Exhibit 1.1
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Equity One, Inc.
3,000,000 Shares*
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
May 13, 2003
To the Underwriters named on Schedule I:
Ladies and Gentlemen:
Equity One, Inc., a corporation organized under the laws of the State of
Maryland (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom the Underwriters named as
Representatives on Schedule I (the "Representatives") are acting as
representatives, 3,000,000 shares of Common Stock, $0.01 par value ("Common
Stock") of the Company (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to purchase up to 450,000 additional shares
of Common Stock to cover over-allotments (the "Option Securities"; the Option
Securities, together with the Underwritten Securities, being hereinafter called
the "Securities"). To the extent there are no additional Underwriters listed on
Schedule I other than the Representatives, 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 or the Prospectus (each as
defined below) as of a particular date 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 as of such date; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act deemed to be incorporated
therein by reference. Certain terms used herein are defined in Section 17
hereof.
1. Representations and Warranties.
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The Company represents and warrants to, and agrees with, each Underwriter
as set forth below in this Section 1.
(a) The Company and the transactions contemplated by this agreement meet
the requirements for use of Form S-3 under the Act and also currently
meet the requirements in effect prior to October 21, 1992 for use of
Form S-3. The Company has prepared and filed with the Commission a
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*Plus an option to purchase from Equity One, Inc. up to $450,000 additional
shares to cover over-allotments.
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registration statement (file number 333-81216) on Form S-3, including
a related preliminary base prospectus, for registration under the Act
of the offering and sale of the Company's debt and equity securities.
The Company will next file with the Commission a final prospectus
supplement related to the Securities together with a prospectus in
accordance with Rule 424(b) (the "Prospectus"). The Company has
included in such registration statement, as of the Effective Date, all
information required by the Act and the rules thereunder to be
included in such registration statement. As filed, the Prospectus
(together with any supplements thereto) shall contain all 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 as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission. On the
Effective Date, the Registration Statement did, and when the
Prospectus is filed 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 will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; when amended or supplemented, the
Registration Statement and the Prospectus will also so comply with
such acts and rules. On the Effective Date and at the Execution Time,
the Registration Statement did 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; nor will it do so on the date of any amendment; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Prospectus (as it may be amended or
supplemented) will not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the
Prospectus.
(c) Each of the Company and its Subsidiaries (which term, as used in this
agreement, includes direct and indirect subsidiaries that directly or
indirectly own interests in real property or are actively engaged in
the
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management of real property) has been duly incorporated or organized
and is validly existing as a corporation, limited partnership, general
partnership or limited liability company in good standing under the
laws of the jurisdiction in which it is chartered or organized with
full corporate, partnership or limited liability company 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,
and is duly qualified to do business as a foreign corporation, limited
partnership, general partnership or limited liability company and is
in good standing under the laws of each jurisdiction which requires
such qualification except in any case in which the failure to so
qualify or be in good standing would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings
or business of the Company and its Subsidiaries or their properties,
taken as a whole;
(d) All the outstanding shares of capital stock, partnership interests,
limited liability company interests or other equivalent equity
interest of each Subsidiary has been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Prospectus, all outstanding shares of capital stock,
partnership interests, limited liability company interests or other
equivalent equity interest of the Subsidiaries are owned by the
Company either directly or through wholly owned Subsidiaries free and
clear of any perfected security interest or any other security
interests, claims, liens or encumbrances;
(e) The Company's authorized equity capitalization is as set forth in the
Prospectus as of the date or dates stated therein; the capital stock
of the Company conforms in all material respects to the description
thereof contained in the Prospectus; the outstanding shares of capital
stock have been duly and validly authorized and issued and are fully
paid and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the certificates for the Common Stock are in valid and
sufficient form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to
subscribe for the Securities; and except as set forth in the
Prospectus 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.
(f) There is no franchise, contract or other document 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 in the Prospectus under the headings
"Material Federal Income Tax Considerations", "Description of Common
and Preferred Stock" and
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"Risk Factors" insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements, documents or
proceedings.
(g) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms except to the extent that the
indemnification provisions hereof may be limited by federal or state
securities laws and public policy considerations in respect thereof.
(h) The Company has operated, for all periods from and after January 1,
1995, and intends to continue to operate in such a manner as to
qualify to be taxed as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended (the "Code"), including the
taxable year in which sales of the Securities are to occur.
(i) The Company is not and, after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(j) No consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained
under the Act, real estate syndication laws 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 herein and in the Prospectus.
(k) Neither the Company nor any of its Subsidiaries is required to own or
possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by it, other than those the
failure to possess or own would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings or
business of the Company and its Subsidiaries or their properties,
taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(l) Neither the execution or delivery of this agreement, the issue and
sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Subsidiaries pursuant to, (i) the
charter or articles or certificate of formation, bylaws, partnership
agreement, limited liability company agreement or other organizational
documents of the Company or any of its
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Subsidiaries, (ii) except as set forth in the Prospectus, the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its Subsidiaries
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
applicable to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or any of its
Subsidiaries or any of its or their properties.
(m) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement
except for those listed on Schedule 1(m), all of which have been
effectively waived or are inapplicable to the offering hereby.
(n) The consolidated historical financial statements and schedules of the
Company and its consolidated Subsidiaries included in the Prospectus
and the Registration Statement present fairly in all material respects
the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The financial
information and data included in the Prospectus and Registration
Statement fairly present, on the basis stated in the Prospectus and
the Registration Statement, the information included therein.
(o) The pro forma financial statements included in the Prospectus and the
Registration Statement include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to
the transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma
financial statements included in the Prospectus and the Registration
Statement. The pro forma financial statements included in the
Prospectus and the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X under the Act.
(p) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated therein or contemplated thereby or in a supplement filed with
the Commission prior to the Execution Time, (A) there has been no
material adverse change, in the condition (financial or otherwise),
prospects,
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earnings or business of the Company and its Subsidiaries or their
properties, taken as a whole, whether or not arising from transactions
in the ordinary course of business, (B) there have been no
transactions or acquisitions entered into by the Company or any of its
Subsidiaries other than those arising in the ordinary course of
business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise, and (c) except for regular
quarterly dividends on the Company's common stock, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(q) The documents incorporated or deemed to be incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act, and, when read together with the
other information in the Prospectus, at the time the Registration
Statement became effective and as of the Execution Time, the Closing
Date, any settlement date pursuant to Section 3 or during the period
specified in Section 5(b), did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(r) All pending legal or governmental proceedings to which the Company or
any of its Subsidiaries is a party or of which any of its property or
assets is the subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(s) Neither the Company nor any Subsidiary is in violation or default of
(i) any provision of its charter or articles or certificate of
formation, bylaws, partnership agreement, limited liability company
agreement or other organizational documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or such Subsidiary or any of its properties, as
applicable except in the cases of clause (ii) or (iii) for such
violations or defaults that would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings or
business of the Company and its Subsidiaries or their properties,
taken as a whole.
(t) Deloitte & Touche LLP, which has certified certain financial
statements of the Company and its consolidated Subsidiaries and
delivered their report
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with respect to the audited consolidated financial statements and
schedules included in the Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act
and the applicable published rules and regulations thereunder.
(u) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or revenues derived therefrom or materially interfere with the
use made or to be made thereof by them; the Company and its
Subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them; except as disclosed
in the Prospectus, no tenant under any lease to which the Company or
any Subsidiary lease any portion of its property is in default under
such lease, except in any case where such default would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings or business of the Company and its Subsidiaries or
their properties, taken as a whole; each of the properties of any of
the Company or its Subsidiaries complies with all applicable codes and
zoning laws and regulations except in any case where such
non-compliance would not have a material adverse effect on the
condition, operations, prospects or earnings of the non-compliant
property; and neither the Company nor any of its Subsidiaries has
knowledge of any pending or threatened condemnation, zoning change or
other proceeding or action that will in any manner affect the size of,
use of, improvements on, construction on, or access to the properties
of any of the Company or its Subsidiaries except in any case where
such action or proceeding would not have a material adverse effect on
the condition, operations, prospects or earnings of the property.
(v) Title insurance in favor of the Company and its Subsidiaries is
maintained with respect to each shopping center property owned by any
such entity in an amount at least equal to (a) the cost of acquisition
of such property or (b) the cost of construction of such property
(measured at the time of such construction), except, in each case,
where the failure to maintain such title insurance would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings or business of the Company and its Subsidiaries or
their properties, taken as a whole.
(w) The mortgages and deeds of trust encumbering the properties and assets
described in the Prospectus (i) are not convertible (in the absence of
foreclosure) into an equity interest in the property or asset
described therein or in the Company or any Subsidiary, nor does any of
the Company or its Subsidiaries hold a participating interest therein,
(ii) except as set forth in the Prospectus are not cross-defaulted to
any
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indebtedness other than indebtedness of the Company or any of the
Subsidiaries and (iii) are not cross-collateralized to any property
not owned by the Company or any of the Subsidiaries.
(x) To the best knowledge of the Company and its Subsidiaries, the real
property of such entities is free of material structural defects and
all building systems contained therein are in good working order in
all material respects, subject to ordinary wear and tear or, in each
instance, the Company maintains adequate reserves to effect reasonably
required repairs, maintenance and capital expenditures.
(y) There are no transfer taxes or other similar fees or charges under
federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale by
the Company of the Securities.
(z) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not
have a 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 supplement
thereto) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not have a 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
supplement thereto).
(aa) The Company, each of its Subsidiaries and each of their properties are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary
in the businesses in which they are engaged; all policies of insurance
and fidelity or surety bonds insuring the Company or any of its
Subsidiaries or their respective properties, businesses, assets,
employees, officers and directors are in full force and effect.
(bb) The Company and its Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such Subsidiary
has received any notice of proceedings relating to the revocation or
modification of any
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such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a 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
supplement thereto).
(cc) The Company and each of its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(dd) The Company 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.
(ee) The Company and its Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
and Hazardous Materials (as defined herein), including, but not
limited to the generation, recycling, reuse, sale, storage, handling,
transport and disposal of Hazardous Materials (collectively,
"Environmental Laws"), (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or
release of Hazardous Materials, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in 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
supplement thereto). Except as set forth in the Prospectus, neither
the Company nor any of the Subsidiaries has been named as a
"potentially responsible party" under any Environmental
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Laws, including, but not limited to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
(ff) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations
and properties of the Company and its Subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would
not, singly or in the aggregate, have a 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 supplement thereto).
(gg) The Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of an Underwriter
except as set forth on Schedule I and (ii) does not intend to use any
of the proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any such affiliate except as set forth in the
Prospectus.
2. Purchase and Sale.
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(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a
purchase price of $16.22 per share, the amount of the
Underwritten Securities set forth opposite such Underwriter's
name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company
hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to 450,000 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 (but not more than once) on or before the 30th
day after the date of the Prospectus upon written or telegraphic
notice by the Representatives to the Company setting forth the
number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date.
The
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number of shares of the Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares
of the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment.
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Delivery of and payment for the Underwritten Securities and the Option
Securities (if the option provided for in Section 2(b) hereof shall have
been exercised at least one Business Day prior to the Closing Date) shall
be made at 10:00 AM, New York City time, on May 16, 2003, or if the pricing
occurs after 4:30 PM, New York City time), on May 19, 2003, or at such time
on such later date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery
and payment for the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in
same-day funds. Delivery of the Underwritten Securities and the Option
Securities shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise instruct. If the option
provided for in Section 2(b) hereof is exercised after one Business Day
prior to the Closing Date, the Company will deliver the Option Securities
(at the expense of the Company) to the Representatives on the date
specified by the Representatives (which shall be between one and ten
Business Days after exercise of said option or at such other time as agreed
upon by the Representatives and the Company) for the respective accounts of
the several Underwriters, against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the
order of the Company by wire transfer payable in same-day funds. If
settlement for the Option Securities occurs after the Closing Date, the
Company will deliver to the Representatives on the settlement date for the
Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Section
6 hereof.
4. Offering By Underwriters.
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The Company understands that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Prospectus.
5. Agreements.
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The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to file any amendment to the
Registration Statement necessary in connection with the offer and sale
of the Securities. Prior to the termination of the offering of the
Securities,
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the Company will not file any amendment of the Registration Statement
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 filing of the Prospectus is otherwise required under Rule
424(b), the Company will cause the Prospectus, properly completed, and
any supplement thereto to be filed 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 Prospectus, and any 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, (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (3) 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 supplement to the
Prospectus or for any additional information, (4) 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 (5) 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.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then 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 supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and (3) supply any
supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement
or
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statements of the Company and its Subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay any fee of the National Association of Securities Dealers,
Inc., in connection with its review of the offering; provided that in
no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) The Company will not, 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 Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly, 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, 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 and sell Common Stock pursuant to any employee
stock option plan, stock ownership plan or dividend reinvestment plan
of the Company in effect at the Execution Time and the Company may
issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time.
13
(g) The Company has furnished or will furnish to you "lock-up" letters
signed by Chaim Katzman, Doron Valero and Howard Sipzner, Gazit,
(1995) Inc., Silver Maple (2001), Inc., MGN (USA), Inc., Gazit-Globe
(1982) Ltd., Ficus, Inc. and AH Investments US, L.P. in forms mutually
satisfactory to such persons and the Representatives.
(h) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the
taxable year in which sales of the Securities are to occur.
(i) The Company, during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act in connection with sales
of the Securities, will file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the Exchange Act
within the time period prescribed by the Exchange Act.
(j) The Company will use its best efforts to list the Securities on the
New York Stock Exchange.
(k) 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.
(l) The Company will use the net proceeds from the sale of Securities in
the manner specified in the form of the prospectus supplement
previously furnished to the Representatives.
6. Conditions to the Obligations of the Underwriters.
---------------------------------------------------
The obligations of the Underwriters to purchase the Underwritten Securities
and the Option Securities, as the case may be, shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, shall have been 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 Greenberg Traurig, P.A.,
Greenberg Traurig, LLP, Andrews & Kurth LLP and Venable, Baetjer and
14
Howard, LLP, each counsel for the Company, to have furnished to the
Representatives the opinions, dated the Closing Date and addressed to
the Representatives and reasonably satisfactory in form and substance
to counsel for the Underwriters, to the effect that:
(i) each of the Company and the Subsidiaries which directly or
indirectly holds real property (whether by fee ownership or
lease) for the purpose of leasing to third parties is validly
existing as a corporation, limited partnership or limited
liability company in good standing under the laws of the
jurisdiction in which it is chartered or formed, with full
corporate, partnership or limited liability company 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, and is duly qualified to do business as a foreign
corporation, partnership or limited liability company and is in
good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties
or conducts material business and where the failure to be so
qualified would, individually or in the aggregate, have a
material adverse effect on the financial condition, 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; notwithstanding the foregoing,
the Company is duly qualified to do business as a foreign
corporation and is in good standing under the laws of Florida,
Georgia and Texas;
(ii) all the outstanding shares of capital stock, partnership
interests, limited liability company interests or other
equivalent equity interest of each Subsidiary which directly or
indirectly holds real property (whether by fee ownership or
lease) for the purpose of leasing to third parties have been duly
authorized and validly issued and are fully paid and
nonassessable, as applicable, and except as described in the
Prospectus, all outstanding shares of capital stock, partnership
interests, limited liability company interests or other
equivalent equity interest of such Subsidiaries are owned by the
Company either directly or through wholly owned Subsidiaries;
(iii)the Company's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and
nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
15
Underwriters pursuant to this Agreement, will be validly issued,
fully paid and nonassessable; the certificates for the Securities
are in valid and sufficient form; the holders of outstanding
shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities except
for such rights as have been effectively waived;
(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
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;
(v) the statements included or incorporated by reference in the
Prospectus under the captions "Material Federal Income Tax
Considerations", "Description of Common and Preferred Stock " and
"Risk Factors" insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are accurate in all material respects;
(vi) the Registration Statement has become effective under the Act;
any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by
Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been instituted
or threatened by the Commission and the Registration Statement as
of its filing date and effective date and the Prospectus as of
its filing date and as of its date (other than the financial
statements and other financial information contained therein, as
to which such counsel need express no opinion) complied as to
form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder
and the Company satisfies all conditions and requirements for the
filing of the Registration Statement on Form S-3 under the Act;
and 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, the
Execution Time and on the Closing Date contained or contains any
untrue
16
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 information contained therein, as to which such
counsel need express no opinion);
(vii)this Agreement has been duly authorized, executed and delivered
by the Company;
(viii) the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940, as amended;
(ix) commencing with the Company's taxable year beginning January 1,
1995, the Company has been organized in conformity with the
requirements of the Code for qualification as a "real estate
investment trust" for United States federal income tax purposes
and its method of operation will enable it to continue to satisfy
the requirements for qualification and taxation as a "real estate
investment trust" under the Code;
(x) the Securities are approved for listing, subject to official
notice of issuance, on the New York Stock Exchange;
(xi) no consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection
with the performance by the Company of the transactions
contemplated herein, except such as have been obtained under the
Act, real estate syndication laws 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; provided, however, that no
opinion shall be required with respect to real estate syndication
or blue sky laws;
(xii)except as set forth in the Prospectus, neither the execution or
delivery of this agreement by the Company, issue and sale of the
Securities by the Company, the consummation by the Company of any
other of the transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or its Subsidiaries
pursuant to, (i) the charter or by-laws of the Company or its
17
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 to which the Company or its Subsidiaries is a party
or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, or any judgment, order or
decree known to such counsel applicable to the Company or its
Subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its Subsidiaries or any of its
or their properties; and
(xiii) to such counsel's knowledge, no holders of securities of the
Company have rights to the registration of such securities under
the Registration Statement except for those which have been
effectively waived.
In rendering such opinions, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the States of Maryland,
Florida, Texas, Georgia, Arizona and Delaware 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) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Alston & Bird 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 supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company,
dated the Closing Date, or any settlement date pursuant to Section 3,
to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any 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 or
settlement date with the same effect as if made on the Closing
Date
18
or settlement 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 or
settlement 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
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 supplement
thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to
have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder
and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules of the Company and those of IRT Property
Company 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 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 each of the compensation committee,
executive committee and audit and review committee of the Company
and the Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its Subsidiaries as to transactions
and events
19
subsequent to December 31, 2002, nothing came to their attention
which caused them to believe that:
(1) (x) any material modifications should be made to the
unaudited condensed consolidated balance sheet of the
Company as of March 31, 2003 and the unaudited condensed
consolidated statements of income and cash flows for the
three-month periods ended March 31, 2003 and 2002 included
in the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2003, incorporated by reference in
the Registration Statement, for them to be in conformity
with generally accepted accounting principles or (y) such
unaudited financial statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Exchange Act and regulations thereunder;
(2) there were any changes, at a specified date not more than
five days prior to the date of the letter, in the long-term
debt of the Company and its Subsidiaries or capital stock of
the Company or decreases in the net assets or stockholders'
equity of the Company as compared with the amounts shown on
the December 31, 2002 consolidated balance sheet included or
incorporated by reference in the Registration Statement and
the Prospectus, or for the period from January 1, 2003 to
such specified date there were any decreases, as compared
with the corresponding period in the preceding quarter or
the corresponding period in the prior year in net revenues
or income before income taxes or in total or per share
amounts of net income of the Company and its Subsidiaries,
except in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(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), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K;
(iii)they have performed certain other specified procedures as a
result of which they determined that certain information of an
20
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 or incorporated by reference in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement agrees with the accounting records of the
Company and its Subsidiaries, excluding any questions of legal
interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus (the "pro forma
financial statements"); carrying out certain specified
procedures; inquiries of certain officials of the Company who
have responsibility for financial and accounting matters; and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements do
not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements. References to the Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)(ii)(2)
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 supplement
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents
as the Representatives may reasonably request.
21
(h) The Securities shall have been listed and admitted and authorized for
trading on the New York Stock Exchange, and satisfactory evidence of
such actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the
Representatives "lock-up" letters signed by Chaim Katzman, Doron
Valero and Howard Sipzner, Gazit, (1995) Inc., Silver Maple (2001),
Inc., MGN (USA), Inc., Gazit-Globe (1982) Ltd., Ficus, Inc. and AH
Investments US, L.P. in forms mutually satisfactory to such persons
and the Representatives.
(j) The Company shall have caused Deloitte & Touche LLP, as the case may
be, to have delivered to the Representatives at the Closing Date all
accounting information specified in Section 6(e) above to the extent
not delivered at Execution Time.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects 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 in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at
the office of Alston & Bird LLP, counsel for the Underwriters, at 3201 Beechleaf
Court, Suite 600, Raleigh, North Carolina 27604-1062, on the Closing Date.
7. Expenses.
---------
(a) If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth
in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 10 hereof or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or
comply with any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
(b) The Company agrees to pay the following costs and expenses and all
other costs and expenses incident to the performance by it of its
obligations hereunder:
22
(i) the preparation, printing or reproduction, and filing with the
Commission of the Registration Statement (including financial
statements and exhibits thereto), any Preliminary Prospectus, the
Prospectus and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, any Preliminary
Prospectus, the Prospectus and all amendments or supplements to
any of them as may be reasonably requested for use in connection
with the offering and sale of the Securities;
(iii)the preparation, printing, authentication, issuance and delivery
of certificates for the Securities, including any stamp taxes in
connection with the original issuance and sale of the Securities;
(iv) the printing (or reproduction) and delivery of this Agreement and
all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities;
(v) the listing of the Securities on the New York Stock Exchange;
(vi) the registration or qualification of the Securities for offer and
sale under the laws of any jurisdiction as provided in Section
5(e) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the
preliminary and supplemental Blue Sky Memoranda and such
registration and qualification);
(vii)the filing fees and the fees and expenses of counsel for the
Underwriters in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.;
(viii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to
prospective purchasers of the Securities;
(ix) the fees and expenses of the Company's accountants and the fees
and expenses of counsel (including local and special counsel) for
the Company.
8. Indemnification and Contribution.
---------------------------------
(a) The Company agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and
each
23
person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Securities as
originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
therein; provided further, that with respect to any untrue statement
or omission of material fact made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to
the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the Securities concerned,
to the extent that any such loss, claim, damage or liability of such
Underwriter occurs under the circumstance where it shall have been
determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished
copies of the Prospectus to the Representatives, (x) delivery of the
Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there
was not sent or given to such person, at or prior to the written
confirmation of sale of such securities to such person, a copy of the
Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating
to such Underwriter
24
furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth under the
heading "Underwriting", (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances and (iii) the
paragraph related to stabilization, syndicate covering transactions
and penalty bids in the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the 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 such separate counsel 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
25
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the Underwriters may
be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in excess of
the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined
by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by
the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
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Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights
to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Underwriter.
-------------------------
If any one or more Underwriters shall fail to purchase and pay for any of
the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite
their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do
not purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days,
as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination.
-----------
This Agreement shall be subject to termination in the absolute discretion
of the Representatives, by notice given to the Company prior to delivery of
and payment for the Securities, if at any time prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange,
(ii) a banking moratorium shall have been declared either by federal or New
York State
27
authorities or (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 supplement
thereto).
11. Representations and Indemnities to Survive.
------------------------------------------
The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of
this Agreement.
12. Notices.
-------
All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or
telefaxed to the Representatives at the address set forth on Schedule I and
confirmed to the Representatives at the address set forth on Schedule I;
or, if sent to the Company, will be mailed, delivered or telefaxed to
Equity One, Inc., 1696 N.E. Miami Gardens Drive, North Miami Beach, FL
33179, (fax no. (305) 947-1734) and confirmed to it at Equity One, Inc.,
1696 N.E. Miami Gardens Drive, North Miami Beach, FL 33179, attention:
Howard Sipzner, Chief Financial Officer.
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 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.
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"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.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Registration Statement" shall mean the registration statement on Form S-3
(Commission File No. 333-81216), including exhibits and financial
statements, as amended at the Execution Time 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. "Rule 424" and "Rule 462" refer to such
rules under the Act. "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.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Equity One, Inc.
By: /s/ Chaim Katzman
-----------------
Chaim Katzman
Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
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Deutsche Bank Securities Inc.
By: /s/ Richard Grellier
--------------------
Name: Richard Grellier
Title: Director
By: /s/ Kevin McCain
-------------------
Name: Kevin McCain
Title: Managing Director
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
30