of
the Company or any of its subsidiaries (including the Partnership) is
subject, (ii) the provisions of the Articles of Incorporation (other
than Sections 5.2(a), (b), (c) and (f) of the Articles of
Incorporation to the extent addressed by paragraph (xix) below) or
By-laws of the Company, the Certificate of Limited Partnership or
partnership agreement of the Partnership or (iii) any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the
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Company or any of its subsidiaries (including the Partnership) or any
of their properties other than, in the case of clauses (i) and (iii),
such breaches or violation which, if determined adversely to the
Company, would not reasonably be expected to have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been, or will have
been prior to the Closing Date (as defined in Section 3 hereof),
obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws or the rules of the National Association
of Securities Dealers Inc. or the New York Stock Exchange, Inc. in
connection with the purchase and distribution of the Securities by the
Underwriters;
(xiii) Neither the Company nor any of its subsidiaries (including
the Partnership) is in violation of its Articles of Incorporation,
By-laws, Certificate of Limited Partnership or partnership agreement
or in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(xiv) The statements set forth in the Registration Statement and
the Prospectus under the captions "Description of the Capital Stock",
"Federal Income Tax Considerations" and "Plan of Distribution" (other
than the Selling Stockholder Information and other information
furnished in writing to the Company by or on behalf of any Underwriter
or Forward Counterparty) and the statements set forth in the
Prospectus Supplement under caption "Underwriting" (other than the
Selling Stockholder Information and other information furnished in
writing to the Company by or on behalf of any Underwriter or Forward
Counterparty) are, insofar as such statements constitute a summary of
the terms of the Securities and the laws and documents referred to
therein, accurate and complete in all material respects;
(xv) Other than as set forth in the Prospectus, as amended or
supplemented, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries (including the
Partnership) is a party or of which any property of the Company or any
of its subsidiaries (including the Partnership) is the subject which,
if determined adversely to
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the Company or any of its subsidiaries (including the Partnership),
would individually or in the aggregate have a material adverse effect
on the current or future financial position, stockholders' equity,
partners' capital or results of operations of the Company and its
subsidiaries (including the Partnership); and, to the best of the
Company's knowledge and the Partnership's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(xvi) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code, for
each of the fiscal years from its inception through the most recently
completed fiscal year and the Company's present and contemplated
organization, ownership, method of operation, assets and income,
taking into account the consummation of the transactions contemplated
herein, are such that the Company is in a position under present law
to so qualify for the current fiscal year and in the future;
(xvii) Neither the Company nor the Partnership has knowledge of
(a) the presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the properties owned by it in violation of law
or in excess of regulatory action levels or (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or off such properties as a
result of any construction on or operation and use of such properties,
which presence or occurrence would materially adversely affect the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company or the Partnership; and in
connection with the construction on or operation and use of the
properties owned by the Company and the Partnership, neither has any
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regulations, agency
requirements, ordinances and administrative and judicial orders;
(xviii) The various actions of the Company's Board of Directors
waiving the Ownership Limit (as defined by the Company's Articles of
Incorporation) for the Selling Stockholder, the Underwriters and the
Forward Counterparties, as set forth in the resolutions adopted June
11, 2003 (together, the "Board Action"), were duly authorized, are
legal, valid and binding on the Company and remain in full force and
effect as of the date hereof;
(xix) This Agreement and the Confirmations (i) will not result in
a violation by the Underwriters or the Forward Counterparties and
their affiliates of the 7 % Ownership Limit for Common Stock that are
the
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subject of this Agreement and the Confirmations (including, for this
purpose, Common Stock loaned to the Forward Counterparties in
connection with the Confirmations), other than Common Stock, if any,
constituting more than 9.8% by value of the Company's outstanding
capital stock (after giving effect to any Common Stock repurchased by
the Company pursuant to the purchase and sale agreement between the
Company and the Selling Stockholder with respect to $150,000,000 of
Common Stock) during the applicable term of this Agreement and the
Confirmations; provided that no Person (as defined in the Company's
Articles of Incorporation) who is an individual as defined in section
542(a)(2) of the Code (as modified by section 856(h) of the Code)
becomes the Beneficial Owner (as defined in the Company's Articles of
Incorporation) of more than 9.8% by value of the Company's capital
stock solely by reason of directly or indirectly acquiring ownership
of capital stock of the applicable Underwriter or Forward Counterparty
(disregarding any shares of the Company's capital stock other than
those owned by the applicable Underwriter or Forward Counterparty and
their subsidiaries); and provided, further, that the percentage limits
referred to herein shall be adjusted upward appropriately in the event
of any repurchases of Common Stock by the Company other than
repurchases pursuant to the purchase and sale agreement between the
Company and the Selling Stockholder referred to herein; and (ii) will
not result in a violation by the Underwriters or the Forward
Counterparties and their affiliates of the Related Tenant Limit (as
defined by the Company's Articles of Incorporation) for the number of
Common Stock that are the subject of this Agreement and the
Confirmations (including, for this purpose, Common Stock loaned to the
Forward Counterparties in connection with this Agreement and the
Confirmations), unless and except to the extent that (1) an
Underwriter or a Forward Counterparty and its affiliates directly own
or Constructively Own (as defined by the Company's Articles of
Incorporation, but without regard to this Agreement and the
Confirmations) Common Stock that constitutes more than 9.8% by value
of the Company's outstanding capital stock (after giving effect to any
Common Stock repurchased by the Company pursuant to the purchase and
sale agreement referred to herein) less the number of Common Stock
subject to this Agreement and the Confirmations entered into by such
Underwriter or Forward Counterparty and its affiliates during the
applicable term of this Agreement and the Confirmations or (2) the
Common Stock subject to this Agreement and the Confirmations entered
into by an Underwriter or a Forward Counterparty and its affiliates
during the applicable term of this Agreement and the Confirmations
exceeds 9.8% by value of the Company's outstanding capital stock
(after giving effect to any Common Stock repurchased by the Company
pursuant to the purchase and sale agreement referred to herein).;
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(xx) Neither the Company nor the Partnership is, and after giving
effect to the offering and sale of the Securities, will be an
"investment company", or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act; and
(xxi) KPMG LLP, who have certified certain financial statements
of the Company and its subsidiaries and the Partnership and its
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter and to each Forward
Counterparty.
(b) The Selling Stockholder represents and warrants to, and agrees
with, each Underwriter and Forward Counterparty that:
(i) The Selling Stockholder has a security entitlement (within
the meaning of Section 8-102(a)(17) of the UCC) to the Securities
maintained in a securities account on the books of UBS Financial
Services Inc. free and clear of all liens, encumbrances, equities and
claims, and, upon payment for the Underwritten Securities as provided
in this Agreement and the crediting of such shares on the books of DTC
to the securities accounts (within the meaning of Section 8-501 of the
UCC) of the various Underwriters (assuming that each of the
Underwriters lacks notice of any "adverse claim" (within the meaning
of Section 8-102 of the UCC) to the Securities), (A) each of the
Underwriters will acquire valid "security entitlements" in respect of
the Underwritten Securities purchased by such Underwriter (within the
meaning of Section 8-102 of the UCC) and (B) no action based on any
"adverse claim" (within the meaning of Section 8-102 of the UCC) to
the Underwritten Securities, whether framed in conversion, replevin,
constructive trust, equitable lien or other theory, may be asserted
against any of the Underwriters with respect to such security
entitlements;
(ii) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder; assuming due authorization,
execution and delivery by the other parties hereto, this Agreement
constitutes and, upon execution and delivery of the Confirmations, the
Confirmations will constitute, valid and legally binding agreements of
the Selling Stockholder enforceable against the Selling Stockholder in
accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general
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applicability relating to or affecting creditors' rights and to
general equity principles;
(iii) The Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities;
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder of the transactions contemplated herein have been
obtained, except (1) such as may have been obtained under the Act, (2)
such as may be required to be obtained by the Company or the
Underwriters under the rules of the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, and (3) such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals as have been obtained; and
(v) Neither the sale of the Securities being sold by the Selling
Stockholder nor the consummation of any other of the transactions
herein contemplated by the Selling Stockholder or the fulfillment of
the terms hereof by the Selling Stockholder will conflict with, result
in a breach or violation of, or constitute a default under (i) any law
applicable to the Selling Stockholder, (ii) the charter or by-laws of
the Selling Stockholder or (iii) the terms of any indenture or other
agreement or instrument to which the Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to the Selling Stockholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Selling Stockholder or any
of its subsidiaries, other than, in the case of clauses (i) and (iii),
such breaches or violation which, if determined adversely to the
Selling Stockholder, would not reasonably be expected to have a
material adverse effect on the consummation of the transactions
contemplated herein.
(vi) In respect of any statements in or omissions from the
Registration Statement or the Prospectus or any amendments or
supplements thereto made in reliance upon and in conformity with the
Selling Stockholder Information, the Selling Stockholder hereby makes
the same representations and warranties to each Underwriter as the
Company makes to such Underwriter under paragraph (a)(ii) of this
Section (excluding any proviso); and
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(vii) The execution and delivery of the Forward Purchase
Contracts do not, and the performance of the Forward Purchase
Contracts by the parties thereto in accordance with their respective
terms will not, violate Section 7 of the Exchange Act or Regulations
T, U or X of the Board of Governors of the Federal Reserve System; and
the execution and delivery of the Stock Loan Agreements do not, and
the performance of the Stock Loan Agreements by the parties thereto in
accordance with their respective terms and the Agency Agreement will
not, violate Section 7 of the Exchange Act or Regulations T, U or X of
the Board of Governors of the Federal Reserve System.
Any certificate signed by any officer of the Selling Stockholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Selling Stockholder, as to matters covered thereby, to each
Underwriter and to each Forward Counterparty.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder
agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Selling Stockholder, at a purchase
price of $31.1355 per share, the amount of the Underwritten Securities set
forth opposite such Underwriter's name in Schedule I hereto; and (ii)
subject to the terms conditions and in reliance upon the representations
and warranties herein set forth, each Forward Counterparty, severally and
not jointly, agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from
each Forward Counterparty, at a purchase price of $31.1355 per share, that
proportion of the number of the Hedge Securities set forth opposite the
name of such Forward Counterparty in Schedule II which the number of
Underwritten Securities set forth in Schedule I hereto set forth opposite
the name of each Underwriter bears to the total number of Underwritten
Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder
hereby grants an option to the several Underwriters to purchase, severally
and not jointly, up to 2,789,524 Option Securities at the same purchase
price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in
the sale of the Underwritten Securities by the Underwriters. Said option
may be exercised in whole or in part at any time on or before the 30th day
after the date of the Prospectus upon written or telegraphic notice by the
Representatives to the Selling Stockholder setting forth the number of
shares of the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The number of shares of the
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by
12
the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities, the Hedge Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the
third Business Day prior to the Closing Date) shall be made at 10:00 AM, New
York City time, on June 24, 2003, or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives, the Forward Counterparties and the Selling Stockholder or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase price thereof to or upon
the order of: (a) in the case of the Underwritten Securities, and the Option
Securities, the Selling Stockholder; and (b) in the case of the Hedge
Securities, the Forward Counterparties, in each case by wire transfer payable in
same-day funds to an account specified by the recipient. Delivery of the
Underwritten Securities, the Option Securities and the Hedge Securities shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
The Selling Stockholder will pay all applicable state transfer taxes, if
any, involved in the transfer to the several Underwriters of the Securities to
be purchased by them from the Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers by them.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Selling Stockholder will
deliver the Option Securities (at the expense of the Selling Stockholder) to the
Representatives, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Selling Stockholder by wire transfer payable in same-day funds to an account
specified by the Selling Stockholder. If settlement for the Option Securities
occurs after the Closing Date, the Company and the Selling Stockholder will
deliver to the Representatives on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
13
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
5. Agreements.
(a) The Company agrees with the several Underwriters and the Selling
Stockholder that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement (excluding filings under the
Exchange Act incorporated by reference into the Registration
Statement) or amendment or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any amendment or
supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when
the Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the Prospectus, and any
amendment or supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or
become effective, (4) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any amendment or supplement to the
Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
14
(ii) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or amend or
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company promptly will (1)
notify the Representatives and the Selling Stockholder of such event,
(2) prepare and file with the Commission, subject to the second
sentence of paragraph (i) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (3) supply any amended or supplemented Prospectus
to you in such quantities as you may reasonably request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Company will furnish to the Representatives, the Selling
Stockholder and counsel for the Underwriters and the Selling
Stockholder, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request.
(v) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(vi) The Company will not, and will use its good faith efforts to
cause any other holder of Common Stock not to, without the prior
written
15
consent of the Representatives, offer, sell, contract to sell, pledge,
or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
subsidiary of the Company or any person in privity with the Company or
any subsidiary of the Company), directly or indirectly, under any
registration statement filed with the Commission or prospectus
supplement relating to an existing shelf registration filed with the
Commission (other than pursuant to registration statements in effect
on the date hereof for the benefit of selling shareholders
thereunder), any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of
Common Stock or publicly announce an intention to effect any such
transaction, for a period of 90 days after the date of the
Underwriting Agreement; provided, however, that the Company may issue
or sell Common Stock (i) pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time, (ii) upon the conversion of securities
or the exercise of warrants outstanding at the Execution Time, (iii)
upon the redemption of limited partnership units of any subsidiary of
the Company outstanding at the Execution Time, (iv) in connection with
the transactions contemplated in this Underwriting Agreement,
including the forward stock purchase and stock loan agreements with
the Forward Counterparties, and (v) pursuant to an offering by
Citigroup Global Markets Holdings Inc. of debt securities exchangeable
into Common Stock and related forward purchase contracts and stock
loan agreements.
(vii) The Company will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Sarbanes Oxley Act, and to use its reasonable best
efforts to cause the Company's directors and officers, in their
capacities as such, to comply with such laws, rules and regulations,
including, without limitation, the provisions of the Sarbanes Oxley
Act.
(viii) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(b) The Selling Stockholder agrees with the several Underwriters and
the Company that:
16
(i) The Selling Stockholder will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge,
or otherwise dispose of, or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise), directly or
indirectly, any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of
Common Stock by the Selling Stockholder or any subsidiary of the
Selling Stockholder or any person in privity of contract pursuant to a
contract relating to the disposition of such shares or securities or
transactions which are designed to, or might reasonably be expected
to, result in the disposition of such shares or securities with the
Selling Stockholder or any subsidiary of the Selling Stockholder,
including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange
Act; or publicly announce an intention to effect any such transaction
(other than the forward sales agreements with the Forward
Counterparties and related stock loan agreements contemplated in this
Agreement or the offering by Citigroup Global Markets Holdings Inc. of
debt securities exchangeable into Common Stock and related forward
purchase contracts and stock loan agreements), for a period of 90 days
after the date of the Underwriting Agreement.
(ii) The Selling Stockholder will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(iii) The Selling Stockholder will advise the Representatives
promptly, and if requested by you, will confirm such advice in
writing, so long as delivery of a prospectus relating to the
Securities by an underwriter or dealer may be required under the Act,
of (i) any change in information in the Registration Statement or the
Prospectus relating to the Selling Stockholder or (ii) any new
material information relating to the Company or relating to any matter
stated in the Prospectus which comes to the attention of the Selling
Stockholder.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities, the Option Securities
and the Hedge Securities, as the case may be, shall be subject to the accuracy
of the representations and warranties on the part of the Company and the Selling
Stockholder
17
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the statements of the
Company and the Selling Stockholder made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Selling Stockholder
of their respective obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any amendment or supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such amendment or
supplement, will be filed in the manner and within the time period required
by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Company, to have furnished to the Representatives and the
Forward Counterparties their opinion, dated the Closing Date and addressed
to the Representatives and the Forward Counterparties, to the effect that:
(i) each of the Company and its subsidiaries, including the
Partnership, has been duly incorporated and is validly existing as a
corporation or other organization in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification and is
subject to no material liability or disability by reason of the
failure to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or partnership
interests of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth on Exhibit A or in the Prospectus, as
amended or supplemented, all outstanding shares of capital stock or
partnership interests of such subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear of
any perfected security
18
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock, including the
Securities, have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities are duly listed, and
admitted and authorized for trading on the New York Stock Exchange;
the certificates for the Securities are in valid and sufficient form;
other than the Selling Stockholder, the holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities arising by operation of
law or the Company's articles of incorporation or By-laws, or, to the
knowledge of such counsel, under any agreement by which the Company is
bound; and, except as set forth in the Prospectus, as amended or
supplemented, to the knowledge of such counsel, no options, warrants
or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company
are outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document relating to the Company or its
subsidiaries of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
statements included or incorporated by reference in the Prospectus
under the headings "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Securities, and
under the headings "Federal Income Tax Considerations" and "Plan of
Distribution" (other than the Selling Stockholder Information) insofar
as such statements summarize legal matters, agreements to which the
Company is a party, documents or proceedings discussed therein, are
accurate and fair summaries of such terms, legal matters, agreements,
documents or proceedings;
(v) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any amendments or
supplements thereto, pursuant to Rule 424(b) has been made in the
manner
19
and within the time period required by Rule 424(b); to the knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion), each as amended or
supplemented, comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and although counsel assumes no
responsibility for the accuracy, completeness or fairness of
statements made therein except to the extent set forth in paragraph
(iv) above, such counsel has no reason to believe that on the
Effective Date or the date the Registration Statement was last deemed
amended the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date and on the Closing
Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the offering
and sale of the Securities as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company Act of
1940, as amended;
(viii) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required to be obtained
by the Company in connection with the transactions contemplated
herein, except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(ix) the execution and delivery by the Company of this Agreement,
its compliance with all of the provisions hereof and the consummation
by the Company of any of the transactions herein contemplated, and, to
the knowledge of such counsel, the sale of the
20
Securities being sold by the Selling Stockholder and the consummation
by the parties other than the Company of any of the transactions
herein contemplated, will not conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or its subsidiaries pursuant to,
(i) the charter (other than Sections 5.2(a), (b), (c) and (f) of the
Articles of Incorporation to the extent addressed by paragraph (xiii)
below) or by-laws of the Company or its subsidiaries, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument known to such counsel and to which the Company
or any of its subsidiaries (including the Partnership) is a party or
bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree known to
such counsel to be applicable to the Company or its subsidiaries
(including the Partnership) of any court, regulatory body,
administrative agency, governmental body or arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties other than, in the case of clauses (ii)
and (iii), such breaches or violation which, if determined adversely
to the Company, would not reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein;
(x) to such counsel's knowledge no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement; and
(xi) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code for
each taxable year since its inception through the most recently
completed fiscal year, and based on assumptions set forth in the
Prospectus and certain representations of the Company, including but
not limited to those set forth in an Officer's Certificate, the
Company's present and contemplated organization, ownership, method of
operation, assets and income are such that the Company is in a
position under present law to so qualify for the current fiscal year
and in the future.
(xii) The various actions of the Company's Board of Directors
waiving the Ownership Limit (as defined by the Company's Articles of
Incorporation) for the Selling Stockholder, the Underwriters and the
Forward Counterparties, as set forth in the resolutions adopted June
11, 2003 (together, the "Board Action"), were duly authorized, are
legal, valid
21
and binding on the Company and remain in full force and effect as of
the date hereof.
(xiii) This Agreement and the Confirmations (i) will not result
in a violation by the Underwriters or the Forward Counterparties and
their affiliates of the 7% Ownership Limit for Common Stock that are
the subject of this Agreement and the Confirmations (including, for
this purpose, Common Stock loaned to the Forward Counterparties in
connection with this Agreement and the Confirmations), other than
Common Stock, if any, constituting more than 9.8% by value of the
Company's outstanding capital stock (after giving effect to any Common
Stock repurchased by the Company pursuant to the purchase and sale
agreement between the Company and the Selling Stockholder with respect
to $150,000,000 of Common Stock) during the applicable term of this
Agreement and the Confirmations; provided that no Person (as defined
in the Company's Articles of Incorporation) who is an individual as
defined in section 542(a)(2) of the Code (as modified by section
856(h) of the Code) becomes the Beneficial Owner (as defined in the
Company's Articles of Incorporation) of more than 9.8% by value of the
Company's capital stock solely by reason of directly or indirectly
acquiring ownership of capital stock of the applicable Underwriter or
Forward Counterparty (disregarding any shares of the Company's capital
stock other than those owned by the applicable Underwriter or Forward
Counterparty and their subsidiaries); and provided, further, that the
percentage limits referred to herein shall be adjusted upward
appropriately in the event of any repurchases of Common Stock by the
Company other than repurchases pursuant to the purchase and sale
agreement between the Company and the Selling Stockholder referred to
herein; and (ii) will not result in a violation by the Underwriters or
the Forward Counterparties and their affiliates of the Related Tenant
Limit (as defined by the Company's Articles of Incorporation) for the
number of Common Stock that are the subject of this Agreement and the
Confirmations (including, for this purpose, Common Stock loaned to the
Forward Counterparties in connection with this Agreement and the
Confirmations), unless and except to the extent that (1) an
Underwriter or a Forward Counterparty and its affiliates directly own
or Constructively Own (as defined by the Company's Articles of
Incorporation, but without regard to this Agreement and the
Confirmations) Common Stock that constitute more than 9.8% by value of
the Company's outstanding capital stock (after giving effect to any
Common Stock repurchased by the Company pursuant to the purchase and
sale agreement referred to herein) less the number of Common Stock
subject to this Agreement and the Confirmations entered into by such
Underwriter or Forward Counterparty and its affiliates during the
applicable term of this Agreement and the Confirmations or (2) the
22
Common Stock subject to this Agreement and the Confirmations entered
into by an Underwriter or a Forward Counterparty and their affiliates
during the applicable term of this Agreement and the Confirmations
exceeds 9.8% by value of the Company's outstanding capital stock
(after giving effect to any Common Stock repurchased by the Company
pursuant to the purchase and sale agreement referred to herein);
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Florida or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this
paragraph (b) shall also include any amendments or supplements thereto at
the Closing Date.
(c) The Selling Stockholder shall have requested and caused ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., counsel for the Selling Stockholder, to have furnished to
the Representatives and the Forward Counterparties their opinion, dated the
Closing Date and addressed to the Representatives and the Forward
Counterparties, to the effect that:
(i) upon payment for the Undewritten Securities as provided in
this Agreement and the crediting of such shares on the books of DTC to
the securities accounts (within the meaning of Section 8-501 of the
UCC) of the various Underwriters (assuming that each of the
Underwriters lacks notice of any "adverse claims" (within the meaning
of Section 8-102 of the UCC) to the Underwritten Securities, (A) the
Underwriters will acquire valid security entitlements in respect of
the Underwritten Securities (within the meaning of Section 8-102 of
the UCC) and (B) no action based on any "adverse claims" (within the
meaning of Section 8-102 of the UCC) to the Underwritten Securities,
whether framed in conversion, replevin, constructive trust, equitable
lien or other theory, may be asserted against any of the Underwriters
with respect to such security entitlements; and
(ii) the statements in the (A) second full paragraph under the
caption "Prospectus Supplement Summary-The Offering-Concurrent
Offering" and "The Offering-Concurrent Offering", (B) ninth full
paragraph under the caption "Selling Shareholder" in the Prospectus
Supplement and (C) fifth (excluding the last two sentences thereof)
and seventh full paragraphs under the caption "Underwriting", to the
extent that such statements summarize the provisions of the agreements
or
23
documents identified therein, have been reviewed by us, and are
correct in all material respects; and
(iii) the Forward Purchase Contracts and the Stock Loan
Agreements do not, and the performance of the obligations thereunder,
all in accordance with the terms of the Forward Purchase Contracts,
the Stock Loan Agreements and the Agency Agreement, will not violate
Section 7 of the Exchange Act or Regulations T, U and X of the Board
of Governors of the Federal Reserve System.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(d) The Selling Stockholder shall have requested and caused ▇▇▇▇▇▇▇
▇▇▇▇▇, General Counsel of the Selling Stockholder, to have furnished to the
Representatives and the Forward Counterparties his opinion, dated the
Closing Date and addressed to the Representatives and the Forward
Counterparties, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and the Selling Stockholder has
full legal right and authority to sell, transfer and deliver the
Securities in the manner provided in this Agreement; and
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder of the transactions contemplated herein, except
such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained; and
(iii) neither the sale of the Securities being sold by the
Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by the Selling Stockholder or the
fulfillment of the terms hereof by the Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law (excluding Section 7 of the Exchange Act and
Regulations T, U and X of the Board of Governors of the Federal
Reserve System) or the charter or By-laws of the Selling Stockholder
or the terms of any indenture or other agreement or instrument known
to such counsel and to which the Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
known to such counsel to be applicable to the Selling Stockholder or
24
any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Selling Stockholder or any of its subsidiaries.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent he deems proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(e) The Representatives and the Forward Counterparties shall have
received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities,
the Registration Statement, the Prospectus (together with any amendment or
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company and the Selling Stockholder shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives and the
Forward Counterparties a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or accounting
officer of the Company or two other authorized signatories, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
amendments or supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any amendment or supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any amendment or supplement thereto).
25
(g) The Selling Stockholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Selling
Stockholder or two other authorized signatories, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any amendment or supplement to the
Prospectus and this Agreement and that the representations and warranties
of the Selling Stockholder in this Agreement are true and correct in all
material respects on and as of the Closing Date to the same effect as if
made on the Closing Date.
(h) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives and the Selling Stockholder, at the
Execution Time and at the Closing Date, letters, dated respectively as of
the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the unaudited interim
financial information of the Company for the three-month period ended March
31, 2003, and as at March 31, 2003 in accordance with Statement on Auditing
Standards No. 100, and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and, if applicable, pro forma financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited interim
financial information for the three-month period ended March 31, 2003,
and as at March 31, 2003, incorporated by reference in the
Registration Statement and the Prospectus; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive, audit and investment
committees of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
26
transactions and events subsequent to December 31, 2003, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects with
applicable accounting requirements of the Act and with the
related rules and regulations adopted by the Commission with
respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to March 31, 2003,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the consolidated capital
stock (other than issuances of capital stock in connection with
dividend reinvestment plans, upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any increase
in the consolidated mortgage loans payable or long-term debt of
the Company and its subsidiaries or the Partnership and its
subsidiaries, or any decreases in total assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the amounts shown on the March 31, 2003
consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus, or for the
period from April 1, 2003 to such specified date there were any
decreases, as compared with the comparable period of the
preceding year consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by
27
the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the information included or incorporated by reference in
the Registration Statement and Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information set forth
under the captions "Selected Consolidated Financial Data" in the
Prospectus and the information included or incorporated by reference
in Items 1, 6 and 7 of the Company's Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions
of legal interpretation.
References to the Prospectus in this paragraph (g) include any
amendment or supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any amendment or
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (g) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any amendment or supplement thereto) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the
28
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any amendment or supplement thereto).
(j) Prior to the Closing Date, the Company and the Selling Stockholder
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating.
(l) At the Execution Time, the Company shall have used good faith
effort to furnish to the Representatives a letter substantially in the form
of Exhibit B hereto from each executive officer and director of the Company
addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement
shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company and the Selling Stockholder in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
7. Expenses. The Company and the Selling Stockholder covenant and agree
with each of the several Underwriters and each of the several Forward
Counterparties that, whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, (i) the Selling
Stockholder will pay or cause to be paid all registration, filing and stock
exchange or National Association of Securities Dealers fees, all fees and
expenses of complying with securities or blue sky laws, all printing expenses,
messenger and delivery expenses, any fees and disbursements of any counsel
retained by the Selling Stockholder, all underwriting discounts and commissions
and transfer taxes, if any, and any premiums and other costs of policies of
insurance obtained by the Selling Stockholder against liabilities arising out of
the public offering of the Securities and (ii) the Company will pay or cause to
be paid the fees and disbursements of counsel and independent public accountants
for the Company incurred in connection with the registration of the Securities
under the Act, including the expenses of any special audits or "cold comfort"
letters required by or incident to such registration, and any premiums and other
costs of policies of insurance obtained by the Company
29
against liabilities arising out of the sale of the Securities; provided that the
Selling Stockholder shall reimburse the Company for the first $25,000 of fees
and disbursements of counsel and independent public accountants for the Company
included in connection with the registration of the Securities; provided,
however, that the Underwriters agree to pay the Selling Stockholder up to an
amount as agreed by the Underwriters and the Selling Stockholder in
reimbursement of such expenses. It is understood, however, that, except as
provided in this Section and Section 8 hereof, the Underwriters and the Forward
Counterparties will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Selling
Stockholder, each Underwriter and each Forward Counterparty, the directors,
officers, employees and agents of the Selling Stockholder, each Underwriter
and each Forward Counterparty and each person who controls the Selling
Stockholder or any Underwriter or Forward Counterparty within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by the Selling Stockholder or on behalf of any Underwriter or
Forward Counterparty through the Representatives specifically for inclusion
therein; provided, further, that with respect to any untrue statement or
omission of material fact made in any Preliminary Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of
any Underwriter from whom the person asserting any such loss, claim, damage
or liability purchased the securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such
person, (y) the untrue statement or omission of a material fact contained
in the
30
Preliminary Prospectus was corrected in the Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation
of the sale of such securities to such person, a copy of the Prospectus.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Selling Stockholder agrees to indemnify and hold harmless the
Company, each Underwriter and Forward Counterparty, the directors,
officers, employees and agents of the Company, each Underwriter and Forward
Counterparty, and each person who controls the Company or any Underwriter
or Forward Counterparty within the meaning of either the Act or the
Exchange Act to the same extent (excluding any provisos) as the foregoing
indemnity from the Company in Section 8(a), but only with reference to
written information furnished to the Company by or on behalf of the Selling
Stockholder specifically for the inclusion in the documents referred to in
the foregoing indemnity (the "Selling Stockholder Information"). The
Company, the Forward Counterparties and the Underwriters acknowledge that
the statements identified in writing to the Company constitute the only
information furnished in writing by or on behalf of the Selling Stockholder
for inclusion in any Preliminary Prospectus or the Prospectus.
(c) Each Forward Counterparty severally and not jointly agrees to
indemnify and hold harmless the Company, the Selling Stockholder, the
Underwriters, the directors, officers employees and agents of the Company,
the Selling Stockholder and each Underwriter, and each person who controls
the Company, the Selling Stockholder or any Underwriter within the meaning
of either the Act or the Exchange Act, to the same extent (excluding any
provisos) as the foregoing indemnity from the Company in Section 8(a), but
only with reference to written information relating to such Forward
Counterparty furnished to the Company by or on behalf of such Forward
Counterparty through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Forward Counterparty may
otherwise have. The Company, the Selling Stockholder and the Underwriters
acknowledge that the statements identified in writing to the Company
constitute the only information furnished in writing by or on behalf of the
several Forward Counterparties for inclusion in any Preliminary Prospectus
or the Prospectus.
(d) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, the Selling Stockholder, the Forward
Counterparties, the directors, officers employees and agents of the
Company, the Selling Stockholder and each Forward Counterparty, and each
person who controls the Company, the Selling Stockholder or any Forward
Counterparty within the meaning of either the Act or the Exchange Act, to
the same extent (excluding any provisos) as the foregoing indemnity from
the Company in Section 8(a), but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for inclusion in
the documents referred to in the
31
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company, the
Selling Stockholder and the Forward Counterparties acknowledge that the
statements identified in writing to the Company constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Prospectus.
(e) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a), (b), (c) or (d)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a), (b), (c) or
(d) above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of one such separate counsel (regardless of the number of indemnified
parties) if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
32
(f) In the event that the indemnity provided in paragraph (a), (b),
(c), (d) or (e) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the Selling
Stockholder, the Underwriters and the Forward Counterparties severally
agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company, the Selling Stockholder, and one or more of the
Underwriters and Forward Counterparties may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties,
respectively, from the offering of the Securities; provided, however, that
in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder (with, for purposes of this sentence only, each Forward
Counterparty being considered a single entity with its affiliated
Underwriter with aggregate responsibility not in excess of the underwriting
discount or commission applicable to the Securities purchased by such
affiliated Underwriter hereunder). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties,
respectively, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Selling Stockholder shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses)
received by the Selling Stockholder plus the total Settlement Amount
received or reasonably expected to be received by the Selling Stockholder
as of the Maturity Date (as such Terms are defined in the Confirmation),
and benefits received by the Underwriters and Forward Counterparties shall
be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
provided by the Company, the Selling Stockholder, the Underwriters or the
Forward Counterparties, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Selling Stockholder, the
Forward Counterparties and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter, a
Forward Counterparty or the Selling Stockholder within the meaning of
33
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter, a Forward Counterparty or the Selling Stockholder
shall have the same rights to contribution as such Underwriter, Forward
Counterparty or Selling Stockholder, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this paragraph (e).
(g) The liability of the Selling Stockholder under the Selling
Stockholder's representations and warranties contained in Section 1(b)
hereof and under the indemnity and contribution agreements contained in
this Section 8 shall be limited to an amount equal to total net proceeds
from the offering (before deducting expenses) received by the Selling
Stockholder plus the total Settlement Amount received or reasonably
expected to be received by the Selling Stockholder as of the Maturity Date
(as such Terms are defined in the Confirmation). The Company and the
Selling Stockholder may agree, as among themselves and without limiting the
rights of the Underwriters under this Agreement, as to the respective
amounts of such liability for which they each shall be responsible.
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Company or the Selling Stockholder. In the event of a default by any Underwriter
as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine
in order that the required changes in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company, the Selling Stockholder and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
34
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Selling
Stockholder prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any amendment or supplement thereto) or (iv) a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, the Selling Stockholder and of the Underwriters and the Forward
Counterparties set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, any Forward Counterparty, the Selling Stockholder or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Citigroup Global Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇); or
if sent to the Company, will be mailed, delivered or telefaxed to the number and
address of the Company set forth in the Registration Statement; or if sent to
JPMorgan, will be mailed, delivered or telefaxed to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at the attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (fax no.: (212)
▇▇▇-▇▇▇▇); or if sent to MLI, will be mailed, delivered or telefaxed to ▇▇▇▇▇▇▇
▇▇▇▇▇ International, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Centre, 2 ▇▇▇▇ ▇▇▇▇▇▇ Street,
London EC1A 1HQ, Attention: Manager Fixed Income Settlements (fax no.: 207 995
2004; telephone no: ▇▇▇ ▇▇▇ ▇▇▇▇) with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. Inc., 4
World Financial Center, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity
Derivatives (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇; telephone no.: (▇▇▇) ▇▇▇-▇▇▇▇); or if sent
to Wachovia, will be mailed, delivered or telefaxed to ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Link Products Documentation
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇); or if sent to the Selling Stockholder, will be
mailed, delivered or telefaxed to ▇/▇ ▇▇ ▇▇▇▇▇▇▇
▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal
Operation/Security Capital (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇).
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"7% Ownership Limit" means the Ownership Limit, as such term is
defined in the Company's Articles of Incorporation.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"DTC" shall mean the Depository Trust Company.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
36
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the United States Investment
Company Act of 1940, as amended.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information, in each case including the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of
such preliminary prospectus
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date, in each case including the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
37
"UCC" shall mean the Uniform Commercial Code as currently in effect in
the State of New York.
38
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholder, the Forward Counterparties and the several
Underwriters.
Very truly yours,
Regency Centers Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chairman
Security Capital Group Incorporated
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ International,
by its agent, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
JPMorgan Chase Bank,
by its agent, ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
Wachovia Bank, National Association
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
39
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
40
SCHEDULE I
Number of
Underwritten Number of Hedge
Securities to Securities to
Underwriters be Purchased be Purchased
------------ ------------- ---------------
Citigroup Global Markets Inc.............. 5,236,449
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated....................... 5,236,449 3,906,667
UBS Securities LLC........................ 3,490,966
▇.▇. ▇▇▇▇▇▇ Securities Inc................ 1,745,484 3,906,667
Wachovia Securities, LLC.................. 1,745,484 3,906,666
Lazard Capital Markets.................... 285,500
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated...... 285,500
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc............ 285,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc........... 285,500
Total............................ 18,596,832 11,720,000
SCHEDULE II
Number of
Hedge Securities
Forward Counterparty to be Sold
-------------------- ----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International............................. 3,906,667
Wachovia Bank, National Association..................... 3,906,666
JPMorgan Chase Bank..................................... 3,906,667
EXHIBIT B
[Letterhead of executive officer or director of
Corporation]
Regency Centers Corporation
Public Offering of Common Stock
June __, 2003
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the several Underwriters,
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Security Capital
Group Incorporated, a Maryland corporation (the "Selling Stockholder"), Regency
Centers Corporation, a Florida corporation (the "Company"), JPMorgan Chase Bank,
▇▇▇▇▇▇▇ ▇▇▇▇▇ International, Wachovia Bank, National Association and each of you
as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.01 par value (the "Common
Stock"), of the Company, and the proposed Underwriting Agreement (the "SynDECS
Underwriting Agreement"), among Citigroup Global Markets Holdings Inc., a New
York corporation ("Holdings"), the Company, the Selling Stockholder, and each of
you as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of SynDECS (Debt Exchangeable for Common Stock)
consisting of the Holdings' Variable Rate Exchange Notes Due June , 2006.
In order to induce you (the "Representatives") and the other Underwriters
to enter into the Underwriting Agreement and SynDECS Underwriting Agreement, as
applicable, the undersigned will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with
the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or
establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any shares of Common Stock or any
securities convertible into Common Stock, or publicly announce an intention to
effect any such transaction, for a period of 90 days after the later of the
dates of the Underwriting Agreement and SynDECS Underwriting Agreement, other
than shares of Common Stock disposed of (i) in connection with the transactions
contemplated in the Underwriting Agreement and the SynDECS Underwriting
Agreement (including the related forward purchase contracts and stock loan
agreements) or (ii) as bona fide gifts, so long as the donee of such gift agrees
in writing to be bound by the restrictions set forth herein and notice of such
gift is given to the Representatives.
If for any reason both the Underwriting Agreement and SynDECS Underwriting
Agreement shall be terminated prior to the Closing Date (as defined in the
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Yours very truly,
[Signature of executive officer or director]
[Name and address of executive officer
or director]
2