COLONIAL PROPERTIES TRUST (an Alabama Real Estate Investment Trust) Common Shares of Beneficial Interest TERMS AGREEMENT
Exhibit 1.2
(an Alabama Real Estate Investment Trust)
Common Shares of Beneficial Interest
Dated: September 15, 2005
| To: | COLONIAL PROPERTIES TRUST 0000 0xx Xxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 |
Attention: Chairman of the Board of Trustees
Ladies and Gentlemen:
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and
Wachovia Capital Markets, LLC, on their own behalf and as representatives of certain underwriters
named below (collectively, the “Underwriters”) understand that Colonial Properties Trust, an
Alabama real estate investment trust (the “Company”), proposes to issue and sell the number of its
common shares of beneficial interest, $.01 par value (the “Underwritten Securities”) specified
herein. Subject to the terms and conditions set forth and incorporated by reference herein, the
Underwriters, acting severally and not jointly, offer to purchase the number of Initial
Underwritten Securities set forth below opposite their respective name at the purchase price set
forth below.
| Number of | ||||
| Initial | ||||
| Underwritten | ||||
| Underwriter | Securities | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
1,800,000 | |||
Wachovia Capital Markets, LLC |
1,215,000 | |||
Bear, Xxxxxxx & Co. Inc |
585,000 | |||
Banc of America Securities LLC |
315,000 | |||
Xxxxxx Xxxxxx & Company, Inc |
292,500 | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
292,500 | |||
Total |
4,500,000 | |||
The Underwritten Securities shall have the following terms:
Title :
Common Shares of Beneficial Interest, $.01 par value (the “Common Shares”)
Number of Initial Underwritten Securities:
4,500,000 shares
Number of Option Securities:
675,000 shares
Initial public offering price per share:
$ 43.75
Purchase price per Initial Underwritten Security:
$ 41.6719
Purchase price per Option Security:
$ 41.6719, less the amount of any distribution payable with respect to an Initial
Underwritten Security but not payable with respect to an Option Security.
Underwriters’ discount:
$ 2.0781
Concession:
$ 1.24
Reallowance:
$ 0.10
Delayed Delivery Contracts:
Not authorized
Black-out provisions:
Neither the Company nor the Operating Partnership will, during a period commencing on
the date of this Terms Agreement and ending on the 90th day after such date,
without the prior written consent of Xxxxxxx Xxxxx, directly or indirectly, offer or sell,
grant any option for the sale of, or enter into any agreement to sell, any Common Shares or
securities convertible into or exercisable or exchangeable for any Common Shares, except for
(i) Common Shares issued pursuant to this Terms Agreement, (ii) Common Shares that may be
issued pursuant to dividend reinvestment and stock purchase plans, employee and trustee
stock option and restricted stock plans, (iii) Common Shares that may be issued pursuant to
redemption of limited partnership interests of the Operating Partnership or (iv) limited
partnership units of the Operating Partnership as partial or full payment for properties
acquired or to be acquired by the Company, the Operating Partnership or an affiliate of the
Company (including mortgage or leasehold interests or in conjunction with any joint venture
transaction to which the Company, the Operating Partnership or an affiliate of the Company
is or becomes a party).
Lock-up provisions:
At the Closing Time, each of the executive officers of the Company shall have entered into
an agreement substantially in the form of Exhibit 1 hereto.
Other terms and conditions:
None
Closing time, date and location:
Sidley Xxxxxx Xxxxx & Xxxx llp, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:00
A.M., Eastern Time, on September 21, 2005.
All the provisions contained in the Underwriting Agreement of even date herewith among the
Underwriters, the Company and the Operating Partnership are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement to the same extent
as if such provisions had been set forth in full herein. Terms defined in such document are used
herein as therein defined.
Please accept this offer by signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us.
| Very truly yours, | ||||
| XXXXXXX XXXXX & CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
| By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX | ||||
| INCORPORATED | ||||
| By: | /s/ Alexander Virtue | |||
| Name: Alexander Virtue | ||||
| Title: Vice President, Investment Banking | ||||
| WACHOVIA CAPITAL MARKETS, LLC | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx, Xx. | |||
| Name: Xxxxxxx X. Xxxxxxxxxx, Xx. | ||||
| Title: Vice President | ||||
| On their own behalf and as
Representatives of the others Underwriters named above. |
||||
| Accepted: | ||||
| COLONIAL PROPERTIES TRUST | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | ||||
| Title: Chief Financial Officer | ||||
| COLONIAL REALTY LIMITED PARTNERSHIP, | ||||
| the Operating Partnership | ||||
By:
|
Colonial Properties Trust | |||
| (its general partner) | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | ||||
| Title: Chief Financial Officer | ||||
Exhibit 1
Lock-Up Agreement
September 15, 2005
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
and
Wachovia Capital Markets, LLC
As representatives of the several underwriters named
in the Terms Agreement of even date herewith
in the Terms Agreement of even date herewith
| x/x | Xxxxxxx Xxxxx & Xx. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 0 Xxxxx Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000 |
Re: Colonial Properties Trust Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (“Xxxxxxx Xxxxx”) and Wachovia Capital Markets, LLC, on their own behalf and as
representatives of certain underwriters (collectively, the “Underwriters”), propose to enter into
an Underwriting Agreement and a related Terms Agreement, each expected to be dated on or about
September 15, 2005 with Colonial Properties Trust, an Alabama real estate investment
trust (the “Company”) and Colonial Realty Limited Partnership, a Delaware limited partnership (the
“Operating Partnership”), relating to the public offering (the “Public Offering”) of up to
5,175,000 common shares of beneficial interest, par value $0.01 per share, of the Company (the
“Common Shares”, and such 5,175,000 Common Shares, the “Underwritten Securities”), including
675,000 Common Shares which may be issued upon exercise by the Underwriters of their option to
purchase Common Shares to cover any over-allotments, pursuant to a Registration Statement on Form
S-3 filed with the Securities and Exchange Commission.
In consideration of the agreement by the Underwriters to purchase the Underwritten Securities,
the undersigned agrees that, during the period beginning from the date of the prospectus supplement
covering the public offering of the Underwritten Securities and continuing to and including the
date 90 days after the date of such prospectus supplement, the undersigned will not directly or
indirectly offer or sell, grant any option for the sale of, or enter into any agreement to sell any
Common Shares or any securities convertible into or exercisable or exchangeable for any Common
Shares.
The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any
hedging or other transaction which is designed to or which reasonably could be expected to lead to
or result in a sale or disposition of the undersigned’s Common Shares or any securities convertible
into or exercisable or exchangeable for any Common Shares even if such Common Shares or other
securities would be disposed of by someone other than the undersigned. Such prohibited hedging or
other transactions would include without limitation any short sale or any purchase, sale or grant
of any right (including without limitation any put or call option) with respect to any of the
undersigned’s Common Shares or any securities convertible into or exercisable or exchangeable for
any Common Shares or with respect to any security that includes, relates to, or derives any
significant part of its value from such securities.
Notwithstanding the foregoing, the undersigned may transfer any of Common Shares or any
securities convertible into or exercisable or exchangeable for any Common Shares (a) by gift, will
or intestate succession to members of the undersigned’s immediate family or to trusts the
beneficiaries of which are exclusively the undersigned and/or one or more members of the
undersigned’s immediate family, so long as such family members or trusts agree to the same 90-day
limitation specified above and (b) with the prior written consent of Xxxxxxx Xxxxx.
The undersigned understands that the Company, the Operating Partnership and the Underwriters
are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering.
The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding
upon the undersigned’s heirs, legal representatives, successors, and assigns.
| Very truly yours, | ||
| Exact Name of Shareholder | ||
| Signature |
