Exhibit 1.1
Standard Pacific Corp.
3,500,000 Shares a/
-
Common Stock
($ .01 par value)
Underwriting Agreement
New York, New York
May 2, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
Banc of America Securities LLC
Deutsche Bank Securities Inc.
UBS Warburg LLC
As Representatives of the several Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Standard Pacific Corp., a corporation organized under the laws
of Delaware (the "Company"), proposes to sell to the several underwriters named
in Schedule I hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, 2,500,000 shares of Common Stock, $.01 par value
("Common Stock") of the Company, and the persons named in Schedule II hereto
(the "Selling Stockholders") propose to sell to the several Underwriters
1,000,000 shares of Common Stock (said shares to be issued and sold by the
Company and shares to be sold by the Selling Stockholders collectively being
hereinafter called the "Underwritten Securities"). The Company and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ also propose to grant to the Underwriters an option to purchase up to
an aggregate of 525,000 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 you,
the term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. In addition, to the extent that there is not more than
one Selling Stockholder named in Schedule II, the term Selling Stockholder shall
mean either the singular or plural. The use of the neuter in this Agreement
____________________
a/ Plus an option to purchase from the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ up to an
-
aggregate of 525,000 additional Securities to cover over-allotments.
shall include the feminine and masculine wherever appropriate. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties.
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(i) The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a registration
statement (file number 333-52732) on Form S-3, including a related basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments or
supplements thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will next file with
the Commission a final prospectus in accordance with Rules 415 and 424(b).
As filed, such final prospectus shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first 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 Final Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement 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; and, on the Effective Date, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact
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necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
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however, that the Company makes no representations or warranties as to the
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information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) 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 Final Prospectus (or any
supplement thereto).
(c) The Registration Statement has become effective and no stop
order suspending the effectiveness of the Registration Statement is in
effect, and, to the best of the knowledge of the Company, no proceedings
for such purpose are pending before or threatened by the Commission.
(d) Each Preliminary Final Prospectus, if any, filed as part of
the registration statement in connection with this offering as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the Act, complied when so filed in all material respects with the
Act, and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
Preliminary Final Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by the Representatives
expressly for use therein.
(e) The Company has the authorized equity capitalization as set
forth in the Final Prospectus and, as of the Closing Date, the Company
shall have an authorized equity capitalization as set forth in the Final
Prospectus. The Company has, as of the date of this Agreement, and as of
the Closing Date the Company will have, not less than 29,000,000 shares of
common stock issued and outstanding. All of the outstanding capital stock
of the Company has been duly authorized and validly issued and is fully
paid and nonassessable and was not issued in violation of any preemptive or
similar rights. No holder of securities of the Company (A) is entitled to
preemptive or other similar rights to subscribe for securities of the
Company or (B) has rights to the registration of securities of the Company
under the Registration Statement, except as described in the Registration
Statement.
(f) The Company owns all of the outstanding capital stock and
other securities evidencing equity ownership of Standard Pacific of Texas,
L.P., Standard Pacific of Orange County, Inc., Standard Pacific of
Fullerton, Inc., Family Lending Services, Inc., Standard Pacific of
Arizona, Inc., HSP Arizona, Inc., The Writer Corporation, Westbrooke
Acquisition Corp., The Westbrooke Companies, Inc. and Westbrooke
Communities, Inc. (together, the "Material Subsidiaries") free and clear of
any pledge, fiduciary transfer, security interest, claim, lien, limitation
on voting rights or encumbrance, and all such securities have been duly
authorized and validly issued, fully paid and nonassessable and have not
been issued in violation of, or subject to, any preemptive or similar
rights. There are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock
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or other equity interest of any Material Subsidiary. Except for the
Material Subsidiaries, there are no subsidiaries of the Company which are
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X.
(g) The Company and each of its Material Subsidiaries has been
duly organized, is validly existing as a corporation or partnership in good
standing under the laws of its respective jurisdiction of organization and
has all requisite corporate or partnership power and authority to (a) carry
on its business as it is currently being conducted and as described in the
Final Prospectus and (b) own, lease, license and operate its respective
properties in accordance with its business as currently conducted. The
Company and each of its Material Subsidiaries is duly qualified and in good
standing as a foreign corporation or partnership authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect").
(h) The Company has all requisite corporate power and authority
to execute, deliver and perform all of its obligations under, and to
consummate the transactions contemplated by this Agreement and, without
limitation, the Company has all requisite corporate power and authority to
issue, sell and deliver the Securities being sold by the Company.
(i) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(j) The Securities to be sold by the Company have been duly and
validly authorized for issuance and sale to the Underwriters by the Company
and, when issued, authenticated and delivered by the Company against
payment by the Underwriters in accordance with the terms of this Agreement
will be validly issued, fully paid and nonassessable. The Securities, when
issued, authenticated and delivered, will conform in all material respects
to the description thereof in the Final Prospectus.
(k) None of the Company or its Material Subsidiaries is (A) in
violation of its charter, bylaws or other organizational document or (B) in
default (or, with notice or lapse of time or both, would be in default) in
the performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note, indenture, mortgage, deed
of trust, loan agreement, lease, license, franchise agreement,
authorization, permit, certificate or other agreement or instrument to
which any of them is a party or by which any of them is bound or to which
any of their assets or properties is subject, or (C) in violation of any
law, statute, rule, regulation, judgment, order or decree of any domestic
or foreign court with jurisdiction over any of them or any of their assets
or properties or other governmental or regulatory authority, agency or
other body, that, in the case of clauses (B) and (C) above, would, either
individually or in the aggregate, result in a Material Adverse Effect.
There exists no condition that, with notice or lapse of time or both, would
constitute a default by the Company or any of its Material Subsidiaries
under any such document or instrument or
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result in the imposition of any penalty or the acceleration of any
indebtedness, other than penalties, defaults or conditions that would not,
either individually or in the aggregate, result in a Material Adverse
Effect.
(l) The execution, delivery or performance by the Company of
this Agreement does not violate, conflict with or constitute a breach of
any of the terms or provisions of, or a default under (or an event that
with notice or the lapse of time, or both, would constitute a default), or
require consent (except such consents as have been or will be obtained
prior to the Closing Date) under, or result in the creation or imposition
of a lien, charge or encumbrance on any property or assets of the Company
or any of its Material Subsidiaries pursuant to, (i) the charter, bylaws or
other organizational documents of the Company or any of its Material
Subsidiaries, (ii) any bond, debenture, note, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its Material Subsidiaries is a party or by which the Company or
any of its Material Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Material Subsidiaries is subject,
(iii) any law, statute, rule or regulation applicable to the Company or any
of its Material Subsidiaries or their assets or properties or (iv) any
judgment, order or decree of any domestic or foreign court or governmental
agency or authority having jurisdiction over the Company or any of its
Material Subsidiaries or their assets or properties, except in the cases of
clauses (ii), (iii) and (iv), such breaches, defaults or liens which would
not, or those consents, for which the failure to obtain would not, in each
case, either individually or in the aggregate, have a Material Adverse
Effect. No consent, approval, authorization or order of, or filing,
registration, qualification, license or permit of or with, any court or
governmental agency, body or administrative agency, domestic or foreign, is
required to be obtained or made by the Company for the execution, delivery
and performance of this Agreement or any of the transactions contemplated
hereby, except (A) such as have been or will be obtained or made prior to
Closing Date, (B) such as may be required by the National Association of
Securities Dealers, Inc. or (C) such as may be required by the securities
or blue sky laws of the various states. No consents or waivers from any
other person or entity are required for the execution, delivery and
performance of this Agreement or any of the transactions contemplated
hereby, except such as have been or will be obtained or made prior to the
Closing Date.
(m) There is (i) except as set forth in the Final Prospectus,
no action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending or,
to the knowledge of the Company or its subsidiaries, threatened or
contemplated, to which the Company or any of its subsidiaries is or may be
a party or to which the business, assets or property of such person is or
may be subject, (ii) except as set forth in the Final Prospectus, no
statute, rule, regulation or order that has been enacted, adopted or issued
or, to the knowledge of the Company or its subsidiaries, that has been
proposed by any governmental body or agency, domestic or foreign, (iii) no
injunction, restraining order or order of any nature by a federal or state
court or foreign court of competent jurisdiction to which the Company or
any of its subsidiaries is or may be subject that, in the case of clauses
(i), (ii) and (iii) above, is reasonably likely to, either individually or
in the aggregate, (x) result in a Material Adverse Effect, or (y) interfere
with or adversely affect the issuance of the Securities in
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any jurisdiction or adversely affect the consummation of the transactions
contemplated by this Agreement. Every request of any securities authority
or agency of any jurisdiction for additional information with respect to
Securities that has been received by the Company or its counsel prior to
the date hereof has been, or will prior to the Closing Date be, complied
with.
(n) No labor disturbance by the employees of the Company or any
of its subsidiaries exists or, to the actual knowledge of the Company is
imminent that might reasonably be expected to result in a Material Adverse
Effect; the Company and its Material Subsidiaries are in compliance in all
respects with, as applicable and except where a failure to so comply would
not have a Material Adverse Effect, all presently applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
unwaivable "reportable event" (as defined in ERISA) has occurred with
respect to any "employee pension benefit plan" (as defined in ERISA) for
which the Company or its Material Subsidiaries would have any liability;
none of the Company or its Material Subsidiaries has incurred or expects to
incur liability under (i) Title IV of ERISA with respect to termination of,
or withdrawal from, any "employee pension benefit plan" or (ii) Sections
412, 4971 or 4975 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "employee pension benefit plan" that is maintained or
contributed to by the Company or its Material Subsidiaries that is intended
to be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to that effect and
nothing has occurred, whether by action or by failure to act, that would
result in the revocation of such determination letter.
(o) Except as set forth in the Final Prospectus, the Company
and each of its Material Subsidiaries (i) is in compliance with, and not
subject to costs or liabilities under, any and all local, state,
provincial, federal and foreign laws, regulations, rules of common law,
orders and decrees, as in effect as of the date hereof, and any presently
effective judgments, decrees, orders and injunctions issued or promulgated
thereunder, in each case, relating to pollution or protection of public and
employee health and safety and the environment applicable to it or its
business or operations or ownership or use of its property ("Environmental
Laws"), other than such noncompliance or costs or liabilities that would
not, either individually or in the aggregate, result in a Material Adverse
Effect, and (ii) possesses all permits, licenses or other approvals
required under applicable Environmental Laws and has no reason to believe
all such permits, licenses and other approvals to expire within the next
five years will not be renewed or otherwise extended or reissued in due
course, in each case, other than such permits, licenses or approvals the
lack of which would not, either individually or in the aggregate, result in
a Material Adverse Effect. All currently pending and, to their knowledge,
threatened proceedings, notices of violation, demands, notices of potential
responsibility or liability, suits and existing environmental conditions
with respect to which the Company or its Material Subsidiaries could
reasonably be expected to have any liability are fully and accurately
described in all material respects in the Final Prospectus except as would
not, either individually or in the aggregate, result in a Material Adverse
Effect.
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(p) The Company and each of its Material Subsidiaries has (i)
good and marketable title to all of the properties and assets described in
the Final Prospectus as owned by it and good and marketable title to the
leasehold estates in the real and personal property described in the Final
Prospectus, Liens permitted under the Indenture, as leased by it, free and
clear of all mortgages, pledges, liens or other encumbrances of any nature
("Liens"), except for Liens described in the Final Prospectus, Liens
permitted under the Indenture and such Liens as would not, either
individually or in the aggregate, result in a Material Adverse Effect, (ii)
all licenses, certificates, permits, authorizations, approvals, franchises
and other rights from, and has made all declarations and filings with, all
federal, state, local and foreign authorities, all self-regulatory
authorities and all courts and other tribunals (each, an "Authorization")
to (a) carry on its business as it is currently being conducted and as
described in the Final Prospectus and (b) own, lease, license and operate
its respective properties in accordance with its business as currently
conducted, except for such Authorization the failure to maintain would not,
either individually or in the aggregate, result in a Material Adverse
Effect and (iii) no reason to believe that any governmental body or agency,
domestic or foreign, is considering limiting, suspending or revoking any
such Authorization. Except where the failure to be in full force and effect
and in compliance would not, either individually or in the aggregate,
result in a Material Adverse Effect, all such Authorizations are valid and
in full force and effect and the Company and each of its Material
Subsidiaries is in compliance with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such Authorizations. All
material leases to which the Company or any of its Material Subsidiaries is
a party are valid and binding, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceedings therefor may be brought and no default by the Company or any of
its Material Subsidiaries or, to the knowledge of the Company, any other
party thereto has occurred and is continuing thereunder, other than
defaults that would not, either individually or in the aggregate, result in
a Material Adverse Effect.
(q) The Company and each of its Material Subsidiaries owns,
possesses or has the right to employ all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, the "Intellectual Property") material to the conduct of the
businesses operated by it as described in the Final Prospectus. The Company
has not received any notice of infringement of or conflict with (and
neither knows of any such infringement or a conflict with) asserted rights
of others with respect to any of the foregoing that, if such assertion of
infringement or conflict were sustained, would result in a Material Adverse
Effect. The use of the Intellectual Property in connection with the
business and operations of the Company and its Material Subsidiaries does
not infringe on the rights of any person, except for any infringements that
would not result in a Material Adverse Effect.
(r) All tax returns required to be filed by the Company and
each of its Material Subsidiaries have been filed (or extensions have been
obtained) in all
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jurisdictions where such returns are required to be filed, other than such
returns the failure of which to file would not have a Material Adverse
Effect; and all taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such
entities or that are due and payable have been paid, other than those being
contested in good faith and for which reserves have been provided in
accordance with generally accepted accounting principles, those currently
payable without penalty or interest and those the failure of which to pay
would not have a Material Adverse Effect. To the knowledge of the Company
there are no material proposed additional tax assessments against the
Company or any of its Material Subsidiaries or their assets or property.
(s) None of the Company or its subsidiaries is 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"), or analogous foreign laws and regulations.
(t) The Company and its subsidiaries, taken as a whole,
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that: (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of its financial statements in
conformity with United States generally accepted accounting principles and
to maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization; and
(D) the recorded accountability for its assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(u) The Company and each of its Material Subsidiaries maintains
insurance covering its properties, assets, operations, personnel and
businesses, and such insurance is of such type and in such amounts in
accordance with customary industry practice to protect the Company and its
Material Subsidiaries and their businesses. The Company has not received
notice from any insurer or agent of such insurer that any material capital
improvements or other material expenditures will have to be made in order
to continue any insurance maintained by any of them other than capital
improvements and other expenditures that have been budgeted by the Company
or its Material Subsidiaries, as the case may be.
(v) The accountants who have certified the audited financial
statements included as part of or incorporated by reference in the Final
Prospectus are independent accountants within the meaning of the Act. The
historical financial statements of the Company comply as to form in all
material respects with the requirements applicable to registration
statements on Form S-3 under the Act and present fairly in all material
respects the consolidated financial position and results of operations of
the Company at the respective dates and for the respective periods
indicated. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods presented (except as disclosed in the Final
Prospectus) and comply as to form with the rules and regulations
promulgated under the Act. All other financial and statistical information
and
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data included or incorporated by reference in the Final Prospectus are
accurately presented in all material respects and prepared on a basis
consistent with the financial statements and the books and records of the
Company and its subsidiaries.
(w) The statistical and market-related data included in the
Final Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate.
(x) No forward-looking statement (within the meaning of Section
27A of the Act and Section 21E of the Exchange Act) contained in the Final
Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(y) Since the respective dates as of which information is given
in the Final Prospectus other than as set forth in the Final Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii)
there has not been any material adverse change or any development involving
a prospective material adverse change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) other
than in the ordinary course of business, neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent (except the Company or a subsidiary of the Company may enter
into a definitive agreement to acquire Colony Homes prior to the Closing.)
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
(ii) Each Selling Stockholder represents and warrants to, and agrees
with, each Underwriter that:
(a) Such Selling Stockholder is the record and beneficial owner
of the Securities to be sold by it hereunder free and clear of all liens,
encumbrances, equities and claims and has duly endorsed such Securities in
blank, and, assuming that each Underwriter acquires its interest in the
Securities it has purchased from such Selling Stockholder without notice of
any adverse claim (within the meaning of Section 8-105 of the New York
Uniform Commercial Code ("UCC")), each Underwriter that has purchased such
Securities delivered on the Closing Date to The Depository Trust Company or
other securities intermediary by making payment therefor as provided
herein, and that has had such Securities credited to the securities account
or accounts (within the meaning of Section 8-501(a) of the UCC) of such
Underwriters maintained with The Depository Trust Company or such other
securities intermediary will have acquired a security entitlement (within
the meaning of Section 8-102(a)(17) of the UCC)
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to such Securities purchased by such Underwriter, and no action based on an
adverse claim (within the meaning of Section 8-105 of the UCC) may be
asserted against such Underwriter with respect to such Securities (for
purposes of this representation, such Selling Stockholder may assume that
when such payment, delivery and crediting occur, The Depository Trust
Company or such other securities intermediary will be registered as a
"clearing corporation" within the meaning of Section 8-102 of the UCC).
(b) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(c) Certificates in negotiable form for such Selling
Stockholder's Securities have been placed in custody, for delivery pursuant
to the terms of this Agreement, under a Custody Agreement and Power of
Attorney duly executed and delivered by such Selling Stockholder, in the
form heretofore furnished to you (the "Custody Agreement") with Mellon
Investors Services LLC, as Custodian (the "Custodian"); the Securities
represented by the certificates so held in custody for each Selling
Stockholder are subject to the interests hereunder of the Underwriters; the
arrangements for custody and delivery of such certificates, made by such
Selling Stockholder hereunder and under the Custody Agreement, are not
subject to termination by any acts of such Selling Stockholder, or by
operation of law, whether by the death or incapacity of such Selling
Stockholder or the occurrence of any other event; and if any such death,
incapacity or any other such event shall occur before the delivery of such
Securities hereunder, certificates for the Securities will be delivered by
the Custodian in accordance with the terms and conditions of this Agreement
and the Custody Agreement as if such death, incapacity or other event had
not occurred, regardless of whether or not the Custodian shall have
received notice of such death, incapacity or other event.
(d) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except such as
may have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other approvals
as have been obtained.
(e) Neither the sale of the Securities being sold by such
Selling Stockholder nor the consummation of any other of the transactions
herein contemplated by such Selling Stockholder or the fulfillment of the
terms hereof by such Selling Stockholder will conflict with, result in a
breach or violation of, or constitute a default under any law or the terms
of any indenture or other agreement or instrument to which such Selling
Stockholder is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over such Selling Stockholder.
(f) Such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in this Section 1
are not true
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and correct, is familiar with the Registration Statement and has no
knowledge of any material fact, condition or information not disclosed in
the Final Prospectus or any supplement thereto which has adversely affected
or may adversely affect the business of the Company or any of its
subsidiaries; and the sale of Securities by such Selling Stockholder
pursuant hereto is not prompted by any information concerning the Company
or any of its subsidiaries which is not set forth in the Final Prospectus
or any supplement thereto.
(g) In respect of any statements in or omissions from the
Registration Statement or the Final Prospectus or any supplements thereto
made in reliance upon and in conformity with information furnished in
writing to the Company by any Selling Stockholder specifically for use in
connection with the preparation thereof, such Selling Stockholder hereby
makes the same representations and warranties to each Underwriter as the
Company makes to such Underwriter under paragraph (i)(b) of this Section.
Any certificate signed by any Selling Stockholder and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by such Selling
Stockholder, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the Company
and the Selling Stockholders agree, severally and not jointly, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company and the Selling Stockholders, at a purchase price of $32.215
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 and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ hereby grant an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of 525,000 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
on or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Company and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 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 maximum number of Option Securities to be sold
by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is 200,000 and the maximum number of Option
Securities to be sold by the Company is 325,000. In the event that the
Underwriters exercise less than their full over-allotment option, the
number of Option Securities to be purchased by the Underwriters shall be
first purchased from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, up to 200,000 shares, and the
remainder from the Company. The number of 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.
11
3. Delivery and Payment. 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 on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
May 8, 2002, or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement among the Representatives, the Company
and the Selling Stockholders or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the respective aggregate purchase
prices of the Securities being sold by the Company and each of the Selling
Stockholders to or upon the order of the Company and the Selling Stockholders by
wire transfer payable in same-day funds to the accounts specified by the Company
and the Selling Stockholders. 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.
Each Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the several Underwriters of the Securities
to be purchased by them from such Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ will deliver the Option Securities (at the expense of the Company) to
the Representatives, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option, but not prior to the Closing Date) 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 and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ by wire transfer payable in
same-day funds to the accounts specified by the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
If settlement for the Option Securities occurs after the Closing Date, the
Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 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. It is understood that the several
------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements.
----------
(i) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not
12
file any amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement relating to such
offering unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final 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
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final 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, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(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 Final 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 Final 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 (i)(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 Final 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 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.
13
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Final Prospectus and the Final 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 use its best efforts to 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., 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
acting in concert 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 (i) grant awards under and issue and sell Common Stock
pursuant to any employee stock incentive plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution Time,
(ii) issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time, and (iii) offer,
issue and sell the number of shares of Common Stock equal to 10% of the
then outstanding shares of Common Stock, or warrants to purchase such
number of shares of Common Stock, in one or more transactions in connection
with the acquisition of third party capital stock or assets (including,
without limitation, by way of merger or consolidation), provided that if
such transaction is consummated prior to the expiration of such 90 day
period, the recipient agrees in writing with the Underwriters to
substantially the same restrictions on transfer as set forth in this
Section 5(i)(f).
(g) 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
14
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.
(h) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Final
Prospectus, the Final 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, each Preliminary Final
Prospectus, the Final Prospectus, and all amendments or supplements to any
of them, as may, in each case, 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 or transfer taxes in
connection with the original issuance and sale of the Securities; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the listing of
the Securities on the New York Stock Exchange; (vi) any registration or
qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to
such registration and qualification); (vii) any filings required to be made
with the National Association of Securities Dealers, Inc. (including filing
fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (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; and (x) all
other costs and expenses incident to the performance by the Company of its
obligations hereunder.
(ii) Each Selling Stockholder agrees with the several Underwriters
that:
(a) Such Selling Stockholder will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., 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 Selling Stockholder
or any affiliate of the Selling Stockholder or any person acting in concert
with the Selling Stockholder or any affiliate of the Selling Stockholder)
directly or indirectly, or file (or participate 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
with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such transaction,
for a period of 90 days after the date of this Agreement, other than shares
of Common Stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc.
15
(b) Such Selling Stockholder will not take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by an underwriter or dealer may
be required under the Act, of (i) any material change in the Company's
condition (financial or otherwise), prospects, earnings, business or
properties which comes to the attention of such Selling Stockholder, (ii)
any change in information in the Registration Statement or the Final
Prospectus relating to such Selling Stockholder or (iii) any new material
information relating to the Company or relating to any matter stated in the
Final Prospectus which comes to the attention of such Selling Stockholder.
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 and the Selling
Stockholders contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Selling Stockholders made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time on the date of determination of the
public offering price, if such determination occurred at or prior to 3:00
PM New York City time on such date or (ii) 9:30 AM on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) (1) The Company shall have requested and caused ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Company and each of the Material Subsidiaries
(other than Westbrooke Acquisition Corp., The Westbrooke Companies,
Inc. and Westbrooke Communities, Inc., collectively, the "Westbrooke
Entities") have been duly organized and are validly existing as
corporations or partnerships, as applicable;
16
(ii) the execution and delivery of this Agreement have
been duly authorized by all necessary corporate action of the Company
and this Agreement has been duly executed and delivered by the
Company;
(iii) the issuance, offering and sale of the Securities to
the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement
and the consummation of the transactions herein contemplated do not
(A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state securities
or blue sky laws, or (B) violate any statute, rule or regulation known
to such counsel and applicable to the Company or any of the Material
Subsidiaries;
(iv) the Registration Statement has become effective
under the Act, and to such counsel's knowledge no stop order
suspending its effectiveness has been issued and no proceedings for
that purpose are pending before or contemplated by the Commission;
(v) the statements under the caption "Description of
Common Stock" in the prospectus supplement constituting part of the
Final Prospectus, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings;
(vi) the Company is not or, after giving effect to the
offering and sale of the Securities and the application of the net
proceeds thereof as described in the Final Prospectus, will not be, an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended;
(vii) the Company and each of the Material Subsidiaries
(other than the Westbrooke Entities) are in good standing under the
laws of their respective jurisdictions of organization, and are duly
qualified to transact business as foreign corporations or partnerships
and are in good standing under the laws of each jurisdiction
identified in a certificate of the Company, executed by the Chief
Executive Officer and the Senior Vice President-Finance of the Company
(the "Officers' Certificate"), as being jurisdictions in which any of
such entities owns or leases property, maintains or has an office or
is engaged in the business of developing real property, building and
selling homes, except where the failure to be so qualified would not
result in material liability or disability to the Company and its
subsidiaries, taken as a whole;
(viii) the Company's authorized equity capitalization is as
set forth in the Final Prospectus; the outstanding shares of Common
Stock (including the Securities being sold hereunder by the Selling
Stockholders) have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities being sold hereunder by
the Company have been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters
17
pursuant to this Agreement, will be fully paid and nonassessable; and
the certificates for the Securities are in valid and sufficient form;
(ix) the Company and each of the Material Subsidiaries
(other than the Westbrooke Entities) have the corporate or partnership
power to own or lease their respective properties and conduct their
respective businesses as described in the Final Prospectus, and the
Company has the corporate power to enter into this Agreement and to
carry out all the terms and provisions thereof to be carried out by
it;
(x) the issued shares of capital stock of each of the
Material Subsidiaries (other than Standard Pacific of Texas, L.P. and
the Westbrooke Entities) have been duly authorized and validly issued,
are fully paid and nonassessable; the issued partnership interests of
Standard Pacific of Texas, L.P. have been duly and validly issued; and
all such shares and partnership interests are owned of record by the
Company or a wholly owned subsidiary of the Company and, to the
knowledge of such counsel, free and clear of any other security
interests, liens, encumbrances or claims;
(xi) to the knowledge of such counsel, no holders of
outstanding shares of capital stock of the Company are entitled as
such to any preemptive or other rights to subscribe for any of the
Securities;
(xii) to the knowledge of such counsel without
investigation of court records, no legal or governmental proceedings
are pending to which the Company or any of its Material Subsidiaries
(other than the Westbrooke Entities) is a party or to which the
property of the Company or any of its Material Subsidiaries (other
than the Westbrooke Entities) is subject that are required to be
described in the Final Prospectus and are not described therein and no
such proceedings have been threatened against the Company or any of
its Material Subsidiaries (other than the Westbrooke Entities) or with
respect to any of their respective properties;
(xiii) the issuance, offering and sale of the Securities to
the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement
and the consummation of the other transactions herein and therein
contemplated do not (A) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its Material
Subsidiaries or any of their respective properties are bound, which is
identified in the Officers' Certificate as being material to the
business of the Company (the "Material Agreements"), or any judgment,
decree or order of any court or other governmental authority or any
arbitrator applicable to the Company or any of the Material
Subsidiaries which is identified in the Officers' Certificate as being
material to the business of the Company, or (B) conflict with or
result in a breach or violation of the charter
18
documents or by-laws of the Company or any of its Material
Subsidiaries (other than the Westbrooke Entities);
(xiv) to such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities for
sale with the sale of the Securities hereunder; and
(xv) (A) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Final Prospectus
(except for financial statements and other financial data included
therein as to which no opinion need be expressed) complied when so
filed as to form with the Exchange Act in all material respects, (B)
the Registration Statement and the Final Prospectus and any supplement
or amendment thereto (except for the financial statements and other
financial data included therein as to which no opinion need be
expressed) comply as to form with the Act in all material respects,
(C) nothing has come to the attention of such counsel which causes
them to believe that at March 21, 2002 the Registration Statement and
the Basic Prospectus included therein (except for the financial
statements and other financial data as to which such counsel need not
express any belief) contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (D)
nothing has come to the attention of such counsel which causes them to
believe that the Final Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other financial
data, as aforesaid), as of its date or the date of such opinion,
contained or contains any untrue statement of a material fact or
omitted or omits 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.
In rendering such opinion, such counsel may rely 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 Final Prospectus in this
paragraph (b)(1) include any supplements thereto at the Closing Date.
(2) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
P.A., its special Florida counsel, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) each of the Westbrooke Entities have been duly
organized and are validly existing as corporations;
(ii) the Westbrooke Entities are in good standing under
the laws of their respective jurisdictions of organization, and are
duly qualified to transact business as foreign corporations and are in
good standing under the laws of each jurisdiction identified in the
Officers' Certificate as being jurisdictions in which any of such
entities owns or leases property, maintains or has an office or is
engaged in the business of developing real property, building and
selling homes,
19
except where the failure to be so qualified would not result in
material liability or disability to the Company and its subsidiaries,
taken as a whole;
(iii) each of the Westbrooke Entities have the corporate
power to own or lease their respective properties and conduct their
respective businesses as described in the Final Prospectus;
(iv) the issued shares of capital stock of each of the
Westbrooke Entities have been duly authorized and validly issued, are
fully paid and nonassessable; and all such shares are owned of record
by the Company or a wholly owned subsidiary of the Company and, to the
knowledge of such counsel, free and clear of any other security
interests, liens, encumbrances or claims; and
(v) to the knowledge of such counsel without
investigation of court records, no legal or governmental proceedings
are pending to which the Westbrooke Entities is a party or to which
the property of the Westbrooke Entities is subject that are required
to be described in the Final Prospectus and are not described therein
and no such proceedings have been threatened against the any of the
Westbrooke Entities or with respect to any of their respective
properties.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Florida or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Final Prospectus in
this paragraph (b)(2) include any supplements thereto at the Closing Date.
(c) The Selling Stockholders shall have requested and caused ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders, to have
furnished to the Representatives their opinion dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of
Attorney have been duly executed and delivered by the Selling
Stockholders, the Custody Agreement is valid and binding on the
Selling Stockholders and, to such counsel's knowledge, each Selling
Stockholder has full right and authority to sell, transfer and deliver
in the manner provided in this Agreement and the Custody Agreement the
Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the
Securities it has purchased from such Selling Stockholder without
notice of any adverse claim (within the meaning of Section 8-105(a) of
the UCC), each Underwriter that has purchased such Securities
delivered on the Closing Date to The Depository Trust Company or other
securities intermediary by making payment therefor as provided herein,
and that has had such Securities credited to
20
the securities account or accounts (within the meaning of Section 8-501(a)
of the UCC) of such Underwriters maintained with The Depository Trust
Company or such other securities intermediary will have acquired a security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such
Securities purchased by such Underwriter, and no action based on an adverse
claim (within the meaning of Section 8-105 of the UCC) may be asserted
against such Underwriter with respect to such Securities (for purposes of
this opinion, such counsel may assume that when such payment, delivery and
crediting occur, The Depository Trust Company or such other securities
intermediary will be registered as a "clearing corporation" within the
meaning of Section 8-102 of the UCC);
(iii) no consent, approval, authorization or order of any
governmental authority is required for the consummation by any Selling
Stockholder of the transactions contemplated herein, except such as may
have been obtained under the Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any
Selling Stockholder nor the consummation of any other of the transactions
herein contemplated by any Selling Stockholder or the fulfillment of the
terms hereof by any Selling Stockholder will conflict with, result in a
breach or violation of, or constitute a default under any law or the terms
of any agreement or instrument to which any Selling Stockholder is a party
or bound, which is identified in a certificate signed by the Selling
Stockholder (the "Selling Stockholder Certificate") as being material to
the Selling Stockholder, or any judgment, order or decree applicable to any
Selling Stockholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over any Selling
Stockholder, which is identified in the Selling Stockholder Certificate as
being material to the Selling Stockholder.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent they deem proper, on certificates of the Selling Stockholders
and public officials.
(d) The Representatives shall have received from O'Melveny & ▇▇▇▇▇
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 Final
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company and each
Selling Stockholder shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Senior Vice President - Finance
and Chief Financial Officer and Senior Vice President, General Counsel and
Secretary of the Company, dated the Closing Date, to the effect that the
signers of such certificate have
21
carefully examined the Registration Statement, the Final Prospectus, any
supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
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 Final Prospectus (exclusive of any
supplement thereto).
(f) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed by such Selling Stockholder, dated
the Closing Date, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement and that the
representations and warranties of such Selling Stockholder in this
Agreement are true and correct on and as of the Closing Date to the same
effect as if made on the Closing Date.
(g) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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
included or incorporated by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of
the Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of
22
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders and
directors of the Company; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
of the Company and its subsidiaries, nothing came to their attention
which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the related rules and regulations adopted by the Commission
with respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus; and
(2) with respect to the period subsequent to
December 31, 2001, there were any changes, at a specified date
not more than five days prior to the date of the letter, in the
homebuilding debt of the Company and its subsidiaries or capital
stock of the Company or decreases in the stockholders' equity of
the Company as compared with the amounts shown on the December
31, 2001, consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Final Prospectus,
or for the period from January 1, 2002 to such specified date
there were any decreases, as compared with the corresponding
period in the preceding year, in homebuilding revenues, net
income or net income per share, 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; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the Final
Prospectus and in Exhibit 12 to the Registration Statement, including
the information set forth under the captions "Summary - Summary
Consolidated Financial Information and Operating Data" and
"Capitalization" in the prospectus supplement constituting part of the
Final Prospectus, and the information included or incorporated by
reference in Items 1, 2, 6, 7, 7A and 11 of the Company's Annual
Report on Form 10-K, incorporated by reference in the Registration
Statement and the Final Prospectus, agrees with the accounting records
of the Company and its subsidiaries, excluding any questions of legal
interpretation.
23
References to the Final Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) 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 Final 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 (g) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final 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 Final Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(j) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(k) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A hereto
from each executive officer and director of the Company addressed to the
Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company and
each Selling Stockholder in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of O'Melveny & ▇▇▇▇▇ LLP, counsel for the Underwriters,
at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the
24
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 or any Selling Stockholders 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 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. If the Company is required to make any payments to the
Underwriters under this Section 7 because of any Selling Stockholder's refusal,
inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, the Selling Stockholder, pro rata in
--------
proportion to the percentage of Securities to be sold by such Selling
Stockholder, shall reimburse the Company on demand for all amounts so paid.
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 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 the Basic
Prospectus, any Preliminary Final Prospectus or the Final 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 and; provided, further, that with respect to
any untrue statement or omission of material fact made in any Preliminary Final
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 Final Prospectus to the Representatives,
(x) delivery of the Final 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 Final Prospectus was corrected in the Final Prospectus and (z) there
was not sent or given to such person, at or prior to the written confirmation of
the sale of such securities to such person, a copy of the Final Prospectus. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
25
(b) Each Selling Stockholder severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls the Company or any
Underwriter within the meaning of either the Act or the Exchange Act and each
other Selling Stockholder, if any, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to written
information furnished to the Company by or on behalf of such Selling Stockholder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Selling Stockholder may otherwise have.
(c) 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 and each Selling
Stockholder, to the same extent as the foregoing indemnity to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and each Selling
Stockholder acknowledge that the statements set forth in the last paragraph of
the cover page regarding delivery of the Securities and, under the heading
"Underwriting", (i) the third paragraph, (ii) the paragraphs related to
stabilization, syndicate covering transactions and penalty bids, (iii) the last
clause of the twelfth paragraph and (iv) the fourteenth paragraph in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Final Prospectus or the Final Prospectus.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a), (b) or (c) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) 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
26
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Selling Stockholders and the
Underwriters 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, one or more of the Selling Stockholders 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, by the Selling Stockholders and by
the Underwriters 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, the Selling Stockholders and the Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, of the Selling Stockholders and of the
Underwriters 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 and by the Selling Stockholders shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by each of them, 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 Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Company, the Selling Stockholders 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, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter 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
27
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (e).
9. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
-------- -------
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Selling Stockholders 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 Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company, the Selling Stockholders 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 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
Final 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, of each Selling Stockholder 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,
any Selling Stockholder or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive
28
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
Standard Pacific Corp., Corporate Secretary (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to it at Standard Pacific Corp., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary, with a copy to ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; or if sent to any Selling Stockholder, will
be mailed, delivered or telefaxed and confirmed to it at the address set forth
in Schedule II hereto, with a copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date.
"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 or Los Angeles.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement,
29
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.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Indenture" shall mean the Indenture, dated as of April 10, 2002, as
amended by the First Supplemental Indenture, dated as of April 10, 2002,
between the Company and Bank One Trust Company, N.A., as trustee.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to the filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
Standard Pacific Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President-Finance and
Chief Financial Officer
SELLING STOCKHOLDERS
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
as JTWROS
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
S-1
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Credit Suisse First Boston Corporation
Banc of America Securities LLC
Deutsche Bank Securities Inc.
UBS Warburg LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇
------------------
Name: H. ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
S-2
SCHEDULE I
----------
Number of Underwritten
Underwriters Securities to be Purchased
------------ --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. .................... 1,225,000
Credit Suisse First Boston Corporation ....... 1,225,000
Banc of America Securities LLC ............... 350,000
Deutsche Bank Securities Inc. ................ 350,000
UBS Warburg LLC .............................. 350,000
-----------------------
Total ........................................ 3,500,000
=======================
SCHEDULE II
-----------
Maximum Number of
-----------------
Number of Underwritten Option Securities
---------------------- -----------------
Selling Stockholders Securities to be Sold to be Sold
-------------------- --------------------- ----------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ............... 500,000 200,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ as
JTWROS ........................... 500,000 0
------------- -------------
Total ................... 1,000,000 200,000
============= =============
