SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 10, 1997
Cousins Properties Incorporated
(Exact name of registrant as specified in its charter)
Georgia 2-20111 58-086952
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2500 Windy Ridge Parkway, Atlanta, Georgia 30339
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 955-2200
-1-
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Item 5. Other Events
Cousins Properties Incorporated (the "Registrant") is filing this
Current Report on Form 8-K so as to file with the Securities and Exchange
Commission certain items that are to be incorporated by reference into its
Registration Statement on Form S-3 (Registration No.
333-12031).
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1 - Underwriting Agreement between the Registrant and the
Underwriters named therein dated as of December 10, 1997
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
COUSINS PROPERTIES INCORPORATED
(Registrant)
Date: December 11, 1997 By: /s/ Tom G. Charlesworth
Tom G. Charlesworth
Senior Vice President, General
Counsel and Secretary
(Authorized Officer)
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<PAGE>
EXHIBIT INDEX
Exhibit Number and Description Page
1- Underwriting Agreement between the Registrant and the
Underwriters named therein dated as of December 10, 1997 5
-4-
<PAGE>
Exhibit 1
2,150,000 Shares
COUSINS PROPERTIES INCORPORATED
(a Georgia corporation)
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
December 10, 1997
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs:
Cousins Properties Incorporated, a Georgia corporation (the
"Company"), confirms its agreement with Morgan Stanley & Co. Incorporated
("Morgan Stanley") and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") (Morgan Stanley and Merrill Lynch, collectively, the
"Underwriters") with respect to the sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the number of shares of
common stock, $1.00 par value, of the Company (the "Common Stock") set forth in
Schedule A hereto, except as may otherwise be provided in the Pricing Agreement,
as hereinafter defined, and with respect to the grant by the Company to the
Underwriters of the option described in Section 2 hereof to purchase all or any
part of an additional 322,500 shares to cover over-allotments. The aforesaid
2,150,000 shares (the "Initial Shares"), together with all or any part of the
322,500 shares subject to the option described in Section 2 hereof (the "Option
Shares"), are collectively hereinafter called the "Shares."
Prior to the purchase and public offering of the Shares by the
several Underwriters, the Company and the Underwriters shall enter into an
agreement substantially in the form of Exhibit A hereto (the "Pricing
Agreement"). The Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Company and the
Underwriters and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be deemed
to incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-12031) including a prospectus relating to the Shares and has filed or shall
promptly hereafter file with, or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Shares pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"1933 Act"). The term Registration Statement means the registration statement as
amended to the date of this Agreement. The term Basic Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means the
Basic Prospectus together with the Prospectus Supplement. As used herein, the
terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act").
If the Company files a registration statement to register
additional shares of Common Stock and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462(b) Registration Statement"), then any reference to the "Registration
Statement" shall be deemed to refer to both the registration statement referred
to above and the Rule 462(b) Registration Statement, in each case as amended
from time to time.
The Company understands that the Underwriters propose to make
a public offering of the Shares after the Pricing Agreement has been executed
and delivered.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as
of the date hereof and as of the date of the Pricing Agreement (such latter date
being hereinafter referred to as the "Representation Date") as follows:
(i) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(ii) (a) Each document filed or to be filed pursuant to the
1934 Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the
requirements of the 1934 Act and the applicable rules and regulations
of the Commission thereunder, and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective did not, and at Closing Time will not, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (b) each part of the Registration Statement,
when such part became effective, did not contain and each such part, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (c) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the 1933 Act and the applicable rules and
regulations of the Commission thereunder and (d) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact 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 Section
1(a)(ii) do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information concerning the
Underwriters furnished to the Company in writing by such Underwriter
expressly for use therein.
(iii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Georgia, with full power and authority (corporate and other) to own
its properties and conduct its business; Cousins Real Estate
Corporation ("CREC"), Cousins MarketCenters, Inc., formerly known as
Cousins/New Market Development Company, Inc. ("CNM"), Cousins, Inc.
("CI") and each partnership or joint venture (a "partnership") or
limited liability company (an "LLC") at least 50% of the equity
ownership of which is directly or indirectly owned by the Company,
CREC, CNM or CI, or of which the Company, CREC, CNM or CI directly or
indirectly controls the controlling general partner or managing member,
whether in the form of a general, special, or limited partnership or
LLC and which owns real property or other assets which are described in
the Prospectus (each such corporation or other entity, a "Related
Entity") has been duly incorporated (in the case of corporate Related
Entities) or duly formed (in the case of partnership or LLC Related
Entities) and is validly existing as a corporation in good standing or
is validly existing as a general or limited partnership, or as an LLC,
as the case may be, under the laws of its jurisdiction of organization,
with the corporate power, partnership power or LLC power, as the case
may be, and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus; the Company and
each such Related Entity is in compliance with all laws requiring their
qualification to do business as foreign corporations or foreign
partnerships in all other jurisdictions in which they respectively own
or lease substantial properties or maintain their respective principal
offices or in which the conduct of their respective businesses requires
such qualification, except where failure to so qualify would not have a
material adverse effect on the Company and the Related Entities
considered as one enterprise; the outstanding shares of capital stock
of such corporate Related Entities have been duly authorized and
validly issued and are fully paid and non-assessable; and the Company
owns the equity interests of such partnership and LLC Related Entities,
free and clear of all liens and encumbrances, except as otherwise
disclosed in the Prospectus. Other than the ownership by the Company of
CI and by CREC of CNM and the ownership by certain Related Entities of
certain corporations whose existence and operations are not material to
the Company, the Company and the Related Entities do not, directly or
indirectly, own at least 50% of the voting common stock of any
corporation. Other than the Related Entities, the Company does not,
directly or indirectly, own 50% of the equity ownership of any entity
that is material to the Company. The Company does not, directly or
indirectly, own any real property or other assets which are not
described in the Prospectus and which are material to the assets of the
Company and the Related Entities considered as one enterprise.
(iv) Neither the execution nor the delivery of this Agreement
and the Pricing Agreement nor the sale of the Shares nor the
consummation of the transactions herein contemplated will result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any material contract, indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any of
the Related Entities is a party or by which it or any of them is bound
or to which any of the property or assets of the Company or any of the
Related Entities is subject or any statute or the certificate of
incorporation or by-laws of the Company or any of the Related Entities,
or any decree, judgment, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of the Related Entities or over their respective properties; no
consent, approval, authorization or order of, or filing with, any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Shares, except such as may be required under
the 1933 Act or state securities laws and real estate syndication laws.
(v) All outstanding shares of the Company's Common Stock have
been duly authorized and validly issued, are fully paid and
non-assessable and conform in all material respects to the description
thereof contained in the Prospectus. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus under "Capitalization" (except for subsequent issuances, if
any, pursuant to the Company's Dividend Reinvestment Plan, employee
benefit plans or director stock plans referred to in the Registration
Statement); the Shares have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and the Pricing
Agreement and, when issued and delivered by the Company pursuant to
this Agreement and the Pricing Agreement against payment of the
consideration therefor, will be validly issued and fully paid and
non-assessable; the issuance of the Shares is not subject to preemptive
or other similar rights; and the Shares are listed for trading on the
New York Stock Exchange.
(vi) Neither the Company nor any of the Related Entities is in
violation of its certificate of incorporation, partnership agreement or
similar document or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of the Related Entities is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of the Related Entities is
subject, except for any such violation or default that would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and
the Related Entities considered as one enterprise.
(vii) With respect to all tax periods regarding which the
Internal Revenue Service is or will be entitled to assert any claim,
the Company has met the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet such
requirements.
(viii) The Company and the Related Entities have all necessary
consents, authorizations, approvals, orders, certificates and permits
issued by the appropriate state, federal or foreign regulatory agencies
or bodies to conduct the businesses now operated by them, except where
the failure to have such consents, authorizations, approvals, orders,
certificates and permits would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and the Related Entities
considered as one enterprise, and neither the Company nor any of the
Related Entities has received any notice of proceedings relating to the
revocation or modification of any such consent, authorization,
approval, order, certificate or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, would have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and
the Related Entities considered as one enterprise.
(ix) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company or any of the Related Entities which might have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and the
Related Entities considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might materially
and adversely affect the offering of the Shares.
(x) Neither the Company nor any of the Related Entities is
required to own or possess any trademarks, service marks, trade names
or copyrights in order to conduct the business now operated by it,
other than those which it has a valid right to use or other than those
the failure to possess or own would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and the Related Entities
considered as one enterprise.
(xi) The financial statements of the Company and any Related
Entities together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement present fairly
the consolidated financial position and the results of operations of
the Company and the Related Entities at the indicated dates and for the
indicated periods. Such financial statements have been prepared in
accordance with generally accepted principles of accounting,
consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of results for such
periods have been made. The summary financial and statistical data
included in the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with the financial
statements presented or incorporated by reference therein.
(xii) Except as otherwise disclosed in the Prospectus or
except as would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and the Related Entities considered as one
enterprise: (i) all properties and assets described in the Prospectus
as owned by the Company or the Related Entities are owned with good and
marketable title by the Company or the Related Entities; (ii) all of
the leases under which any of the Company or the Related Entities holds
or uses real properties or assets as a lessee are in full force and
effect, and neither the Company nor any of the Related Entities is in
material default in respect of any of the terms or provisions of any of
such leases and no claim has been asserted by anyone adverse to any
such party's rights as lessee under any of such leases, or affecting or
questioning any such party's right to the continued possession or use
of the leased property or assets under any such leases; (iii) all
liens, charges, encumbrances, claims, or restrictions on or affecting
the properties and assets of any of the Company or the Related Entities
which are required to be disclosed in the Prospectus are disclosed
therein; (iv) none of the Company or any of the Related Entities or any
lessee of any portion of any such party's properties is in default
under any of the leases pursuant to which the Company or any of the
Related Entities leases its properties and neither the Company nor any
of the Related Entities knows of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default
under any of such leases; (v) no tenant under any of the leases
pursuant to which any of the Company or the Related Entities leases its
properties has an option or right of first refusal to purchase the
premises demised under such lease; (vi) each of the properties of any
of the Company or the Related Entities complies with all applicable
codes and zoning laws and regulations; and (vii) none of the Company or
any of the Related Entities has knowledge of any pending or threatened
condemnation, zoning change, or other proceeding or action that will in
any manner affect the size of, use of, improvements on, construction
on, or access to the properties of any of the Company or the Related
Entities. To the best of the Company's knowledge, each lease of real
property by the Company or any Related Entity as lessor requiring
annual lease payments in excess of $500,000 is the legal, valid and
binding obligation of the lessee in accordance with the terms of such
lease (except that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought and to the Federal Bankruptcy Code). If the
rents which at present are due and unpaid for more than 30 days under
the leases of real property by the Company or any Related Entity as
lessor remain unpaid, the financial condition or results of operations
of the Company would not be materially adversely affected thereby. The
Company has no reason to believe that the lessee under any lease
(excluding leases for which rent payments due for the remainder of such
lease are less than $500,000) calling for annual lease payments in
excess of $500,000 is not financially capable of performing its
obligations thereunder, except for lessees whose failures to pay would
be covered by reserves established by Wildwood Associates, a Related
Entity, or whose failure to pay would not have a material adverse
effect on the Company and the Related Entities, taken as a whole.
(xiii) Title insurance in favor of the mortgagee or the
Company or the Related Entities is maintained with respect to each
property listed under the heading "Properties" in the Prospectus in an
amount at least equal to the lesser of (a) the cost of acquisition of
such property, (b) the cost of construction of such property (measured
at the time of such construction) or (c) the amount of the mortgage,
except (x) in each case, where the failure to maintain such title
insurance would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and the Related Entities considered as one
enterprise and (y) with respect to the following properties: 4200
Wildwood Parkway, 3301 Windy Ridge Parkway; and 333 North Point Center
East, the Company has retained title insurance in an amount equal to
the land cost relating to such properties pending permanent financing.
(xiv) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not convertible
nor does any of the Company or the Related Entities hold a
participating interest therein other than as set forth or incorporated
by reference in the Prospectus and other than those that do not and
would not adversely affect the business or operations of the Company
and the Related Entities considered as one enterprise.
(xv) Each of the partnership, joint venture and other
agreements to which any of the Company and the Related Entities is a
party, and which relates to real property described in the Prospectus,
has been duly authorized, executed and delivered by the Company or
relevant Related Entity and constitutes the valid agreement thereof,
enforceable in accordance with its terms against the Company or the
relevant Related Entity, as the case may be, except as limited by (a)
the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors or (b) the effect of general
principles of equity, whether enforcement is considered in a proceeding
in equity or at law; and the execution, delivery and performance of any
of such agreements did not, at the time of execution and delivery, and
does not constitute a breach of, or default under, the certificate of
incorporation, partnership agreement or similar agreement or by-laws of
such party or any material contract, lease or other instrument to which
such party is a party or by which it or any of its properties may be
bound or any law, administrative regulation or administrative or court
decree, except for such breaches and defaults that do not have a
material adverse effect on the Company and the Related Entities, taken
as a whole.
(xvi) The Company has filed all Federal, local and foreign
income tax returns which have been required to be filed and has paid
all taxes indicated by said returns and all assessments received by it
to the extent that such taxes have become due and are not being
contested in good faith.
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
or development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and the Related
Entities considered as one enterprise whether or not occurring in the
ordinary course of business, (B) there has not been any material
transaction entered into by the Company or the Related Entities, other
than those in the ordinary course of business, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xviii) Arthur Andersen LLP, who have certified the financial
statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement and Prospectus, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(xix) The conditions for use of registration statements on
Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transaction contemplated herein.
(xx) Each of the Company and the Related Entities has no
knowledge of (a) the unlawful presence of any hazardous substances,
hazardous materials, toxic substances or waste materials (collectively,
"Hazardous Materials") on any of the properties owned by it as of the
date hereof or any properties owned by the Company or any entity
controlled by the Company prior to the date hereof with respect to the
period prior to the sale of such property by the Company or entity
controlled by the Company, or (b) any unlawful spills, releases,
discharges or disposal of Hazardous Materials that have occurred or are
presently occurring on such properties as a result of any construction
on or operation and use of such properties; which presence or
occurrence would have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and the Related Entities considered as one
enterprise. In connection with the construction on or operation and use
of the properties owned by the Company and the Related Entities, the
Company represents that, as of the date of this Agreement, it has no
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials.
(xxi) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(xxii) The sale and transfer of the Shares to the Underwriters
in the manner contemplated by this Agreement will not result in any
Person (as defined in the Company's Articles of Incorporation) (other
than the Prior Owners (as defined in the Company's Articles of
Incorporation)) owning in excess of 3.9% in value of the outstanding
shares of the Common Stock (it being understood that the Company is not
making any representation as to the effect of any resales by the
Underwriters).
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters, or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter severally and not jointly, and each
Underwriter agrees to purchase from the Company, at the price per share set
forth in the Pricing Agreement, the number of Shares set forth in Schedule A
opposite the name of such Underwriter (except as otherwise provided in the
Pricing Agreement).
(1) If the Company has elected to rely upon Rule 430A under
the 1933 Act Regulations, the purchase price per share to be paid by
the several Underwriters for the Shares shall be an amount equal to the
initial public offering price, less an amount per share to be
determined by agreement between the Underwriters and the Company. The
initial public offering price per share of the Shares shall be a fixed
price to be determined by agreement between the Underwriters and the
Company. The initial public offering price and the purchase price, when
so determined, shall be set forth in the Pricing Agreement. In the
event that such prices have not been agreed upon and the Pricing
Agreement has not been executed and delivered by all parties thereto by
the close of business on the fourth business day following the date of
this Agreement, this Agreement shall terminate forthwith, without
liability of any party to any other party, unless otherwise agreed to
by the Company and the Underwriters.
(2) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly to purchase up to an additional
322,500 Shares at the price per share set forth in the Pricing
Agreement. The option hereby granted will expire 30 days after the date
of the Prospectus Supplement and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of
the Initial Shares upon notice by the Underwriters to the Company
setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the time, date and
place of payment and delivery for such Option Shares. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the
Underwriters but shall not be later than five full business days after
the exercise of said option, nor in any event prior to Closing Time, as
hereinafter defined, unless otherwise agreed upon by the Underwriters
and the Company. If the option is exercised as to all or any portion of
the Option Shares, the Option Shares shall be purchased by the
Underwriters, severally, and not jointly, in proportion to their
respective Initial Share underwriting obligations as set forth in
Schedule A.
(b) Payment of the purchase price for and delivery of
certificates for the Initial Shares shall be made at the office of King &
Spalding, or at such other place as shall be agreed upon by the Underwriters and
the Company, at 10:00 A.M. on December 15, 1997 (the "Closing Time") (or, if the
Company has elected to rely upon Rule 430A, the fifth business day after
execution of the Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriters and
the Company. In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, payment of the purchase price for and the
delivery of such Option Shares shall be made at the above-mentioned office of
King & Spalding, or at such other place as shall be mutually agreed upon by the
Underwriters and the Company, on each Date of Delivery as specified in the
notice from the Underwriters to the Company. Payment shall be made by wire
transfer or in same day funds payable to the order of the Company against
delivery to the respective accounts of the Underwriters of certificates for the
Shares to be purchased by them. The certificates for the Initial Shares and the
Option Shares shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two business days before Closing
Time or the Date of Delivery, as the case may be. It is understood that each
Underwriter has authorized Morgan Stanley, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Shares which it
has agreed to purchase. Morgan Stanley or Merrill Lynch may (but shall not be
obligated to) make payment of the purchase price for the Shares to be purchased
by any Underwriter whose check has not been received by Closing Time, but any
such payment shall not relieve such Underwriter from its obligations hereunder.
The certificates for the Initial Shares and the Option Shares will be made
available for examination and packaging by the Underwriters not later than 10:00
A.M. on the last business day prior to Closing Time or the Date of Delivery, as
the case may be.
Section 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) The Company will notify the Representatives immediately,
and confirm the notice in writing, (i) of the receipt of any comments from the
Commission, (ii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) The Company will give the Underwriters notice of its
intention to file or prepare any post-effective amendment to the Registration
Statement or any amendment or supplement to the Prospectus, will furnish the
Underwriters with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus prior to
consulting with the Underwriters and counsel for the Underwriters.
(c) The Company will deliver to the Underwriters a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference into the Prospectus pursuant to Item 12
of Form S-3 under the 1933 Act).
(d) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934
Act Regulations.
(e) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
the Company will either (i) forthwith prepare and furnish to the Underwriters a
reasonable number of copies of an amendment of or supplement to the Prospectus
or (ii) make an appropriate filing pursuant to Section 13, 14 or 15 of the 1934
Act, in form and substance satisfactory to counsel for the Underwriters, which
will amend or supplement the Prospectus so that it will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light the circumstances existing at the
tine it is delivered to a purchaser, not misleading.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Shares for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as the Underwriters may designate. In each
jurisdiction in which the Shares have been so qualified the Company will file
such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement.
(g) The Company will use the net proceeds received by it
from the sale of the Shares in the manner specified in the Prospectus (as
supplemented) under the caption "Use of Proceeds."
(h) The Company will not, directly or indirectly, offer, sell
or otherwise dispose of any Common Stock or any securities of the Company which
are substantially similar to the Common stock or any other securities
convertible into or exchangeable for, or any rights to purchase or acquire,
Common Stock or any such securities substantially similar to the Common Stock,
other than pursuant to (i) outstanding warrants or options, (ii) existing
employee stock option or employee stock purchase plans, (iii) existing director
stock plans or (iv) the Company's Dividend Reinvestment Plan, prior to the
expiration of 90 days from the date of the Prospectus without the prior written
consent of the Underwriters, which consent shall not be unreasonably withheld;
and the Company will cause each executive officer and director of the Company to
agree that each of them will not, directly or indirectly, offer, sell or
otherwise dispose of any Common Stock or any securities of the Company which are
substantially similar to the Common Stock or securities convertible into or
exchangeable for, or any rights to purchase or acquire, Common Stock or any such
securities substantially similar to the Common Stock, other than bona fide gifts
to donees who agree to be bound by such restriction, prior to the expiration of
90 days from the date of the Prospectus without the prior written consent of the
Underwriters, which consent shall not be unreasonably withheld.
(i) For its taxable year ending December 31, 1997, the Company
(i) will continue to elect to qualify as a "real estate investment trust" under
the Internal Revenue Code of 1986, as amended, and (ii) will use its best
efforts to continue to meet the requirements to qualify as a "real estate
investment trust."
Section 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the cost of printing, or
reproducing, and distributing to the Underwriters copies of this Agreement and
the Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, (iv) the fees and disbursements
of counsel for the Company, referred to in Section 5(b) hereof, (v) the fees and
disbursements of the Company's accountants, (vi) the qualification of the Shares
under securities laws and real estate syndication laws in accordance with the
provisions of Section 3(f), including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey, (vii) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, of the Prospectus and any amendments or supplements
thereto and (viii) the cost of printing or reproducing and delivering to the
Underwriters copies of the Blue Sky Survey, (x) the fees and expenses incurred
in connection with the listing of the Shares on the New York Stock Exchange.
If this Agreement is terminated by Morgan Stanley on behalf of
the Underwriters in accordance with the provisions of Section 5, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) The Registration Statement remains effective; and no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission. The Prospectus Supplement shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within
the prescribed time period, and prior to Closing Time the Company shall have
provided evidence satisfactory to the Underwriters of such timely filing.
(b) At Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of Closing Time,
of King and Spalding, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company was duly organized as a
corporation and is existing and in good standing
under the laws of the State of Georgia, with
corporate power to own its properties and conduct its
business as described in the Prospectus; each of CREC
and CNM was duly organized as a corporation and is
existing and in good standing as a corporation under
the laws of the State of Georgia, with corporate
power to own its respective properties and conduct
its respective businesses as described in the
Prospectus.
(ii) The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to the
Company's Dividend Reinvestment Plan or employee or
director plans referred to in the Registration
Statement) and such shares of capital stock are duly
authorized, validly issued, fully paid and
non-assessable; and the Common Stock conforms to the
description thereof contained in the Prospectus.
(iii) Each of the Company and the corporate
and partnership Related Entities has been duly
qualified as a foreign corporation or foreign
partnership, as the case may be, for the transaction
of business and is in good standing under the laws of
each other jurisdiction in which it owns, leases or
operates properties or conducts any business, so as
to require such qualification, except where the
failure to so qualify would not have a material
adverse effect on the Company and the Related
Entities considered as one enterprise.
(iv) All of the issued shares of capital
stock of CREC have been duly and validly authorized
and issued, are fully paid and non-assessable, and
(except for the 100 shares of voting common stock of
CREC owned by Thomas G. Cousins are owned directly or
indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, except as
set forth in the Prospectus; to the best knowledge of
such counsel, all of the equity interests of each
partnership and limited liability company Related
Entity that owns properties described in the
Prospectus are owned directly or indirectly by the
Company, CREC or CNM, free and clear of all liens
encumbrances, equities or claims except as set forth
in the Prospectus.
(v) All of the issued shares of capital
stock of CNM have been duly and validly authorized
and issued, are fully paid and non-assessable and are
owned directly by CREC, free and clear of all liens,
encumbrances, equities or claims.
(vi) To the best knowledge of such counsel
and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to
which the Company or any of the Related Entities is a
party or to which the property of the Company or any
of the Related Entities is the subject which are
required to be described in the Prospectus and, to
the best of such counsel's knowledge, no such
proceedings are threatened by governmental
authorities or threatened by others.
(vii) This Agreement and the Pricing
Agreement have been duly authorized, executed and
delivered by the Company.
(viii) The Shares have been duly and validly
authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in the
Pricing Agreement, will be validly issued and fully
paid and non-assessable.
(ix) The issuance of the Shares is not
subject to preemptive or other similar rights arising
by operation of law or, to the best of their
knowledge, otherwise.
(x) No consent, approval, authorization, or
other action by, or filing with, any governmental
authority of the United States or the State of
Georgia is required for the issuance and sale of the
Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except
the registration under the 1933 Act of the Shares,
and such consents, approvals, authorizations,
registrations or qualifications as may be required
under Georgia securities or Blue Sky laws in
connection with the purchase and distribution of the
shares by the Underwriters.
(xi) The Registration Statement, the
Prospectus and each amendment or supplement thereto
and any documents incorporated by reference therein
comply as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act, as
applicable, and the applicable rules and regulations
thereunder (except that such counsel need express no
opinion as to the financial statements and related
schedules and other financial data included or
incorporated by reference therein).
(xii) The statements in the Prospectus
Supplement under the captions "Description of Common
Stock" and "Federal Income Tax Considerations" in
each case insofar as such statements constitute
summaries of the legal matters or documents referred
to therein, fairly present the information called for
with respect to such legal matters or documents and
fairly summarize the matters referred to thereof.
(xiii) The company is not an "investment
company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment
Company Act of 1940, as amended.
(xiv) To the best of such counsel's
knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to
in the Registration Statement or to be filed as
exhibits thereto other than those described or
referred to therein or filed as exhibits thereto.
(xv) Each of the partnership, joint venture
or other agreements to which the Company or any of
the Related Entities is a party, and which relates to
the real property described in the Prospectus, has
been duly authorized, executed and delivered by the
Company or relevant Related Entity, as the case may
be, and constitutes the valid agreement thereof,
enforceable in accordance with its terms against the
Company or the relevant Related Entity, as the case
may be, except as limited by bankruptcy and general
equitable principles and the execution, delivery and
performance of any of such agreements did not, at the
time of execution and delivery, and does not
constitute a breach of, or default under, the
certificate of incorporation, partnership agreement
or similar document or by-laws of such party or any
material contract, lease or other instrument known to
such counsel to which such party is a party or by
which it or any of its properties may be bound or any
law, administrative regulation or administrative or
court decree.
(xvi) The conditions for use of a
Registration Statement on Form S-3 have been
satisfied; the Registration Statement has become
effective under the 1933 Act and, to the best of the
knowledge of such counsel, no stop order proceedings
with respect thereto have been instituted or are
pending or threatened under the 1933 Act.
(xvii) The sale and transfer of the Shares
to the Underwriters in the manner contemplated by
this Agreement will not result in any Person (as
defined in the Company's Articles of Incorporation)
(other than the Prior Owners (as defined in the
Company's Articles of Incorporation)) owning (as
defined in the Company's Articles of Incorporation)
in excess of 3.9% in value of the outstanding shares
of Common Stock; provided, however, that no opinion
is given as to the effect of any resales by the
Underwriters.
(xviii) The Shares have been duly authorized
for listing by the New York Stock Exchange on the
date of the Pricing Agreement.
In addition, King & Spalding shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
independent public accountants of the Company and the
Underwriters at which the contents of the Registration
Statement and Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus, on the
basis of the foregoing nothing has come to the attention of
such counsel that causes them to believe that the Registration
Statement, as of the time it became effective under the 1933
Act, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus at the Representation Date (unless the
term "Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use in
connection with the offering of the Shares which differs from
the Prospectus on file at the Commission at the Representation
Date, in which case at the time it is first provided to the
Underwriters for such use) or at Closing Time contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (except that such counsel need express no view as
to financial statements, schedules and other financial and
statistical data included or incorporated by reference
therein). With respect to such statement, King & Spalding may
state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(2) The favorable opinion, dated as of Closing Time,
of Shearman & Sterling, counsel for the Underwriters, with
respect to the matters set forth in (vii), (xi) and (xvi)
(after the first clause) of subsection (b)(1) of this Section.
In rendering their opinion, Shearman & Sterling may rely as to
matters of Georgia law upon the opinion of King & Spalding. In
addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come
to the attention of such counsel which leads them to believe
that the Registration Statement, as of the time it became
effective under the 1933 Act, contained an untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the Shares
which differs from the Prospectus on file at the Commission at
the Representation Date, in which case at the time it is first
provided to the Underwriters for such use) or at Closing Time
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (except that such counsel need
express no view as to financial statements, schedules and
other financial and statistical information included or
incorporated by reference therein). With respect to such
statement, Shearman & Sterling may state that their belief is
based upon the procedures set forth therein, but is without
independent check and verification.
(3) The favorable opinion of Troutman Sanders,
counsel for the Company, dated as of Closing Time, to the
effect that each of CSC Associates, LP, Ten Peachtree Place
Associates, Wildwood Associates, Perimeter Associates L.P. and
Cousins Loret Venture, L.L.C. is validly existing as a general
or limited partnership or LLC (as the case may be) under the
laws of the state of its organization and has the partnership
or LLC, as applicable, power to own, lease and operate its
properties and conduct its business as described in the
Prospectus.
(4) The favorable opinion of Wyche, Burgess, Freeman
& Parham, P.A., special counsel to King & Spalding on behalf
of the Company, dated as of Closing Time, to the effect that:
(i) The Company's Joint Venture Agreement of
Haywood Mall Associates is currently in full force
and effect and is valid and enforceable under South
Carolina law, subject to applicable laws affecting
creditors rights, bankruptcy laws, and general
principles of equity.
(ii) The Company is duly qualified and
authorized to do business and is in good standing as
a foreign corporation in the State of South Carolina.
(5) The favorable opinion of the Senior Vice
President of the Company, dated as of the Closing Time, to the
effect that:
The compliance by the Company with
all of the provisions of this Agreement and the
consummation of the transactions herein contemplated
(assuming that the distribution and resale of Company
Common Stock is in compliance with the provisions of
Article II of the Company's Restated Articles of
Incorporation) will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to me to which
the Company or any of the Related Entities is a party
or by which the Company or any of the Related
Entities is bound or to which any of the property or
assets of the Company or any of the Related Entities
is subject (with the Underwriter's permission such
counsel may assume that the term "material indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument" includes only such documents
listed in a schedule to the opinion), nor will such
action result in any violation of the provisions of
the articles of incorporation, partnership agreement
or similar document or by-laws of the Company or any
of the Related Entities (provided that no opinion is
given regarding the Ownership Limit, as defined in
the Prospectus, with respect to the effect of any
resales by the Underwriters) or any statue or any
order, rule or regulation known to me of any court or
governmental agency or body having jurisdiction over
the Company or any of the Related Entities or any of
their properties.
In rendering the opinions given in (b)(1), (3) and (5),
counsel for the Company are entitled to rely upon opinions of local
counsel and in respect of matters of fact, upon certificates of
officers of the Company, provided that such counsel shall state that
they believe that both the Underwriters and they are justified in
relying upon such opinions and certificates.
(c) At Closing Time (i) the Registration Statement and the
Prospectus shall contain all statements which are required to be stated therein
in accordance with the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, and neither the Registration Statement nor the Prospectus shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and no action, suit or proceeding at law or in equity shall be
pending or to the knowledge of the Company threatened against the Company which
would be required to be set forth in the Prospectus other than as set forth
therein and (ii) no proceedings shall be pending or, to the knowledge of the
Company, threatened against the Company before or by any Federal, state or other
commission, board or administrative agency wherein an unfavorable decision,
ruling or finding would materially and adversely affect the business, property,
financial condition or income of the Company other than as set forth in the
Prospectus; and the Underwriters shall have received, at Closing Time, a
certificate of the President and Chief Operating Officer and the Senior Vice
President and Chief Financial Officer of the Company, dated as of Closing Time,
evidencing compliance with the provisions of this subsection (c), stating that
the representations and warranties set forth in Section l(a) hereof are accurate
as though expressly made at and as of Closing Time and that the Company intends
to remain qualified as a real estate investment trust through December 31, 1997.
As used in this Section 5(c), the term "Prospectus" means the Prospectus in the
form first used to confirm sales of the Shares.
(d) At the Closing Time, the Underwriters shall have received
from Arthur Andersen LLP a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that (i) they are independent
public accountants as required by the 1933 Act and the applicable published
rules and regulations thereunder with respect to the Company; (ii) it is their
opinion that the financial statements and supporting schedules of the Company
incorporated by reference in the Registration Statement and covered by their
opinion therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the related
published rules and regulations thereunder; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available interim financial statements of the Company, a reading of the minute
books of the Company since December 31, 1996, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, and on the basis of
such limited review and procedures nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements of the Company
incorporated by reference in the Registration Statement do not comply
as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1934 Act and the related published
rules and regulations thereunder or are not stated on a basis
substantially consistent with that of the audited financial statements
of the Company incorporated by reference in the Registration Statement;
(B) at a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock of the
Company, any decreases in net investment in properties, investment in
joint ventures, total assets or shareholders' investment or any
increase in notes payable of the Company, as compared with the amounts
shown in the latest balance sheet incorporated by reference in the
Registration Statement; or
(C) during the period from the date of the latest balance
sheet incorporated by reference in the Registration Statement, to a
specified date not more than five days prior to the date of such
letter, there were any decreases, as compared with the corresponding
period in the preceding year, in rental revenues, in development and
construction fees, in leasing and other fees, in income from joint
ventures, in total revenues or in the total or per share amounts of
income before gain on sale of properties or of net income; except in
all cases for changes, increases or decreases which the Registration
Statement discloses have occurred or may occur; and (iv) in
addition to the limited procedures referred to in clause iii) above,
they have carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are derived from the general accounting records of
the Company, which are included or incorporated by reference in the
Registration Statement and which are specified by the Underwriters,
and have compared such amounts, percentages and financial
information with the accounting records of the Company and have found
them to be in agreement.
(e) At the Closing Time, the Underwriters shall have received
a letter from Arthur Andersen LLP, dated December 15, 1997, addressed to the
Company and you, in form and substance satisfactory to you with respect to the
Company's qualification as a real estate investment trust for 1996.
(f) At Closing Time counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Shares as herein contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Shares as herein
contemplated shall be satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(g) In the event the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Shares, the representations and warranties of the Company contained herein and
the statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and the Underwriters shall have
received:
(1) A certificate of the President and Chief Operating Officer
and the Senior Vice President and Chief Financial Officer of the
Company, dated such Date of Delivery, confirming that their certificate
delivered at Closing Time pursuant to Section 5(c) hereof remains true
as of such Date of Delivery.
(2) The favorable opinion of King & Spalding, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Shares and otherwise to the same effect as the opinion required by
Section 5(b)(1) hereof.
(3) The favorable opinion of Troutman Sanders, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, and otherwise to the same
effect as the opinion required by Section 5(b)(3) hereof.
(4) The favorable opinion of Shearman & Sterling, counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Shares and otherwise to the same effect as the opinion required by
Section 5(b)(2) hereof.
(5) A letter from Arthur Andersen LLP in form and substance
satisfactory to the Underwriters, dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters pursuant to Section 5(f) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
5(i)(6) shall be a date not more than three days prior to such Date of
Delivery.
(6) The favorable opinion of the Senior Vice President of the
Company, dated such Date of Delivery, and otherwise to the same effect
as the opinion required by Section 5(b)(5) hereof.
(i) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Time there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and the
Related Entities, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto (but including the
Prospectus Supplement) subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4.
Section 6. Indemnification & Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 3(d) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to information relating to such Underwriter furnished in writing
by or on behalf of such Underwriter expressly for use in the Registration
Statement, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this Section
6, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (i) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Underwriters and all
persons, if any, who control any Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act and (ii) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either such
Section. In the case of any such separate firm for the Underwriters and such
control persons of any of the Underwriters, such firm shall be designated in
writing by Morgan Stanley. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause 6(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 6(d)(i) above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 6 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6 and the representations, warranties and agreements contained in
this Agreement and the Pricing Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Shares.
Section 7. Termination.
(a) This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 7(a)(i) through 7(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4, and provided further that Section 6 hereof
shall survive such termination.
Section 8. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036, attention of General Counsel; and notices to
the Company shall be directed to it at 2500 Windy Ridge Parkway, Suite 1600,
Atlanta, Georgia 30339, attention of the Corporate Secretary.
Section 9. Parties. This Agreement and the Pricing Agreement
shall each inure to the benefit of and be binding upon the Underwriters, the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Section 6 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect to this Agreement or the Pricing Agreement or any provision
herein or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 10. Governing Law and Time; Miscellaneous. This
Agreement and the Pricing Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said State. Specified times of day refer to New York City
time.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof whereupon this
instrument along with all counterparts will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
COUSINS PROPERTIES INCORPORATED
By /s/ Daniel M. DuPree
-----------------------------------
Daniel M. DuPree
CONFIRMED AND ACCEPTED, as of the date first above written:
By: MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: Morgan Stanley & Co. Incorporated
By: /s/ Robert N. Weaver
----------------------------------
Robert N. Weaver
<PAGE>
SCHEDULE A
Number
Name of Underwriter of Shares
------------------- ---------
Morgan Stanley & Co. Incorporated......................... 1,075,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated........ 1,075,000
---------
Total..................................................... 2,150,000
=========
<PAGE>
Exhibit A
2,150,000 Shares
COUSINS PROPERTIES INCORPORATED
(a Georgia corporation)
Common Stock
($1.00 Par Value)
PRICING AGREEMENT
December 10, 1997
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
December 10, 1997 (the "Underwriting Agreement"), relating to the purchase by
Morgan Stanley & Co. Incorporated ("Morgan Stanley") and Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") (Morgan Stanley and Merrill Lynch,
collectively, the "Underwriters") of the above shares of common stock (the
"Shares") of Cousins Properties Incorporated (the "Company").
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with each Underwriter as follows:
1. The initial public offering price per share for the Shares,
determined as provided in said Section 2, shall be $31.5625.
2. The purchase price per share for the Shares to be paid by
the several Underwriters shall be $29.9055, being an amount equal to
the initial public offering price set forth above less $1.6570 per
share.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
COUSINS PROPERTIES INCORPORATED
By: /s/ Daniel M. DuPree
---------------------------------
Daniel M. DuPree
CONFIRMED AND ACCEPTED, as of the date first above written:
By: MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: Morgan Stanley & Co. Incorporated
By: /s/ Robert N. Weaver
------------------------------------
Robert N. Weaver
