Exhibit 1.1
Execution Copy
Acadia Realty Trust
Common Shares of Beneficial Interest
($.001 par value)
Underwriting Agreement
New York, New York
March 25, 2004
Citigroup Global Markets Inc.
As Representative of the Several
Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The certain
stockholders
named in Schedule A hereof (the "Selling
Stockholders") of Acadia Realty Trust, a
self-administered
Maryland real estate
investment trust (the "Company"),
propose to sell to the
several
underwriters
named in Schedule B (the "Underwriters") an
aggregate of 5,000,000 common shares
(the "Firm Common Shares") of beneficial interests of the Company,
par value
$.001 per share (the "Common Stock"). In
addition, the Selling Stockholders have
granted to the Underwriters an option to purchase up to an
additional 750,000
shares of Common Stock, each Selling Stockholder selling up to the amount set
forth opposite such Selling Stockholder's
name in Schedule A, all as provided in
Section 2 hereof. The additional shares to be sold
by the Selling
Stockholders
pursuant to such options are collectively called the "Optional Common
Shares."
The Firm Common Shares and, if and to the
extent such options are exercised, the
Optional Common Shares are collectively
called the "Common
Shares." Citigroup
Global Markets Inc. has agreed to act as representative of the several
Underwriters (in such capacity, the "Representative") in connection with the
offering and sale of the Common Shares.
All of the Company's
assets are held by, and all of its operations are
conducted through, Acadia Realty Limited Partnership, a Delaware limited
partnership (the "Partnership"), its majority owned subsidiaries
and the joint
ventures in which the Partnership holds a
minority interest. The
Company is the
sole general partner of the
Partnership.
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SECTION 1. REPRESENTATIONS AND WARRANTIES
A.
Representations and Warranties of the Company and the Partnership.
As of
the date hereof, the Company and the Partnership, jointly and severally,
represent, warrant and covenant to each
Underwriter as follows:
(a) Preparation and Filing of Registration Statement. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") (i) a registration statement on Form S-3 (File No.
333-31630),
which contains a prospectus dated March 29, 2000 (the "Resale Registration
Statement") and (ii) post-effective
amendment no. 2 to a
registration statement
on Form S-8 (File No. 333-87993) and a
re-offer prospectus
dated March 19, 2004
(the "Reoffer Registration Statement"), to
be used in connection with the public
offering and sale of the Common Shares. Each of the Resale Registration
Statement and Reoffer Registration Statement, as amended, including the
financial statements, exhibits and schedules thereto,
in the form in which
it
was declared effective by the Commission under the Securities Act of 1933,
as
amended, and the rules and regulations
promulgated thereunder (collectively, the
"Securities Act"), all documents incorporated by reference or deemed to be
incorporated by reference therein,
including any information deemed to be a part
thereof at the time of effectiveness
pursuant to Rule 430A or Rule 434 under the
Securities Act or the Securities Exchange
Act of 1934, as amended, and the rules
and regulations promulgated thereunder
(collectively,
the "Exchange Act")
are
collectively called the "Registration Statement." Any registration
statement
filed by the Company pursuant to Rule 462(b) under the
Securities Act is called
the "Rule 462(b) Registration Statement," and from and after the
date and time
of filing of the Rule 462(b) Registration Statement the term "Registration
Statement" shall include the Rule 462(b)
Registration
Statement.
A prospectus
supplement (the "Prospectus Supplement") setting forth the terms of the
offering, the plan of distribution of the Common Shares and additional
information concerning the Company and its
business and information concerning
the Selling Stockholders has been or will be so prepared and will be filed
pursuant to Rule 424(b) of the Securities
Act on or before the
second business
day after the date hereof (or such earlier time as may be required by the
Securities Act). The prospectus dated March
29, 2000 and the re-offer prospectus
dated March 19, 2004, together with the Prospectus
Supplement
dated March 25,
2004, in the form first used by the
Underwriters to
confirm sales of the Common
Shares, are called the "Prospectus;"
provided, however, if the Company has, with
the consent of the Representative, elected to rely upon Rule 434 under the
Securities Act, the term "Prospectus" shall mean the Company's "prospectus
subject to completion" (as defined in Rule
434(g) under the Securities Act) last
provided to the Underwriters by the Company (each,
a "preliminary
prospectus")
dated March 19, 2004 (such preliminary prospectus is called the "Rule 434
preliminary prospectus"). Notwithstanding the foregoing, if any revised
prospectus shall be provided to the Underwriters by the Company for use in
connection with the offering of the Common Shares that differs from the
prospectus referred to in the immediately
preceding sentence (whether or not
such revised prospectus is required to be
filed with the Commission pursuant to
Rule 424(b) under the Securities Act), the
term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the
Underwriters for such use. All references in
this Agreement to the Registration
Statement, the Rule 462(b) Registration
Statement, a preliminary prospectus, or
the Prospectus, or any amendments or
supplements to any of the foregoing, shall
include any copy thereof filed with the
Commission
pursuant to its
Electronic
Data Gathering, Analysis and Retrieval
System ("EDGAR").
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All references
in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include
all such financial
statements
and
schedules and other information which are or are deemed to be
incorporated by
reference in the Registration Statement or the Prospectus,
as the case may
be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus
shall be deemed to mean and include the
filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the
Registration
Statement or the
Prospectus, as
the case may be.
(b Compliance with Registration Requirements. The Resale Registration
Statement was declared effective by the Commission on March 29, 2000 and the
Reoffer Registration Statement was effective upon
filing with the Commission on
March 19, 2004. Any Rule 462(b) Registration Statements have been declared
effective by the Commission under the
Securities Act. The Common Shares all have
been duly registered under the Securities Act. The
Company has complied to the
Commission's satisfaction with all requests of
the Commission for additional or
supplemental information. No stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b)
Registration
Statement is in
effect
and no proceedings for such purpose have been
instituted or are
pending or, to
the best knowledge of the Company, are contemplated or threatened by the
Commission. The Company and the
transactions contemplated by this Agreement meet
the requirements and conditions for use of
a registration
statement on Form S-3
and Form S-8, as applicable, under the Securities Act. The Company is eligible
to use a Form S-3 registration statement under the Securities Act pursuant
to
the standards for that Form in effect
immediately prior to October 21, 1992.
Each
preliminary
prospectus
and the Prospectus (and each document
incorporated by reference therein) when filed complied or will comply in all
material respects with disclosure, form and
other requirements of the Securities
Act and, if filed by electronic
transmission pursuant to EDGAR (except as may be
permitted by Regulation S-T under the Securities Act), the text thereof
(excluding any pictures) was identical or
will be identical to the copy thereof
delivered to the Underwriters for use in connection with the
offer and sale of
the Common Shares. Each of the Registration Statements, any Rule 462(b)
Registration Statement and any post-effective amendment thereto (and each
document incorporated by reference into such registration statements or
post-effective amendment), at the time it
became effective and at all subsequent
times up to and on the First Closing Date (as defined
below) and on any
Second
Closing Date (as defined below), complied and will comply in all material
respects with the disclosure, form and other requirements of the
Securities Act
and did not and will not contain any 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. The Prospectus (and each document
incorporated by reference therein),
as amended or
supplemented, as of
its date
and at all subsequent times up to and on the First
Closing Date (as defined
below) and on any Second Closing Date (as defined below), complied and will
comply in all material respects with the
disclosure, form and other requirements
of the Securities Act and did not and will
not contain 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. The representations and warranties set forth in this
paragraph do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration
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Statement, or any post-effective amendment thereto, or the
Prospectus, or any
amendments or supplements thereto,
made in reliance upon
and in conformity with
information relating to any Underwriter
furnished to the
Company in writing by
the Representative expressly for use therein.
There are no contracts
or other
documents required to be described in the Prospectus or the Registration
Statement or to be filed as exhibits to the
Registration
Statement which have
not been described or filed as
required.
(c) Offering
Materials Furnished to Underwriters. The Company has delivered
or will deliver to the Representative one complete manually signed copy
of the
Registration Statement and of each consent
and certificate of experts filed as a
part thereof and conformed copies of the Registration Statement (without
exhibits) and preliminary prospe. uses and the Pro spectus, as amended or
supplemented, in such quantities and at such
places as the
Representative has
reasonably requested for each of the
Underwriters.
(d) Distribution
of Offering Material
by the Company. The
Company has not
distributed and will not distribute, prior to the later of the Second
Closing
Date (as defined below) and the completion
of the Underwriters'
distribution of
the Common Shares, any offering material in connection
with the offering
and
sale of the Common Shares other than a
preliminary
prospectus, the
Prospectus
and the Registration Statement or other materials
permitted by the
Securities
Act.
(e) The
Underwriting
Agreement.
This Agreement has
been duly authorized,
executed and delivered by, and is a valid
and binding agreement
of, the Company
and the Partnership, enforceable against the Company and the
Partnership
in
accordance with its terms, except as rights
to indemnification
hereunder may be
limited by applicable law and except as the
enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(f) Authorization of the Common Shares. The Common Shares issued to
the
Selling Stockholders to be purchased by
the Underwriters
were duly
authorized
for issuance and are validly issued, fully
paid and nonassessable.
(g) No
Applicable
Registration
or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or
debt
securities registered for sale under the
Registration Statement
or included in
the offering contemplated by this
Agreement, other than the Selling Stockholders
with respect to the Common Shares included
in the Registration Statement, except
for such rights as have been satisfied under this Agreement or have been duly
waived.
(h) No
Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates
as of which information is given
in the Prospectus: (i) there has been no material adverse change, or any
development that could reasonably be expected to result
in a material
adverse
change, in the condition, financial or otherwise, or in the
earnings, business,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Company, the Partnership, and their
subsidiaries, considered as one entity (any such change is called a
"Material
Adverse Change"); (ii) the Company, the Partnership and their subsidiaries,
considered as one entity, have not incurred any material liability or
obligation,
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indirect, direct or contingent, not in the ordinary course of business nor
entered into any material transaction or
agreement not in the ordinary course of
business; and (iii) there has been no dividend or distribution of any kind
declared, paid or made by the Company or the Partnership or, except for
dividends paid to the Company, the Partnership or other subsidiaries, any of
their subsidiaries on any class of
capital stock or repurchase or redemption by
the Company, the Partnership or any of their subsidiaries of any class of
capital stock.
(i) Independent Accountants. Ernst & Young LLP, who have
expressed their
opinion with respect to the financial statements (which term as used in this
Agreement includes the related notes
thereto) and
supporting schedules
filed
with the Commission as a part of the
Registration Statement
and included in the
Prospectus, are independent public or certified public
accountants as required
by the Securities Act and the Exchange
Act.
(j) Preparation
of the Financial Statements. The financial statements filed
with the Commission as a part of the
Registration Statement
and included in the
Prospectus present fairly the consolidated
financial position of the Company and
its subsidiaries as of and at the dates
indicated and the results of their
operations and cash flows for the periods
specified.
The supporting
schedules
included in the Registration Statement present fairly the
information
required
to be stated therein. Such financial statements and
supporting schedules comply
as to form with the applicable accounting requirements of the Exchange Act
and
the Securities Act and have been prepared
in conformity with generally accepted
accounting principles as applied in the
United States
applied on a
consistent
basis throughout the periods involved,
except as may be
expressly stated in the
related notes thereto. No other financial
statements or supporting schedules are
required to be included in the Registration Statement. The financial data set
forth in the Prospectus under the captions "Prospectus Supplement
Summary--Selected Financial Data" and "Capitalization" fairly present the
information set forth therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement. Any non-GAAP
financial measures, as defined under Regulation G under the
Securities
Act,
included in the Prospectus are permitted for use in documents filed with the
Commission.
(k) Organization and Good Standing of the Company,
the Partnership and
their Subsidiaries. Each of the Company,
the Partnership, and their subsidiaries
has been duly incorporated, formed or organized, as the case may be, and is
validly existing as a corporation,
partnership,
limited liability company or
other legal entity in good standing
under the laws of the
jurisdiction
of its
incorporation, organization or formation and has full
corporate or other power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus
and, in the case of
the Company and the
Partnership, to enter into and perform their
respective obligations
under this
Agreement. Each of the Company and each subsidiary is duly qualified as a
foreign corporation or other legal entity to transact
business and is in
good
standing in each jurisdiction in which such
qualification is
required, whether
by reason of the ownership or leasing of property or the
conduct of
business,
except for such jurisdictions where the failure to so qualify or
to be in good
standing would not, individually or in the aggregate, result in a Material
Adverse Change. All of the issued and outstanding capital stock, membership
interests, partnership interests or similar
equity interests of each subsidiary
have been duly authorized and validly
issued, are fully paid
and nonassessable
and the equity interests in each subsidiary which are owned by the
Company,
directly or through subsidiaries, are free and clear of any security
interest,
mortgage, pledge, lien, encumbrance or claim. The Company
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does not own or control, directly or
indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to the
Company's
Annual Report on Form 10-K for the period
ended December 31, 2003. There are no
subsidiaries of the Company that meet the definition of "significant
subsidiaries" under Regulation S-X under
the Securities Act.
(l) Capitalization and Other Capital Stock Matters. As of December 31,
2003, the authorized, issued and outstanding capital
stock of the Company is as
set forth in the Prospectus under the
caption
"Capitalization"
(other than for
subsequent issuances, if any, pursuant to employee benefit plans
described in
the Prospectus or upon exercise of outstanding options described in the
Prospectus). The Common Stock (including the Common Shares) conforms in all
material respects to the description
thereof contained in the Prospectus. All of
the issued and outstanding shares of Common Stock (including the shares of
Common Stock owned by Selling Stockholders) have been duly authorized and
validly issued, are fully paid and
nonassessable and have been offered, sold and
issued in compliance with federal and state
securities
laws. All of the
issued
and outstanding units of limited partnership interest in the Partnership
(the
"OP Units") have been duly authorized by the Partnership. None of the
outstanding shares of Common Stock were issued
in violation of any
preemptive
rights, rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company and the
holders of
outstanding
shares of
capital stock of the Company are not
entitled to preemptive
or other rights to
subscribe for the Common Shares. There are
no authorized or outstanding options,
warrants, preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock or
ownership interests in
the Company or any
of its subsidiaries other than those
accurately described in the Prospectus. The
description of the Company's stock option,
stock bonus and other
stock plans or
arrangements, and the options or other rights
granted thereunder,
set forth in
the Prospectus accurately and fairly presents the information required to be
shown with respect to such plans,
arrangements, options and rights.
(m) Stock
Exchange Listing. The
Common Shares (except for 1,000,000 shares
of Common Stock held by Ross Dworman as a
result of exercising
options issued
under an equity compensation plan) are duly listed and admitted
and authorized
for trading on the New York Stock
Exchange. On the First Closing Date and the
Second Closing Date, the Common Shares will be duly listed and
admitted and
authorized for trading on the New York
Stock Exchange.
(n)
Non-Contravention of Existing Instruments; No Further
Authorizations or
Approvals Required. Neither the Company, the Partnership nor any of their
subsidiaries is in violation of its respective
charter, declaration of trust,
by-laws, certificate of formation,
partnership agreement, operating agreement or
similar documents or is in default
(or, with the giving of notice or lapse
of
time, would be in default) ("Default") under any indenture,
mortgage, loan or
credit agreement, note, contract, franchise, lease or other agreement,
obligation, condition, covenant or instrument to which the Company, the
Partnership or any of their subsidiaries is a party or by which it or any
of
them may be bound, or to which any of the
property or assets of the Company, the
Partnership or any of their subsidiaries is subject (each, an "Existing
Instrument"), except for such Defaults as would not, individually or in the
aggregate, result in a Material Adverse Change. The Company's and the
Partnership's execution, delivery and performance of this Agreement and
consummation of the transactions
contemplated
hereby and by the
Prospectus (i)
will not result in any violation of the
provisions of the
respective
charter,
declaration of trust,
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by-laws, certificate of formation,
partnership agreement, operating agreement or
similar documents of the Company,
the Partnership or any
subsidiary, (ii)
will
not conflict with or constitute a breach of, or Default or a Debt
Repayment
Triggering Event (as defined below) under, or result in the creation or
imposition of any lien, charge or
encumbrance upon any property or assets of the
Company, the Partnership or any of their
subsidiaries
pursuant to, or
require
the consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, Debt Repayment Triggering Events (as defined
below), liens, charges or encumbrances as would not, individually or in the
aggregate, result in a Material Adverse
Change and (iii) will not result in any
violation of any law, statute, rule, regulation, judgment, order or decree,
administrative regulation or administrative or court decree applicable to
the
Company, the Partnership or any subsidiary
or any of its or their property. No
consent, approval, authorization or other order of, or registration
or filing
with, any court or other governmental or regulatory authority or agency, is
required for the Company or the Partnership's execution, delivery and
performance of this Agreement and
consummation of the transactions contemplated
hereby and by the Prospectus, except such as have been obtained
or made by the
Company and the Partnership and are in full force and effect under the
Securities Act, applicable state securities
or blue sky laws of any jurisdiction
in connection with the purchase and
distribution of Common
Shares in the manner
contemplated hereby and in the Prospectus. As used herein, a "Debt Repayment
Triggering Event" means any event or
condition which gives,
or with the giving
of notice or lapse of time would give, the holder of any note,
debenture or
other evidence of indebtedness (or any person acting on such
holder's behalf)
the right to require the repurchase,
redemption or repayment of all or a portion
of such indebtedness by the Company, the
Partnership or any of its subsidiaries.
(o) No Material
Actions or
Proceedings. Except as
otherwise disclosed
in
the Prospectus, there are no legal or governmental actions, suits,
investigations or proceedings pending or, to the best of the
Company's or the
Partnership's knowledge, threatened (i) against or
affecting the Company,
the
Partnership or any of their subsidiaries,
(ii) which has as the
subject thereof
any officer or trustee of, or property owned or leased by, the
Company, the
Partnership or any of their subsidiaries or (iii) relating to
environmental or
discrimination matters, which would reasonably be expected to result in a
Material Adverse Change or adversely affect
the consummation of the transactions
contemplated by this Agreement.
No material labor
dispute with the employees of
the Company, the Partnership or any of
their subsidiaries exists or, to the best
of the Company's and the Partnership's
knowledge, is
threatened or imminent and
the Company and Partnership is not aware of any existing or imminent labor
disturbance by the employees at any of its or its subsidiaries' principal
suppliers, contractors or customers that could result in a Material Adverse
Change.
(p) Intellectual
Property Rights.
The Company,
the Partnership and
their
subsidiaries own or possess sufficient
trademarks,
trade names, patent
rights,
copyrights, domain names, licenses,
approvals, trade
secrets and other similar
rights (collectively, "Intellectual Property Rights") reasonably
necessary to
conduct their businesses as now conducted or as
proposed to be conducted in the
Prospectus, and the expected expiration of any of such
Intellectual
Property
Rights would not result in a Material
Adverse Change.
Neither the Company,
the
Partnership, nor any of their subsidiaries has received any notice of
infringement or conflict with asserted
Intellectual
Property Rights of
others,
which infringement or conflict, if the
subject of an unfavorable decision, would
result in a Material Adverse Change. The Company and the
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Partnership are not parties to or bound by any
options, licenses or
agreements
with respect to the Intellectual Property Rights of any other
person or entity
that are required to be set forth in the
Prospectus and are not described in all
material respects. None of the technology employed by the Company or the
Partnership has been obtained or is being
used by the Company or the Partnership
in violation of any contractual obligation binding on the Company, the
Partnership or, to the Company or Partnership's knowledge, any of their
officers, trustees or employees or is otherwise in violation of
the rights of
any persons, except for violations which would not, individually or in the
aggregate, result in a Material Adverse
Change.
(q) All
Necessary Permits, etc. The Company, the Partnership and each
subsidiary possess such valid and current
certificates, authorizations, licenses
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective businesses, except
where the failure to possess such
certificate,
authorizations or
permits would
not, individually or in the aggregate,
result in a Material
Adverse Change, and
neither the Company, the Partnership nor any subsidiary
has received any notice
of proceedings relating to the revocation or
modification of, or non-compliance
with, any such certificate, authorization,
license or permit which, singly or in
the aggregate, if the subject of an unfavorable
decision, ruling or finding,
could result in a Material Adverse
Change.
(r) Title to
Properties. Each of
the Company, the
Partnership and each of
their subsidiaries owns or leases all such
properties as are
necessary to the
conduct of their respective operations as
presently conducted.
The Company, the
Partnership and each of their subsidiaries has good and
marketable title to all
the properties and assets reflected as owned in the Company's consolidated
financial statements (and schedules
thereto) or elsewhere in the Prospectus, in
each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other
defects, except where the existence of
any security interest, mortgage, lien, encumbrance, equity, claim or other
defect would not, individually or in the
aggregate, result in a Material Adverse
Change. The real property, improvements, equipment and personal property
held
under lease by the Company, the Partnership or any subsidiary are held under
valid and enforceable leases, except where
the invalidity or unenforceability of
any leases would not, individually or in the aggregate, result in a Material
Adverse Change.
(s) Tax Law
Compliance. The Company, the Partnership and their subsidiaries
have filed all necessary federal,
state, local and
foreign income and franchise
tax returns or have properly requested extensions thereof and have paid all
taxes required to be paid by any of them
and, if due and payable, any related or
similar assessment, fine or penalty levied against any
of them except as may be
being contested in good faith and by
appropriate
proceedings. To the
knowledge
of the Company, there is no tax deficiency likely to be asserted against the
Company, the Partnership or any of their
subsidiaries. All tax
liabilities, if
any, of the Company, the Partnership and their subsidiaries are adequately
provided for on the respective books of the
entities.
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(t) Qualification as a Real Estate
Investment
Trust. The Company has
met
the requirements for qualification and taxation as a real estate
investment
trust ("REIT") under the Internal Revenue
Code of 1986, as amended (the "Code"),
as of the close of every taxable year during the Company's
existence,
and the
Company's current and proposed method of
operation will enable it to continue to
meet the requirements for qualification and
taxation as a real estate investment
trust for federal income tax purposes.
(u) Partnership
Qualification.
Each of the
Partnership and any subsidiary
limited liability company or partnership is qualified as a partnership
or a
disregarded entity for federal income tax purposes and not as an association
taxable as a corporation or as a publicly
traded partnership.
(v) Company Not an "Investment Company." Each of the Company and the
Partnership are not, and after the sale of the Shares by the Selling
Stockholders will not be, an "investment
company" or a company
"controlled" by
an "investment company" within the meaning of the
Investment
Company Act of
1940, as amended (the "Investment Company
Act") and will conduct its business in
a manner so that it will not become subject
to the Investment Company Act.
(w) Insurance.
Each of the Company,
the Partnership and their subsidiaries
are insured by recognized, financially sound and reputable institutions with
policies in such amounts and with such
deductibles
and covering
such risks as
are prudent and customary for their
respective
businesses
including,
but not
limited to, policies covering real and personal
property owned or leased by the
Company, the Partnership and their subsidiaries against theft, damage,
destruction, acts of vandalism and all other
risks customarily insured against.
All such policies of insurance are in full
force and effect. There are no claims
by the Company, the Partnership or any of their subsidiaries under any such
policy or instrument as to which any
insurance company is
denying liability
or
defending under a reservation of rights clause, except where such denial or
defense would not, individually or in the aggregate, result in a Material
Adverse Change. Neither the Company, the
Partnership nor any subsidiary has been
refused insurance coverage sought or applied for and
neither the Company,
the
Partnership nor any subsidiary has reason to believe
that it or any subsidiary
will not be able (i) to renew its existing
insurance coverage as and when such
policies expire or (ii) to obtain
comparable coverage from similar institutions
as may be necessary or appropriate to conduct its
business as now conducted and
at a cost that would not result in a
Material Adverse Change.
(x) No Price
Stabilization or Manipulation. The Company and the Partnership
have not taken and will not take, directly
or indirectly, any action designed to
or that might be reasonably expected to cause or result in,
under the Exchange
Act or otherwise, stabilization or
manipulation of the price of the any security
of the Company to facilitate resale of the Common Shares. The Company
acknowledges that the Underwriters may engage in passive market making
transactions in the Common Shares in accordance with Regulation M under the
Exchange Act.
(y) Exchange Act
Compliance.
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 disclosure, form and other requirements of the
Exchange Act, and, when
read together with the other
information
in the
9
<PAGE>
Prospectus, at the time the Registration
Statement and any
amendments thereto
become effective and at the First Closing
Date and the Second
Closing Date, as
the case may be, 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
fact required to be stated therein or
necessary to make the statements therein,
in the light of the circumstances under
which they were made, not misleading.
(z) No Unlawful
Contributions or Other
Payments. Neither the
Company, the
Partnership nor any of their subsidiaries nor, to the knowledge of the
Company
or the Partnership, any trustee, officer, agent, employee or affiliate of
the
Company, the Partnership or any of their
subsidiaries is aware
of or has taken
any action, directly or indirectly, that would result in a violation of such
persons of the FCPA, including,
without limitation,
making use of the
mails or
any means or instrumentality of interstate
commerce corruptly in
furtherance of
an offer, payment, promise to pay or authorization of
the payment of any money,
or other property, gift, promise to give, or authorization of the giving of
anything of value to any "foreign official" (as such term is defined in the
FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA and the Company,
the
Partnership, their subsidiaries and, to the knowledge of the Company and
the
Partnership, their affiliates have
conducted their businesses in compliance with
the FCPA and have instituted and maintain
policies and
procedures designed
to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith. "FCPA" means Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations
thereunder.
(aa) Company's
Accounting System. The
Company has implemented controls and
other procedures that are designed to ensure that
information
required to be
disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported,
within the time
periods specified in the Commission's rules and forms and is accumulated
and
communicated to the Company's executive management as appropriate to allow
timely decisions regarding required disclosure. The Company makes and keeps
books, records, and accounts, which accurately and fairly
reflect in reasonable
detail the transactions and dispositions of the assets of the Company. The
Company, the Partnership and each of their
subsidiaries
maintain a system
of
internal accounting controls sufficient to provide reasonable
assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as
necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States and to maintain
accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(bb) Compliance
with Environmental
Laws. Except as (x) otherwise described
in the Prospectus or (y) would not,
individually or in the aggregate, result in
a Material Adverse Change (i) neither the
Company, the
Partnership, nor any
of
their subsidiaries is in violation of
any federal, state,
local or foreign law
or regulation relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata)
or wildlife, including
without
limitation, laws and regulations relating
to emissions,
discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and
10
<PAGE>
petroleum products (collectively, "Materials of Environmental
Concern"),
or
otherwise relating to the manufacture,
processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials
of Environmental Concern
(collectively, "Environmental Laws"), which violation includes, but is not
limited to, noncompliance with any permits
or other governmental
authorizations
required for the operation of the business
of the Company, the
Partnership
or
their subsidiaries under applicable
Environmental
Laws, or noncompliance
with
the terms and conditions thereof, nor has
the Company, the Partnership or any of
their subsidiaries received any written communication, whether from a
governmental authority, citizens group,
employee or otherwise, that alleges that
the Company, the Partnership or any of
their subsidiaries is in violation of any
Environmental Law; (ii) there is no claim,
action or cause of
action filed with
a court or governmental authority, no investigation with respect to which the
Company or the Partnership has received
written notice, and no written notice by
any person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses
costs, natural resources damages, property
damages, personal injuries, attorneys' fees or penalties
arising out of, based
on or resulting from the presence, or release into the environment, of any
Materials of Environmental Concern at any location owned,
leased or operated by
the Company, the Partnership or any of their
subsidiaries,
now or in the past
(collectively, "Environmental Claims"),
pending or, to the best of the Company's
and the Partnership's knowledge, threatened
against the Company, the Partnership
or any of their subsidiaries or any person or entity whose
liability for any
Environmental Claim the Company, the Partnership or any of their
subsidiaries
has retained or assumed either contractually or by operation of law; and
(iii)
to the Company's and the Partnership's
knowledge,
there are no past or
present
actions, activities, circumstances,
conditions, events or
incidents, including,
without limitation, the release, emission,
discharge,
presence or disposal
of
any Materials of Environmental Concern, that reasonably could result in a
violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company, the Partnership or any of their
subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company,
the Partnership,
or any of their
subsidiaries
has retained or assumed either contractually or by operation of law. Except
as
set forth in the Prospectus, neither the Company, the Partnership nor any
subsidiary has been named as a "potentially responsible party" under the
Comprehensive Environmental Responses
Compensation and Liability Act of 1980, as
amended.
(cc) Periodic
Review of Costs of Environmental Compliance. In the ordinary
course of its business, the Company and the Partnership conduct a periodic
review of the effect of Environmental Laws on the business, operations and
properties of the Company, the Partnership
and their 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 and the
amount of its established reserves, the Company and the Partnership have
reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in
a Material Adverse Change.
(dd) ERISA
Compliance. The
Company, the Partnership and their subsidiaries
and any "employee benefit plan" (as defined
under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively,
"ERISA")) established or maintained by
the Company, the Partnership and their
subsidiaries or
11
<PAGE>
their "ERISA Affiliates" (as defined below) are in compliance in all
material
respects with ERISA. "ERISA Affiliate" means, with
respect to the Company, the
Partnership or a subsidiary, any member of any group of
organizations described
in Sections 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986,
as
amended, and the regulations and published interpretations thereunder (the
"Code"), of which the Company, the Partnership or such subsidiary
is a member.
No "reportable event" (as defined under ERISA) has occurred or is
reasonably
expected to occur with respect to any
"employee benefit plan" established or
maintained by the Company, the Partnership, their subsidiaries or any of
their
ERISA Affiliates. No "employee benefit plan" established or
maintained by the
Company, the Partnership, their subsidiaries or any of their
ERISA Affiliates,
if such "employee benefit plan" were terminated, would have any "amount of
unfunded benefit liabilities" (as defined
under ERISA). Neither the Company, the
Partnership, their subsidiaries nor any of their
ERISA Affiliates has incurred
or reasonably expects to incur any liability under (i) Title IV of ERISA
with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of
the Code. Each "employee benefit plan"
established or maintained by the Company,
the Partnership, their subsidiaries or
any of their ERISA Affiliates that is intended to be qualified
under Section
401(a) of the Code is so qualified and
nothing has occurred,
whether by action
or failure to act, which would cause the
loss of such qualification.
(ee) Brokers. Except as disclosed in the
Prospectus,
there is no
broker,
finder or other party that is entitled to receive from the Company, the
Partnership, or to their knowledge, the Selling
Stockholders, any
brokerage or
finder's fee or other fee or commission as a result of any transactions
contemplated by this Agreement.
(ff) No
Outstanding Loans or Other Indebtedness. There are no outstanding
loans, advances (except normal advances for
business expenses in
the ordinary
course of business) or guarantees or indebtedness by the Company, the
Partnership or any of their subsidiaries to or for the benefit of any of the
officers or trustees of the Company or any
of their family
members, except as
disclosed in the Prospectus.
(gg) Compliance
with Laws. The Company
and the Partnership
have not been
advised, and has no reason to believe,
that they and each of
their subsidiaries
are not conducting business in compliance with all
applicable laws,
rules and
regulations of the jurisdictions in which it is conducting
business, except
where failure to be so in compliance would not result in a Material Adverse
Change.
(hh) Transfer
Taxes. 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 transfer by the
Selling Stockholders of the Common Shares.
(ii)
Dividends and Loans. No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company,
from making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such
subsidiary's property
or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Prospectus.
12
<PAGE>
(jj)
Sarbanes-Oxley;
NYSE Listing Standards. There is and has been no
failure on the part of the Company and any of the Company's trustees or
officers, in their capacities as such, to comply with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Sarbanes-Oxley
Act"), including Section 402 of the
Sarbanes-Oxley Act related to loans and Sections
302 and 906 thereof related to
certifications. The Company is in compliance with
the current listing standards
of the New York Stock Exchange.
(kk)
Recordkeeping
and Reporting. The operations of the Company, the
Partnership and their subsidiaries are and have been conducted at all
times in
compliance with applicable financial
recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970,
as amended,
the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar
rules, regulations or guidelines, issued,
administered or enforced by any
governmental agency
(collectively,
the "Money
Laundering Laws") and no action, suit or proceeding by or before any court
or
governmental agency, authority or body or any
arbitrator involving the Company,
the Partnership or any of their subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company or the
Partnership threatened.
(ll) Treasury
Department Sanctions.
Neither the Company,
the Partnership
nor any of their subsidiaries nor, to the knowledge of the Company, the
Partnership, any trustee, officer, agent, employee or
affiliate of the Company
or Partnership or any of their subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department.
(mm)
Partnership
Agreement.
The limited partnership agreement of the
Partnership, including any amendments thereto, has been duly and validly
authorized, executed and delivered by all the
partners of the
Partnership and
constitutes a valid and binding
agreement,
enforceable in
accordance with
its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting
creditors'
rights generally or by
general
principles of equity.
B.
Representations and Warranties of the Selling Stockholders. Each
Selling
Stockholder severally, and not jointly, represents, warrants and covenants to
each Underwriter as follows:
(a) The
Underwriting Agreement; Custody Agreement; Power of
Attorney. This
Agreement, that certain custody agreement
(the "Custody Agreement"), dated March
19, 2004, between the Company, as custodian
(the "Custodian"), and
such Selling
Stockholder and that certain power of
attorney (the "Power of Attorney"), dated
March 19, 2004, executed by such Selling Stockholder appointing such person
indicated in the Schedule C hereto as such Selling Stockholder's
attorney-in-fact (the "Attorney-in-Fact") have been duly authorized,
executed
and delivered by or on behalf of such
Selling Stockholder and are valid and
binding agreements of such Selling
Stockholder,
enforceable in
accordance with
their respective terms, except as rights to indemnification or contribution
hereunder may be limited by applicable law
and except as the enforcement hereof
or thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium
or other similar laws relating to or affecting the rights and remedies of
creditors or by general equitable
principles.
13
<PAGE>
(b) Title to
Common Shares to be Sold; All Authorizations Obtained. On the
First Closing Date and the Second Closing
Date (as defined below), such Selling
Stockholder will have good and marketable title to all of the Common Shares
which may be sold by such Selling
Stockholder pursuant to this Agreement on such
date free and clear of all security
interests, claims,
liens, equities or other
encumbrances and the legal right and power
(other than as
provided for in
the
Custody Agreement), and all authorizations and approvals required by law
and
under its organizational documents, if
applicable, to enter into this Agreement,
the Custody Agreement and the Power of
Attorney, to sell,
transfer and
deliver
all of the Common Shares which may be sold
by such Selling Stockholder pursuant
to this Agreement and to comply with its other obligations hereunder and
thereunder.
(c) Delivery of
the Common Shares to
be Sold. Upon payment
for the Common
Shares to be sold by such Selling
Stockholder as
provided herein,
delivery of
such Common Shares, as directed by the
Underwriters,
to Cede & Co.
("Cede") or
such other nominee as may be designated
by Depository Trust Company ("DTC"),
registration of such Common Shares in the
name of Cede or such other nominee and
on the Company's share registry in
accordance with the Company's Declaration of
Trust, By-laws and applicable law and as required by Section 8-401 of the
Uniform Commercial Code as in effect in the
State of New York (the "UCC") and an
indication from DTC by book entry that in the case of each
Underwriter,
the
Common Shares being purchased by or on behalf of such
Underwriter
have been
credited to "securities accounts" (as defined in Section 8-501 of
the UCC) of
such Underwriter with DTC (assuming that neither
DTC nor any such
Underwriter
has notice of any adverse claim (as such phrase is defined
in Section 8-105
of
the UCC) to such Common Shares), (i) DTC shall be a "protected
purchaser"
of
such Common Shares within the meaning of
Section 8-303 of the Uniform Commercial
Code ("UCC"), and (ii) under Section
8-501 of the UCC, each
Underwriter
will
acquire a valid "security entitlement" (as defined in
Section 8-102 of the UCC)
to the Common Shares being so purchased by or on behalf of such
Underwriter,
and, to the extent governed by the UCC, no action
based on any "adverse
claim"
(as defined in Section 8-102 of the UCC) (a
"UCC Adverse Claim")
to such Common
Shares (or security entitlement with respect thereto) may properly
be asserted
against such Underwriter with respect to such security
entitlement;
it being
understood that for the purpose of this representation and warranty, such
Selling Stockholder may assume that when
such payment,
delivery,
registration
and crediting occur, (x) Cede or such other nominee is not a "securities
intermediary" (as defined in Section 8-102
of the UCC), (y) registration of such
Common Shares in the name of Cede or another nominee designated by DTC is
effective to register such Common Shares in the name of DTC for
purposes of
Section 8-106(b)(2) of the UCC, and (z) DTC is a "clearing
corporation"
(as
defined in Section 8-102 of the UCC).
(d)
Non-Contravention; No Further Authorizations or Approvals Required.
The
execution and delivery by such Selling
Stockholder
of, and the
performance by
such Selling Stockholder of its obligations
under, this Agreement,
the Custody
Agreement or the Power of Attorney will not
contravene or conflict with, result
in a breach of, or constitute a Default under, or require the consent of any
other party to, the organizational
documents of such
Selling Stockholder or any
other agreement or instrument to which such
Selling Stockholder is a party or by
which it is bound or under which it is
entitled to any right or benefit, any
provision of applicable law or any judgment, order, decree or regulation
applicable to such Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over
14
<PAGE>
such Selling Stockholder. No consent,
approval, authorization or other order of,
or registration or filing with, any court or other
governmental
authority or
agency, is required for the consummation by such Selling Stockholder of the
transactions contemplated in this
Agreement, the Custody Agreement and the Power
of Attorney, except such as have been
obtained or made and are in full force and
effect under the Securities Act,
applicable
state securities or blue sky laws
and from the NASD.
(e) No
Registration or Other Similar Rights. Such Selling Stockholder does
not have any registration or other similar rights to have any equity or
debt
securities registered for sale by the Company
under the Registration
Statement
or included in the offering contemplated by this Agreement,
except rights that
are waived for purposes of this offering or
satisfied by this offering.
(f) No Further
Consents, etc. No consent, approval or waiver is required
under any instrument or agreement to which
such Selling
Stockholder is a party
or by which it is bound or under
which it is
entitled to any right
or benefit,
in connection with the offering,
sale or purchase by
the Underwriters of any of
the Common Shares which may be sold by such
Selling Stockholder under this
Agreement or the consummation by such Selling Stockholder of any of the
other
transactions contemplated hereunder or under
the Custody Agreement or the Power
of Attorney.
(g) Disclosure Made by Such Selling Stockholder in the Prospectus. All
information furnished by or on behalf of such Selling
Stockholder
in writing
expressly for use in the Registration Statement and Prospectus is, and on the
First Closing Date and the Second Closing Date will be, true, correct, and
complete in all material respects, and does not, and on the First
Closing Date
and the Second Closing Date will not,
contain any untrue statement of a material
fact or omit to state any material fact
necessary to make such
information not
misleading. Such Selling Stockholder
confirms as accurate
the number of shares
of Common Stock set forth opposite such Selling Stockholder's name in the
Prospectus under the two captions titled
"Selling Shareholders"
(both prior to
and after giving effect to the sale of the
Common Shares).
(h) No Price
Stabilization or
Manipulation. Such
Selling Stockholder
has
not taken and will not take, directly or indirectly,
any action designed to
or
that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock
to facilitate the sale
or resale
of the Common Shares.
(i) Registration
Statement and Prospectus. Such Selling Stockholder is
not
prompted to sell its Common Shares by any
material information
concerning
the
Company of which such Selling Stockholder
is aware and which is not set forth in
the Registration Statement and the Prospectus.
Any certificate signed
by or on
behalf of such Selling Stockholder and delivered to the Representative or to
counsel for the Underwriters shall be
deemed to be a representation and warranty
by such Selling Stockholder to each Underwriter as to the matters covered
thereby. Such Selling Stockholder acknowledges that the Underwriters
and, for
purposes of the opinion to be delivered
pursuant to Section 5 hereof, counsel to
the Company and counsel to the Underwriters, will rely upon the accuracy and
truthfulness of the foregoing representations and hereby consents to such
reliance.
15
<PAGE>
(j) Certificates Representing Common Shares. The certificates of Common
Stock in negotiable form, together,
representing all of
the Common Shares to be
sold by such Selling Stockholder hereunder
have been placed in custody under the
Custody Agreement, in the form heretofore furnished
to you, and under the Power
of Attorney, in the form heretofore
furnished to you, the
Attorney-in-Fact has
been granted authority to execute and deliver
this Agreement on
behalf of such
Selling Stockholder, to determine the purchase price to be paid by the
Underwriters to the Selling Stockholders as provided in Section 2 hereof,
to
authorize the delivery of the Common Shares to be sold by such Selling
Stockholder hereunder and otherwise to act
on behalf of such Selling Stockholder
in connection with the transactions
contemplated by this
Agreement, the Custody
Agreement and the Power of Attorney.
(k) Interest in
Shares. The Common
Shares represented by
the certificates
held in custody for such Selling
Stockholder
under the Custody
Agreement and
Power of Attorney are subject to the
interests of the
Underwriters
hereunder;
the appointment by such Selling Stockholder of the Attorney-in-Fact by the
Custody Agreement and the Power of Attorney is
irrevocable
to the extent set
forth in the Custody Agreement and the Power of
Attorney; the
obligations
of
such Selling Stockholder hereunder shall not be terminated
by operation of law,
whether by the death or incapacity of any
individual Selling
Stockholder or, in
the case of an estate or trust,
by the death or
incapacity
of any executor or
trustee or the termination of such estate or trust, or in the case of a
partnership, limited liability company or corporation,
by the dissolution
of
such partnership, limited liability company
or corporation, or by the occurrence
of any other event; if any individual
Selling Stockholder or any such
executor
or trustee should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership,
limited liability
company or
corporation should be dissolved, or if any
other such event should occur, before
the delivery of the certificates representing the Common Shares shall be
delivered by or on behalf of the Selling
Stockholders
in accordance with the
terms and conditions of this Agreement and the Custody
Agreement and the
Power
of Attorney; and actions taken by the
Attorney-in-Fact
pursuant to any Custody
Agreement and Power of Attorney shall be as
valid as if such death, incapacity,
termination, dissolution or other event had not
occurred, regardless of whether
or not the Custodian, the Attorney-in-Fact,
or any of them, shall
have received
notice of such death, incapacity,
termination, dissolution or other event.
SECTION 2.
PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES
(a) The Firm
Common Shares.
Upon the terms herein
set forth, the
Selling
Stockholders agree to sell to the several
Underwriters an aggregate of 5,000,000
Firm Common Shares, each Selling Stockholder selling the number of
Firm Common
Shares set forth opposite such Selling
Stockholder's name on
Schedule A. On the
basis of the representations, warranties and agreements herein
contained, and
upon the terms but subject to the
conditions herein set
forth, the Underwriters
agree, severally and not jointly, to
purchase from the Selling Stockholders the
respective number of Firm Common Shares set forth opposite their names on
Schedule B. The purchase price per Firm Common Share to be
paid by the several
Underwriters to the Selling Stockholders
shall be $13.0625 per share.
(b) The First
Closing Date. Delivery
of certificates
for the Firm
Common
Shares to be purchased by the Underwriters
and payment therefor shall be made at
the offices of the Representative, 388 Greenwich Street, New York, New York
10013 (or such other place as may
16
<PAGE>
be agreed to by the Company and the
Representative) at
9:00 a.m. New York time,
on March 31, 2004, or such other time and date not later than 12:30
p.m. New
York time, on April 12, 2004, as the
Representative
shall designate by
written
notice to the Company (the time and date of such
closing are called the
"First
Closing Date"). The Company and the Selling
Stockholders hereby acknowledge that
circumstances under which the Representative may
provide notice to postpone the
First Closing Date as originally
scheduled include, but are in no way limited
to, any determination by the Company, the Selling Stockholders or the
Representative to recirculate to the public
copies of an amended or supplemented
Prospectus or a delay as contemplated by
the provisions of Section 9 hereof.
(c) The Optional
Common Shares;
the Second Closing
Date. In addition,
on
the basis of the representations, warranties and agreements
herein contained,
and upon the terms but subject to the
conditions herein set
forth, the Selling
Stockholders hereby grant an option to the several
Underwriters
to purchase,
severally and not jointly, up to an aggregate of 750,000
Optional Common Shares
from the Selling Stockholders at the purchase price
per share to be paid by the
Underwriters for the Firm Common Shares.
The option granted hereunder is for use
by the Underwriters solely in covering any
over-allotments
in connection with
the sale and distribution of the Firm Common S
