<PAGE>
As filed with the Securities and Exchange Commission on January 26, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
--------------------
MERRY LAND & INVESTMENT COMPANY, INC.
(Exact Name of Registrant as Specified in Its Charter)
Georgia 58-0961876
(State of Incorporation) (I.R.S. Employer Identification Number)
P.O. Box 1417
624 Ellis Street, Augusta, Georgia 30903
(706) 722-6756
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
W. Hale Barrett Copy to:
Secretary R.W. Smith, Jr., Esquire
Hull, Towill, Norman & Barrett, P.C. Piper & Marbury
7th Floor, Trust Company Bank Building 36 South Charles Street
P. O. Box 1564 Baltimore, Maryland 21201-3010
Augusta, Georgia 30903-1564 (410) 539-2530
(706)722-4481
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
--------------------
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective as
determined by market conditions and other factors.
--------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C>
===========================================================================
Proposed Proposed
Maximum Maximum
Title of Aggregate Amount Offering Aggregate Amount of
securities to be Price Per Offering Registration
to be registered<F1> registered<F2> Unit Price<F2><F3> Fee<F4>
- ---------------------------------------------------------------------------
Debt Securities,
Preferred Stock,
Depositary Shares, $400,000,000<F6> <F7> $400,000,000 $137,932
Common Stock and
Common Stock
Warrants<F5>
===========================================================================
<FN>
<F1> This Registration Statement also covers delayed delivery contracts
that may be issued by the Registrant under which the party purchasing such
contracts may be required to purchase Debt Securities, Preferred Stock,
Depositary Shares, Common Stock or Common Stock Warrants (collectively, the
"Offered Securities"). Such contracts may be issued together with the
specific Offered Securities to which they relate. In addition, Offered
Securities registered hereunder may be sold either separately or as units
comprising more than one type of Offered Security registered hereunder.
<F2> In U.S. dollars or the equivalent thereof in one or more foreign
currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
<F3> Estimated solely for purposes of calculating the registration fee. No
separate consideration will be received for Common Stock or Preferred Stock
as may from time to time be issued upon conversion or exchange of Debt
Securities, Preferred Stock or Depositary Shares.
<F4> The registration fee has been calculated in accordance with Rule
457(o) under the Securities Act of 1933, as amended.
<F5> Also includes such indeterminate amounts of Debt Securities and
indeterminate number of shares of Common Stock and Preferred Stock as may
be issued upon exercise of Common Stock Warrants or conversion of or
exchange for any other Debt Securities or Preferred Stock that provide for
conversion or exchange into other securities.
<F6> Such amount represents the principal amount of the Debt Securities
issued at their principal amount, the issue price rather than the principal
amount of any Debt Securities issued at an original issue discount, the
liquidation preference of any Preferred Stock, the amount computed pursuant
to Rule 457(c) for any Common Stock, the issue price of any Common Stock
Warrants and the exercise price for any Common Stock issuable upon the
exercise of Common Stock Warrants.
<F7> Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
</TABLE>
===========================================================================
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
===========================================================================
<PAGE>
Information herein is subject to completion or amendment. A registration
statement relating to these securities has been filed with the Securities
and Exchange Commission. These securities may not be sold nor may offers
to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of any offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
PROSPECTUS Subject to Completion
$400,000,000 January 26, 1995
Merry Land & Investment Company, Inc.
Debt Securities, Preferred Stock, Depositary Shares,
Common Stock and Common Stock Warrants
--------------------
Merry Land & Investment Company, Inc. ("Merry Land" or the "Company")
may from time to time offer in one or more series (i) its unsecured senior
or subordinated debt securities (the "Debt Securities"), (ii) shares or
fractional shares of its preferred stock, without par value (the "Preferred
Stock"), (iii) shares of Preferred Stock represented by depositary shares
(the "Depositary Shares"), (iv) shares of its common stock, without par
value (the "Common Stock"), or (v) warrants to purchase Common Stock (the
"Common Stock Warrants"), with an aggregate public offering price of up to
$400,000,000 on terms to be determined at the time of offering. The Debt
Securities, Preferred Stock, Depositary Shares, Common Stock and Common
Stock Warrants (collectively, the "Offered Securities") may be offered,
separately or together, in separate series in amounts, at prices and on
terms to be set forth in a supplement to this Prospectus (each, a
"Prospectus Supplement").
The Debt Securities will be direct unsecured obligations of the Company
and may be either senior Debt Securities ("Senior Securities") or
subordinated Debt Securities ("Subordinated Securities"). The Senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of the Company. The Subordinated Securities will be
subordinated to all existing and future Senior Debt of the Company, as
defined. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement and will include, where applicable: (i) in the case
of Debt Securities, the specific title, aggregate principal amount,
currency, form (which may be registered or bearer, or certificated or
global), authorized denominations, maturity, rate (or manner of calculation
thereof) and time of payment of interest, terms for redemption at the
option of the Company or repayment at the option of the Holder, terms for
sinking fund payments, terms for conversion into Preferred Stock, Common
Stock or other Company securities, additional covenants, and any initial
public offering price; (ii) in the case of Preferred Stock, the specific
title and stated value, any dividend, liquidation, redemption, conversion,
voting and other rights, and any initial public offering price; (iii) in
the case of Depositary Shares, the fractional share of Preferred Stock
represented by each such Depositary Share; (iv) in the case of Common
Stock, any initial public offering price; and (v) in the case of Common
Stock Warrants, the duration, offering price, exercise price and
detachability. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Offered
Securities, in each case as may be appropriate to preserve the status of
the Company as a real estate investment trust for federal income tax
purposes.
The applicable Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax
considerations relating to, and any listing on a securities exchange of,
the Offered Securities covered by such Prospectus Supplement.
The Offered Securities may be offered directly by the Company, through
agents designated from time to time by the Company, or to or through
underwriters or dealers. If any agents or underwriters are involved in the
sale of any of the Offered Securities, their names, and any applicable
purchase price, fee, commission or discount arrangement between or among
them, will be set forth, or will be calculable from the information set
forth, in the applicable Prospectus Supplement. See "Plan of
Distribution." No Offered Securities may be sold without delivery of the
applicable Prospectus Supplement describing the Offered Securities and the
method and terms of the offering.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is ______________, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith
files reports, proxy statements and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and
other information filed by the Company can be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and its Regional Offices located at:
75 Park Place, New York, New York 10017; and 500 West Madison Street,
Chicago, Illinois 60661; and can also be inspected and copied at the
offices of the New York Stock Exchange at 20 Broad Street, New York, New
York 10005. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company has filed a registration statement with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"), with respect
to the Offered Securities (the "Registration Statement"). As permitted by
the rules and regulations of the Commission, this Prospectus does not
contain all of the information set forth in the Registration Statement. For
further information, reference is made to such Registration Statement and
to the exhibits, which may be inspected and copied at or obtained from the
Commission's public reference facilities, 450 Fifth Street, N.W.,
Washington, D.C. 20549 upon payment of the prescribed fees. Each statement
made in this Prospectus with respect to a document that is filed as an
exhibit to the Registration Statement is qualified by reference to such
exhibit for a complete statement of the terms and conditions thereof.
There are incorporated herein by reference the following documents
heretofore filed by the Company with the Commission:
(i) the Company's annual report on Form 10-K for the year ended
December 31, 1993;
(ii) the Company's current reports on Form 8-K/A filed on March 1, 1994
and March 2, 1994, amending the Company's current reports on Form
8-K filed on November 19, 1993 and December 30, 1993, respectively;
(iii) the Company's current reports on Form 8-K filed June 6, 1994, June
16, 1994, June 29, 1994, August 15, 1994 (as amended on Form 8-K/A
filed on September 27, 1994), November 3, 1994 (as amended on Form
8-K/A filed on January 24, 1995, which contains a description of
the Company's $2.205 Series B Cumulative Convertible Preferred
Stock) and December 2, 1994;
(iv) the Company's quarterly reports on Form 10-Q for the quarters ended
March 31, 1994, June 30, 1994 and September 30, 1994;
(v) the description of the Company's Common Stock and $1.75 Series A
Cumulative Convertible Preferred Stock contained in the Company's
registration statements on Form 8-A filed under the Exchange Act,
including any amendments or reports filed for the purpose of
updating such descriptions; and
(vi) the Company's definitive proxy statement dated March 22, 1994
relating to the annual meeting of shareholders held on April 18,
1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the date of
filing such documents.
Any statement contained herein or in a document incorporated herein by
reference or deemed to be incorporated herein by reference shall be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, in any accompanying Prospectus Supplement
relating to a specific offering of Offered Securities or in any other
amendment or supplement hereto or document subsequently incorporated herein
by reference, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
Copies of all documents incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates), will be provided without charge to each person who receives
a copy of this Prospectus on the written or oral request of such person
directed to W. Hale Barrett, the Company's Secretary, 624 Ellis Street,
Augusta, Georgia 30901, telephone number (706) 722-6756.
<PAGE>
THE COMPANY
Merry Land is one of the largest owners and operators of upscale garden
apartments in the Southern region of the United States. Merry Land became
an independent publicly owned company in 1981 and has been managing
apartment communities since 1982. It is a self-administered and
self-managed real estate investment trust ("REIT") headquartered in
Augusta, Georgia. At December 31, 1994, the Company owned 73 apartment
communities containing 18,852 units and having an aggregate cost of $796.4
million. At that date, the communities had an average occupancy of 96% and
an average monthly rental rate of $593. The Company's apartment
communities are located in Florida, Georgia, Maryland, North Carolina,
Ohio, South Carolina, Tennessee and Virginia.
Merry Land is a Georgia corporation. The Company's principal office is
located at 624 Ellis Street, Augusta, Georgia 30901 and its telephone
number is (706) 722-6756.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Offered Securities will be used for
general corporate purposes, which may include repayment of indebtedness,
making improvements to apartment properties, the acquisition of additional
apartment properties and the development and construction of new apartment
properties.
CERTAIN RATIOS
The following table sets forth the Company's ratio of earnings to fixed
charges and ratio of earnings to combined fixed charges and Preferred Stock
dividends for the periods shown.
<TABLE>
<CAPTION>
Year Ended December 31,
1990 1991 1992 1993 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges 1.26x 1.69x 2.98x 5.58x 4.44x
Ratio of earnings to
combined fixed charges and
Preferred Stock dividends 1.26x 1.69x 2.98x 3.29x 2.56x
</TABLE>
The ratio of earnings to fixed charges was computed by dividing earnings
by fixed charges. The ratio of earnings to combined fixed charges and
Preferred Stock dividends was computed by dividing earnings by fixed
charges and Preferred Stock dividends. For the purpose of computing these
ratios, earnings consist of income before taxes plus fixed charges. Fixed
charges consist of interest on borrowed funds and amortization of debt
discount and expense. Preferred Stock dividends consist of those dividends
paid on the Company's $1.75 Series A Cumulative Convertible Preferred Stock
(the "Series A Preferred Stock") and $2.205 Series B Cumulative Convertible
Preferred Stock (the "Series B Preferred Stock") during the respective
periods set forth in the preceding table.
DESCRIPTION OF DEBT SECURITIES
General
- -------
The Senior Securities are to be issued under an indenture dated as of
_____________, 1995, as supplemented from time to time (the "Senior
Indenture"), between the Company and First Union National Bank of Georgia
(the "Senior Indenture Trustee"), and the Subordinated Securities are to be
issued under an indenture dated as of _______________, 1995, as
supplemented from time to time (the "Subordinated Indenture"), between the
Company and First Union National Bank of Georgia (the "Subordinated
Indenture Trustee"). The term "Trustee," as used herein, shall refer to
the Senior Indenture Trustee or the Subordinated Indenture Trustee, as
appropriate. The forms of the Senior Indenture and the Subordinated
Indenture (being sometimes referred to herein collectively as the
"Indentures" and individually as an "Indenture") are filed as exhibits to
the Registration Statement and are available for inspection at the
corporate trust office of the Senior Indenture Trustee in Atlanta, Georgia
and the corporate trust office of the Subordinated Indenture Trustee in
Atlanta, Georgia or as described under "Available Information." The
Indentures are subject to and governed by the Trust Indenture Act of 1939,
as amended (the "TIA"). The statements made herein relating to the
Indentures and the Debt Securities are summaries of certain provisions
thereof, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the
Indentures and the Debt Securities. All section references appearing
herein are to sections of the Indentures, and capitalized terms used but
not defined herein have the respective meanings set forth in the Indentures
and the Debt Securities.
Terms
- -----
The Debt Securities will be direct, unsecured obligations of the
Company. The indebtedness represented by the Senior Securities will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company. The indebtedness represented by the Subordinated Securities will
be subordinated in right of payment to the prior payment in full of the
Senior Debt of the Company, as described under "Subordination".
Each Indenture provides that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case
as established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company or as established in
one or more indentures supplemental to such Indenture. Debt Securities may
be issued with terms different from those of Debt Securities previously
issued; all Debt Securities of one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders of the Debt Securities of such series, for issuances
of additional Debt Securities of such series (Section 301 of each
Indenture).
Each Indenture provides that there may be more than one Trustee
thereunder, each with respect to one or more series of Debt Securities.
Any Trustee under either Indenture may resign or be removed with respect to
one or more series of Debt Securities, and a successor Trustee may be
appointed to act with respect to such series (Section 608 of each
Indenture). In the event that two or more persons are acting as Trustee
with respect to different series of Debt Securities, each such Trustee
shall be a Trustee of a trust under the applicable Indenture separate and
apart from the trust administered by any other Trustee (Sections 101 and
609 of each Indenture), and, except as otherwise indicated herein, any
action described herein to be taken by the Trustee may be taken by each
such Trustee with respect to, and only with respect to, the one or more
series of Debt Securities for which it is Trustee under the applicable
Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
1) the title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated Securities;
2) the aggregate principal amount of such Debt Securities and any
limit on such principal amount;
3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount payable upon
declaration of acceleration of the maturity thereof, or (if
applicable) the portion of the principal amount of such Debt
Securities that is convertible into Capital Stock (as defined in
the Indentures), or the method by which any such portion will be
determined;
4) if convertible, any applicable limitations on the ownership or
transferability of the Capital Stock into which such Debt
Securities are convertible;
5) the date or dates, or the method by which such date or dates will
be determined, on which the principal of such Debt Securities
will be payable and the amount of principal payable thereon;
6) the rate or rates (which may be fixed or variable) at which such
Debt Securities will bear interest, if any, or the method by
which such rate or rates will be determined, the date or dates
from which such interest will accrue or the method by which such
date or dates will be determined, the Interest Payment Dates on
which any such interest will be payable and the Regular Record
Dates, if any, for such Interest payable on any Registered
Security on any Interest Payment Dates, or the method by which
such Dates will be determined, and the basis upon which interest
will be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
7) the place or places where the principal of (and premium or Make-
Whole Amount (as defined), if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, such Debt
Securities will be payable, where such Debt Securities may be
surrendered for registration of transfer, conversion or exchange
and where notices or demands to or upon the Company in respect of
such Debt Securities and the applicable Indenture may be served;
8) the period or periods within which, the price or prices
(including premium or Make-Whole Amount, if any) at which, the
currency or currencies, currency unit or units or composite
currency or currencies in which and other terms and conditions
upon which such Debt Securities may be redeemed in whole or in
part, at the option of the Company, if the Company is to have the
option;
9) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency
unit or units or composite currency or currencies in which, and
other terms and conditions upon which such Debt Securities will
be redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
10) whether such Debt Securities will be in registered or bearer form
and terms and conditions relating thereto, and, if other than
$1,000 and any integral multiple thereof, the denominations in
which any registered Debt Securities will be issuable and, if
other than $5,000, the denomination or denominations in which any
bearer Debt Securities will be issuable;
11) if other than United States dollars, the currency or currencies
in which such Debt Securities will be denominated and payable,
which may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies;
12) whether the amount of payment of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on such Debt
Securities may be determined with reference to an index, formula
or other method (which index, formula or method may be based,
without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts will be
determined;
13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on such Debt
Securities are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies, currency unit or
units or composite currency or currencies other than that in
which such Debt Securities are denominated or stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time
and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the
currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are
denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are to be so payable;
14) provisions, if any, granting special rights to the Holders of
such Debt Securities upon the occurrence of such events as may be
specified;
15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to such Debt
Securities, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth
in the applicable Indenture;
16) whether such Debt Securities will be issued in certificated or
book-entry form and terms and conditions related thereto;
17) the applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fourteen of the applicable
Indenture;
18) whether and under what circumstances the Company will pay
Additional Amounts as contemplated in the Indenture on such Debt
Securities to any Holder who is not a United States person in
respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Debt
Securities rather than pay such Additional Amounts (and the terms
of any such option);
19) the obligation, if any, of the Company to permit the conversion
of the Debt Securities of such series into shares of Capital
Stock of the Company and the terms and conditions upon which such
conversion shall be effected; and
20) any other terms of such Debt Securities, which terms shall not be
inconsistent with the provisions of the applicable Indenture
(Section 301 of each Indenture).
The Debt Securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the
maturity thereof ("Original Issue Discount Securities") (Section 502 of
each Indenture). Any special United States federal income tax, accounting
and other considerations applicable to Original Issue Discount Securities
will be described in the applicable Prospectus Supplement.
Denominations, Interest, Registration and Transfer
- --------------------------------------------------
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities of any series issued in registered form will be issuable in
denominations of $1,000 and integral multiples thereof. Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities of
any series issued in bearer form will be issuable in denominations of
$5,000 (Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium or Make-Whole Amount, if any) and interest on any
series of Senior Securities will be payable at the corporate trust office
of the Senior Indenture Trustee located at Corporate Trust Administration,
999 Peachtree Street, N.E., Suite 1100, Atlanta, Georgia 30309, and the
principal of (and premium or Make-Whole Amount, if any) and interest on any
series of Subordinated Securities will be payable at the corporate trust
office of the Subordinated Indenture Trustee located at Corporate Trust
Administration, 999 Peachtree Street, N.E., Suite 1100, Atlanta, Georgia
30309; provided that at the option of the Company payment of interest on
any series of Debt Securities may be made by check mailed to the address of
the Person entitled thereto as it appears in the Security Register for such
series or by wire transfer of funds to such Person at an account maintained
within the United States (Sections 301, 305, 306, 307 and 1002 of each
Indenture).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular
Record Date and may either be paid to the Person in whose name such Debt
Security is registered at the close of business on a special record date
(the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee, in which case notice thereof shall be given to the
Holder of such Debt Security not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as
more completely described in the applicable Indenture (Section 307 of each
Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of
such Debt Securities at the corporate trust office of the Trustee referred
to above. In addition, subject to certain limitations imposed upon Debt
Securities issued in book-entry form, the Debt Securities of any series may
be surrendered for conversion or registration of transfer thereof at the
corporate trust office of the Trustee referred to above. Every Debt
Security surrendered for conversion, registration or transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer.
No service charge will be made for any registration or transfer or exchange
of any Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith (Section 305 of each Indenture). If the applicable
Prospectus Supplement refers to any transfer agent (in addition to the
Trustee) initially designated by the Company with respect to any series of
Debt Securities, the Company may at any time rescind the designation of any
such transfer agent or approve a change in the location through which such
transfer agent acts, except that the Company will be required to maintain a
transfer agent in each Place of Payment for such series. The Company may
at any time designate additional transfer agents with respect to any series
of Debt Securities (Section 1002 of each Indenture).
Neither the Company nor the Trustee shall be required to (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close of
business on the day of mailing or publication of the relevant notice of
redemption; (ii) register the transfer of or exchange any Registered
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Security being redeemed in part; (iii) exchange
any Bearer Security selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption; or (iv) issue, register the transfer of or
exchange any Debt Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Debt Security not
to be so repaid (Section 305 of each Indenture).
Merger, Consolidation or Sale
- -----------------------------
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
entity, provided that (a) either the Company shall be the continuing
entity, or the successor entity (if other than the Company) formed by or
resulting from any such consolidation or merger or which shall have
received the transfer of such assets is a Person organized and existing
under the laws of the United States or any State thereof and shall
expressly assume payment of the principal of (and premium or Make-Whole
Amount, if any) and interest (including all Additional Amounts, if any) on
all of the Debt Securities and the due and punctual performance and
observance of all of the covenants and conditions contained in each
Indenture; (b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result thereof as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default under
an Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (c) an Officers' Certificate and legal opinion covering
such conditions shall be delivered to the Trustee (Sections 801 and 803 of
each Indenture).
Certain Covenants
- -----------------
EXISTENCE. Except as described above under "Merger, Consolidation or
Sale," the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the existence, rights (charter
and statutory) and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any
right or franchise if it determines that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof is not disadvantageous in
any material respect to the Holders of the Debt Securities of any series
(Section 1005 of each Indenture).
MAINTENANCE OF PROPERTIES. The Company will cause all of its properties
used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that the Company
and its Subsidiaries shall not be prevented from selling or otherwise
disposing of for value their properties in the ordinary course of business
(Section 1006 of each Indenture).
INSURANCE. The Company will, and will cause each of its Subsidiaries
to, keep all of its insurable properties insured against loss or damage in
an amount at least equal to their then full insurable value with
financially sound and reputable insurance companies (Section 1007 of each
Indenture).
PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or discharge or
cause to be paid or discharged, before the same become delinquent, (i) all
taxes, assessments and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or property of the Company or
any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings
(Section 1008 of each Indenture).
PROVISION OF FINANCIAL INFORMATION. Whether or not the Company is
subject to Section 13 or 15(d) of the Exchange Act, the Company will, to
the extent permitted under the Exchange Act, file with the Commission the
annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to such
Section 13 and 15(d) if the Company were so subject, such documents to be
filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so
to file such documents if the Company were so subject. The Company will
also in any event (x) within 15 days of each Required Filing Date (i)
transmit by mail to all Holders of Debt Securities, as their names and
addresses appear in the Security Register, without cost to such Holders,
copies of the annual reports and quarterly reports which the Company would
have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Company were subject to such Sections and
(ii) file with the Trustee copies of the annual reports, quarterly reports
and other documents which the Company would have been required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Company were subject to such Sections and (y) if filing such documents by
the Company with the Commission is not permitted under the Exchange Act,
promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any
prospective Holder (Section 1009 of each Indenture).
WAIVER OF CERTAIN COVENANTS. The Company may omit to comply with any
term, provision or condition of the foregoing covenants, and with any other
term, provision or condition with respect to the Debt Securities of any
series specified in Section 301 of the Indentures (except any such term,
provision or condition which could not be amended without the consent of
all Holders of Debt Securities of such series), if before or after the time
for such compliance the Holders of at least a majority in principal amount
of all outstanding Debt Securities of such series, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived,
and until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ADDITIONAL COVENANTS. Any additional covenants of the Trust with
respect to any series of Debt Securities will be set forth in the
Prospectus Supplement relating thereto.
Events of Default, Notice and Waiver
- ------------------------------------
Each Indenture provides that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder:
(a) default for 30 days in the payment of any installment of interest or
Additional Amounts payable on any Debt Security of such series: (b)
default in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) any Debt Security of such series at its Maturity; (c)
default in making any sinking fund payment as required for any Debt
Security of such series; (d) default in the performance of any other
covenant of the Company contained in the Indenture (other than a covenant
added to the Indenture solely for the benefit of a series of Debt
Securities issued thereunder other than such series), continued for 60 days
after written notice as provided in the Indenture; (e) default under any
bond, debenture, note, mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (or by any Subsidiary, the
repayment of which the Company has guaranteed or for which the Company is
directly responsible or liable as obligor or guarantor) having an aggregate
principal amount outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall
have resulted in such indebtedness being declared due and payable prior to
the date on which it would otherwise have become due and payable, without
such acceleration having been rescinded or annulled within 10 days after
written notice to the Company as provided in the Indenture; (f) the entry
by a court of competent jurisdiction of one or more judgments, orders or
decrees against the Company or any Subsidiary in an aggregate amount
(excluding amounts fully covered by insurance) in excess of $10,000,000 and
such judgments, orders or decrees remain undischarged, unstayed and
unsatisfied in an aggregate amount (excluding amounts fully covered by
insurance) in excess of $10,000,000 for a period of 30 consecutive days;
(g) certain events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of the Company or any
Significant Subsidiary or for all or substantially all of the property of
the Company or any Significant Subsidiary; and (h) any other Event of
Default provided with respect to such series of Debt Securities (Section
501 of each Indenture). The term "Significant Subsidiary" means each
significant subsidiary (as defined in Regulations S-X promulgated under the
Securities Act) of the Company.
If an Event of Default under either Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms thereof) of, and
premium or Make-Whole Amount, if any, on, all of the Debt Securities of
that series to be due and payable immediately by written notice thereof to
the Company (and to the Trustee if given by the Holders). However, at any
time after such declaration of acceleration with respect to Debt Securities
of such series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) may rescind
and annul such declaration and its consequences if (a) the Company shall
have deposited with the Trustee all required payments of the principal of
(and premium or Make-Whole Amount, if any) and interest, and any Additional
Amounts, on the Debt Securities of such series (or of all Debt Securities
then Outstanding under the applicable Indenture, as the case may be), plus
certain fees, expenses, disbursements and advances of the Trustee and (b)
all Events of Default, other than the nonpayment of accelerated principal
(or specified portion thereof and the premium or Make-Whole Amount, if any)
or interest, with respect to the Debt Securities of such series (or of all
Debt Securities then Outstanding under the applicable Indenture, as the
case may be) have been cured or waived as provided in the Indenture
(Section 502 of each Indenture). Each Indenture also provides that the
Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series (or of all Debt Securities then Outstanding
under the applicable Indenture, as the case may be) may waive any past
default with respect to such series and its consequences, except a default
(x) in the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest or Additional Amounts payable on any Debt Security of such
series or (y) in respect of a covenant or provision contained in the
applicable Indenture that cannot be modified or amended without the consent
of the Holder of each Outstanding Debt Security affected thereby (Section
513 of each Indenture).
The Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the applicable Indenture; provided,
however, that such Trustee may withhold notice to the Holders of any series
of Debt Securities of any default with respect to such series (except a
default in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest or Additional Amounts payable on any Debt
Security of such series or in the payment of any sinking fund installment
in respect of any Debt Security of such series) if the Responsible Officers
of such Trustee consider such withholding to be in the interest of such
Holders (Section 601 of each Indenture).
Each Indenture provides that no Holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to such
Indenture or for any remedy thereunder, except in the case of failure of
the Trustee, for 60 days, to act after it has received a written request to
institute proceedings in respect of an Event of Default from the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of
such series, as well as an offer of reasonable indemnity (Section 507 of
each Indenture). This provision will not prevent, however, any Holder of
Debt Securities from instituting suit for the enforcement of payment of the
principal of (and premium or Make-Whole Amount, if any), interest on and
Additional Amounts payable with respect to, such Debt Securities at the
respective due dates or redemption dates thereof (Section 508 of each
Indenture).
Modification of the Indentures
- ------------------------------
Modifications and amendment of either Indenture may be made with the
consent of the Holders of not less than a majority in principal amount of
all Outstanding Debt Securities issued under such Indenture that are
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
such Debt Security affected thereby, (a) change the stated Maturity of the
principal of (or premium or Make-Whole Amount, if any), or any installment
of principal of or interest or Additional Amounts payable on, any such Debt
Security; (b) reduce the principal amount of, or the rate or amount of
interest on, or any premium or Make-Whole Amount payable on redemption of,
or any Additional Amount payable with respect to, any such Debt Security,
or reduce the amount of principal of an Original Issue Discount Security or
Make-Whole Amount, if any, that would be due and payable upon declaration
of acceleration of the maturity thereof or would be provable in bankruptcy,
or adversely affect any right of repayment of the Holder of any such Debt
Security; (c) change the Place of Payment, or the coin or currency, for
payment of principal of (and premium or Make-Whole Amount, if any), or
interest on, or any Additional Amounts payable with respect to, any such
Debt Security; (d) impair the right to institute suit for the enforcement
of any payment on or with respect to any such Debt Security; (e) reduce the
percentage of Outstanding Debt Securities of any series, the consent of
whose Holders is necessary to modify or amend the applicable Indenture, to
waive compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set
forth in the Indenture; or (f) modify any of the foregoing provisions or
any of the provisions relating to the waiver of certain past defaults or
certain covenants, except to increase the required percentage to effect
such action or to provide that certain other provisions may not be modified
or waived without the consent of the Holder of each such Debt Security
(Section 902 of each Indenture).
The Holders of not less than a majority in principal amount of
Outstanding Debt Securities issued under either Indenture have the right to
waive compliance by the Company with certain covenants in such Indenture
(Section 1012 of each Indenture).
Modifications and amendments of either Indenture may be made by the
Company and the respective Trustee thereunder without the consent of any
Holder of Debt Securities for any of the following purposes:
(i) to evidence the succession of another Person to the Company as
obligor under such Indenture;
(ii) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debt Securities or to surrender
any right or power conferred upon the Company in such Indenture;
(iii) to add Events of Default for the benefit of the Holders of all or
any series of Debt Securities;
(iv) to add or change any provisions of either Indenture to facilitate
the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the
issuance of Debt Securities in uncertificated form provided that
such action shall not adversely affect the interests of the
Holders of the Debt Securities of any series in any material
respect;
(v) to add, change or eliminate any provisions of either Indenture,
provided that any such addition, change or elimination shall
become effective only when there are no Debt Securities
Outstanding of any series created prior thereto which are
entitled to the benefit of such provision;
(vi) to secure the Debt Securities;
(vii) to establish the form or terms of Debt Securities of any series,
including the provisions and procedures, if applicable, for the
conversion of such Debt Securities into Common Stock or Preferred
Stock of the Company;
(viii) to provide for the acceptance of appointment by a successor
Trustee or facilitate the administration of the trusts under
either Indenture by more than one Trustee;
(ix) to cure any ambiguity, defect or inconsistency in either
Indenture, provided that such action shall not adversely affect
the interests of Holders of Debt Securities of any series issued
under such Indenture;
(x) to close either Indenture with respect to the authentication and
delivery of additional series of Debt Securities or to qualify,
or maintain qualification of, either Indenture under the Trust
Indenture Act; or
(xi) to supplement any of the provisions of either Indenture to the
extent necessary to permit or facilitate defeasance and discharge
of any series of such Debt Securities, provided that such action
shall not adversely affect the interests of the Holders of the
Debt Securities of any series in any material respect (Section
901 of each Indenture).
Subordination
- -------------
Upon any distribution to creditors of the Company in a liquidation,
dissolution, bankruptcy, insolvency or reorganization, the payment of the
principal of and interest on the Subordinated Securities will be
subordinated to the extent provided in the Subordinated Indenture in right
of payment to the prior payment in full of all Senior Debt (Sections 1601
and 1602 of the Subordinated Indenture), but the obligation of the Company
to make payment of the principal and interest on the Subordinated
Securities will not otherwise be affected (Section 1608 of the Subordinated
Indenture). No payment of principal or interest may be made on the
Subordinated Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Company receives
notice of the default (Section 1603 of the Subordinated Indenture). The
Company may resume payments on the Subordinated Securities when the default
is cured or waived, or 120 days pass after the notice is given if the
default is not the subject of judicial proceedings, if the subordination
provisions of the Subordinated Indenture otherwise permit payment at that
time (Section 1603 of the Subordinated Indenture). After all Senior Debt
is paid in full and until the Subordinated Securities are paid in full,
holders will be subrogated to the rights of holders of Senior Debt to the
extent that distributions otherwise payable to holders have been applied to
the payment of Senior Debt (Section 1607 of the Subordinated Indenture). By
reason of such subordination, in the event of a distribution of assets upon
insolvency, certain general creditors of the Company may recover more,
ratably, than holders of the Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the principal of
and interest on, or substantially similar payments to be made by the
Company in respect of, the following, whether outstanding at the date of
execution of the Subordinated Indenture or thereafter incurred, created or
assumed: (a) indebtedness of the Company for money borrowed or represented
by purchase-money obligations, (b) indebtedness of the Company evidenced by
notes, debentures, or bonds, or other securities issued under the
provisions of an indenture, fiscal agency agreement or other instrument,
(c) obligations of the Company as lessee under leases of property either
made as part of any sale and leaseback transaction to which the Company is
a party or otherwise, (d) indebtedness of partnerships and joint ventures
that is included in the consolidated financial statements of the Company,
(e) indebtedness, obligations and liabilities of others in respect of which
the Company is liable contingently or otherwise to pay or advance money or
property or as guarantor, endorser or otherwise or which the Company has
agreed to purchase or otherwise acquire, and (f) any binding commitment of
the Company to fund any real estate investment or to fund any investment in
any entity making such real estate investment, in each case other than (1)
any such indebtedness, obligation or liability referred to in clauses (a)
through (f) above as to which, in the instrument creating or evidencing the
same pursuant to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of payment
to the Subordinated Securities or ranks pari passu with the Subordinated
Securities, (2) any such indebtedness, obligation or liability which is
subordinated to indebtedness of the Company to substantially the same
extent as or to a greater extent than the Subordinated Securities are
subordinated, and (3) the Subordinated Securities (Section 101 of the
Subordinated Indenture). At December 31, 1994, Senior Debt aggregated
approximately $212.8 million. There are no restrictions in the
Subordinated Indenture upon the creation of additional Senior Debt or other
indebtedness.
Discharge, Defeasance and Covenant Defeasance
- ---------------------------------------------
Under each Indenture, the Company may discharge certain obligations to
Holders of any series of Debt Securities issued thereunder that have not
already been delivered to the applicable Trustee for cancellation and that
either have become due and payable or will become due and payable within
one year (or scheduled for redemption within one year) by irrevocably
depositing with the applicable Trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or currencies in
which such Debt Securities are payable in an amount sufficient to pay the
entire indebtedness on such Debt Securities in respect of principal (and
premium or Make-Whole Amount, if any) and interest and any Additional
Amounts payable to the date of such deposit (if such Debt Securities have
become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be (Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article Fourteen
thereof are made applicable to the Debt Securities of or within any series
pursuant to section 301 of such Indenture, the Company may elect either (a)
to defease and be discharged from any and all obligations with respect to
such Debt Securities (except for the obligation to pay Additional Amounts,
if any, upon the occurrence of certain events of tax, assessment or
governmental charge with respect to payments on such Debt Securities and
the obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities, to maintain an office or agency in respect of such Debt
Securities and to hold moneys for payment in trust) ("defeasance") (Section
1402 of each Indenture) or (b) to be released from its obligations with
respect to such Debt Securities under provisions of each Indenture
described under "Certain Covenants," or, if provided pursuant to Section
301 of each Indenture, its obligations with respect to any other covenant,
and any omission to comply with such obligations shall not constitute a
default or an Event or Default with respect to such Debt Securities
("covenant defeasance") (Section 1403 of each Indenture), in either case
upon the irrevocable deposit by the Company with the applicable Trustee, in
trust, of an amount, in such currency or currencies, currency unit or
currency units or composite currency or currencies in which such Debt
Securities are payable at Stated Maturity, or Government Obligations (as
defined below), or both, applicable to such Debt Securities which through
the scheduled payment of principal and interest in accordance with their
terms will provide money in an amount sufficient to pay the principal of
(and premium or Make-Whole Amount, if any) and interest on such Debt
Securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Company
has delivered to the applicable Trustee an Opinion of Counsel (as specified
in each Indenture) to the effect that the Holders of such Debt Securities
will not recognize income, gain or loss for United States federal income
tax purposes as a result of such defeasance or covenant defeasance and will
be subject to United States federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and such Opinion of
Counsel, in the case of defeasance, must refer to and be based upon a
ruling of the Internal Revenue Service or a change in applicable United
States federal income tax laws occurring after the date of such Indenture
(Section 1404 of each Indenture).
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued
the Foreign Currency in which the Debt Securities of a particular series
are payable, for the payment of which its full faith and credit is pledged
or (ii) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America or the
government which issued the Foreign Currency in which the Debt Securities
of such series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America or such other government, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian
for the account of the holder of a depositary receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depositary receipt (Section 101 of
each Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Company has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Debt Securities of
any series, (a) the Holder of a Debt Security of such series is entitled
to, and does, elect pursuant to Section 301 of either Indenture or the
terms of such Debt Security to receive payment in a currency, currency unit
or composite currency other than that in which such deposit has been made
in respect to such Debt Security, or (b) a Conversion Event (as defined
below) occurs in respect of the currency, currency unit or composite
currency in which such deposit has been made, the indebtedness represented
by such Debt Security shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any) and interest on such Debt Security as
they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the currency, currency unit
or composite currency in which such Debt Security becomes payable as a
result of such election or such cessation of usage based on the applicable
market exchange rate (Section 1405 of each Indenture).
"Conversion Event" means the cessation of use of (i) a currency,
currency unit or composite currency issued by the government of one or more
countries other than the United States (other than the ECU or other
currency unit) both by the government of the country that issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities
or (iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established (Section 101 of each Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium or Make-Whole Amount, if any) and
interest on any Debt Security that is payable in a Foreign Currency that
ceases to be used by its government of issuance shall be made in United
States dollars.
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than the Event of
Default described in clause (d) under "Events of Default, Notice and
Waiver" with respect to Sections 1004 to 1009, inclusive, of either
Indenture (which Sections would no longer be applicable to such Debt
Securities) or described in clause (h) under "Events of Default, Notice and
Waiver" with respect to a covenant as to which there has been covenant
defeasance, the amount in such currency, currency unit or composite
currency in which such Debt Securities are payable, and Government
Obligations on deposit with the Trustee, will be sufficient to pay amounts
due on such Debt Securities at the time of their Stated Maturity but may
not be sufficient to pay amounts due on such Debt Securities at the time of
the acceleration resulting from such Event of Default. However, the Company
would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect
to the Debt Securities of or within a particular series.
Conversion Rights
- -----------------
The terms and conditions, if any, upon which the Debt Securities are
convertible into Capital Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include whether
such Debt Securities are convertible into Capital Stock, the conversion
price (or manner of calculation thereof), the conversion period, provisions
as to whether conversion will be at the option of the Holders or the
Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities.
Book-Entry System
- -----------------
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified
in the Prospectus Supplement relating to such series. Global Securities, if
any, issued in the United States are expected to be deposited with the
Depositary Trust Company, as Depositary. Global Securities may be issued in
fully registered form and may be issued in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not
be transferred except as a whole by the Depositary for such Global Security
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or
any nominee of such Depositary to a successor Depositary or any nominee of
such successor.
The specific terms of the depositary arrangement with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such series. The Company expects that unless otherwise
indicated in the applicable Prospectus Supplement, the following provisions
will apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit on its book-entry registration and
transfer system the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons
that have accounts with such Depositary ("Participants"). Such accounts
shall be designated by the underwriters, dealers or agents with respect to
such Debt Securities or by the Company if such Debt Securities are offered
directly by the Company. Ownership of beneficial interests in such Global
Security will be limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depositary for such Global
Security or its nominee (with respect to beneficial interests of
Participants) and records of Participants (with respect to beneficial
interests of persons who hold through Participants). The laws of some
states require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and laws may impair the
ability to own, pledge or transfer beneficial interest in a Global
Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or such nominee,
as the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable
Prospectus Supplement, owners of beneficial interest in a Global Security
will not be entitled to have any of the individual Debt Securities
represented by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of any such Debt
Securities in definitive form and will not be considered the owners or
holders thereof under the applicable Indenture.
Payments of principal of, any premium or Make-Whole Amount and any
interest on, or any Additional Amounts payable with respect to, individual
Debt Securities represented by a Global Security registered in the name of
a Depositary or its nominee will be made to the Depositary or its nominee,
as the case may be, as the registered owner of the Global Security. None
of the Company, the Trustee, any Paying Agent or the Security Registrar for
such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities or its
nominee, upon receipt of any payment of principal, premium, Make-Whole
Amount, interest or Additional Amounts in respect of the Global Security
representing such Debt Securities, will immediately credit Participants'
accounts with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such Global Security as
shown on the records of such Depositary or its nominee. The Company also
expects that payments by Participants to owners of beneficial interests in
such Global Security held through such Participants will be governed by
standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered
in street name. Such payments will be the responsibility of such
Participants.
If a Depositary for any Debt Securities is at any time unwilling, unable
or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual
Debt Securities in exchange for the Global Security representing such Debt
Securities. In addition, the Company may at any time and in its sole
discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any of
such Debt Securities represented by one or more Global Securities and in
such event will issue individual Debt Securities in exchange for the Global
Security or Securities representing such Debt Securities. Individual Debt
Securities so issued will be issued in denominations of $1,000 and integral
multiples thereof.
Trustees
- --------
First Union National Bank of North Carolina, the Senior Indenture
Trustee and the Subordinate Indenture Trustee, also provides the Company's
revolving line of credit facility and from time to time directly or through
affiliates performs other services for the Company in the normal course of
business.
Governing Law
- -------------
The Indentures are governed by and shall be construed in accordance with
the laws of the State of Georgia.
DESCRIPTION OF COMMON STOCK
This summary of certain terms and provisions of the Company's Common
Stock does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the terms and provisions of the Company's
Articles of Incorporation, as amended (the "Articles"), and By-laws, as
amended, which are filed as exhibits to the Registration Statement of which
this Prospectus is a part.
The Company has 50,000,000 shares of Common Stock authorized and
30,744,451 shares were outstanding at December 31, 1994. All outstanding
shares of Common Stock are fully paid and nonassessable.
The transfer agent and registrar for the Common Stock is First Union
National Bank of North Carolina, Charlotte, North Carolina. The Company's
Common Stock is traded on the New York Stock Exchange under the symbol
"MRY".
The holders of Common Stock are entitled to receive such dividends as
are declared by the Board of Directors, after payment of, or provision for,
full cumulative dividends for outstanding Preferred Stock. Each share of
Common Stock is entitled to one vote on all matters submitted to a vote of
shareholders, including the election of directors. Cumulative voting for
directors is not permitted, which means that holders of more than 50% of
all of the shares of Common Stock voting can elect all of the directors if
they choose to do so, and, in such event, the holders of the remaining
shares of Common Stock will not be able to elect any directors. Holders of
Common Stock and Preferred Stock, when outstanding and when entitled to
vote, vote as a class, except with respect to matters that relate only to
the rights, terms or conditions of the Preferred Stock, that affect only
the holders of the Preferred Stock, or that relate to the rights of the
holders of the Preferred Stock if the Company fails to fulfill any of its
obligations regarding the Preferred Stock. Upon any dissolution,
liquidation or winding up of the Company, the holders of Common Stock are
entitled to receive pro rata all of the Company's assets and funds
remaining after payment of, or provision for, creditors and distribution
of, or provision for, preferential amounts and unpaid accumulated dividends
to holders of Preferred Stock. Holders of Common Stock have no preemptive
right to purchase or subscribe for any shares of capital stock of the
Company.
DESCRIPTION OF PREFERRED STOCK
This summary of certain terms and provisions of the Company's Preferred
Stock does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the terms and provisions of the Company's
Articles and By-laws, as amended, which are filed as exhibits to the
Registration Statement of which this Prospectus is a part.
The Articles authorize the issuance of 20,000,000 shares of Preferred
Stock, without par value, of which 2,516,324 shares of Series A Preferred
Stock and 4,000,000 shares of Series B Preferred Stock were issued and
outstanding at December 31, 1994. All outstanding shares of the Series A
Preferred Stock and the Series B Preferred Stock are fully paid and
nonassessable.
The transfer agent and registrar for the Series A Preferred Stock and
the Series B Preferred Stock is First Union National Bank of North
Carolina, Charlotte, North Carolina.
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of
Preferred Stock offered by a Prospectus Supplement will be described in
that Prospectus Supplement. The description set forth below is subject to
and qualified in its entirety by reference to the Articles of Amendment to
the Articles fixing the preferences, limitations and relative rights of a
particular series of Preferred Stock.
General
- -------
Under the Articles, the Board of Directors of the Company is authorized,
without further shareholder action, to provide for the issuance of up to
20,000,000 shares of Preferred Stock, in one or more series, with such
voting powers and with such designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions, as the Board of Directors shall approve. At
December 31, 1994 the Company had 6,516,324 shares of Preferred Stock
issued and outstanding of its 20,000,000 authorized shares of Preferred
Stock.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in
the Prospectus Supplement relating to a particular series of Preferred
Stock. Reference is made to the Prospectus Supplement relating to the
particular series of Preferred Stock offered thereby for specific terms,
including: (i) the title and liquidation preference per share of such
Preferred Stock and the number of shares offered; (ii) the price at which
such series of Preferred Stock will be issued; (iii) the dividend rate (or
method of calculation), the dates on which dividends shall be payable and
the dates from which dividends shall commence to accumulate; (iv) any
redemption or sinking fund provisions of such series of Preferred Stock;
(v) any conversion provisions of such series of Preferred Stock; and (vi)
any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions of such
series of Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Preferred Stock, each series will rank on a parity as
to dividends and distributions in the event of a liquidation with each
other series of Preferred Stock and, in all cases, will be senior to the
Common Stock.
Dividend Rights
- ---------------
Holders of Preferred Stock of each series will be entitled to receive,
when as and if declared by the Board of Directors, out of assets of the
Company legally available therefor, cash dividends at such rates and on
such dates as are set forth in the Prospectus Supplement relating to such
series of Preferred Stock. Such rate may be fixed or variable or both and
may be cumulative, noncumulative or partially cumulative.
If the applicable Prospectus Supplement so provides, as long as any
shares of Preferred Stock are outstanding, no dividends will be declared or
paid or any distributions be made on the Common Stock, other than a
dividend payable in Common Stock, unless the accrued dividends on each
series of Preferred Stock have been fully paid or declared and set apart
for payment and the Company shall have set apart all amounts, if any,
required to be set apart for all sinking funds, if any, for each series of
Preferred Stock.
If the applicable Prospectus Supplement so provides, when dividends are
not paid in full upon any series of Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with such series of
Preferred Stock, all dividends declared upon such series of Preferred Stock
and any other series of Preferred Stock ranking on a parity as to dividends
will be declared pro rata so that the amount of dividends declared per
share on such series of Preferred Stock and such other series will in all
cases bear to each other the same ratio that accrued dividends per share on
such series of Preferred Stock and such other series bear to each other.
Each series of Preferred Stock will be entitled to dividends as
described in the Prospectus Supplement relating to such series, which may
be based upon one or more methods of determination. Different series of
Preferred Stock may be entitled to dividends at different dividend rates or
based upon different methods of determination. Except as provided in the
applicable Prospectus Supplement, no series of Preferred Stock will be
entitled to participate in the earnings or assets of the Company.
Rights Upon Liquidation
- -----------------------
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock
will be entitled to receive out of the assets of the Company available for
distribution to shareholders, the amount stated or determined on the basis
set forth in the Prospectus Supplement relating to such series, which may
include accrued dividends, if such liquidation, dissolution or winding up
is involuntary or may equal the current redemption price per share
(otherwise than for the sinking fund, if any, provided for such series)
provided for such series set forth in such Prospectus Supplement, if such
liquidation, dissolution or winding up is voluntary, and on such
preferential basis as is set forth in such Prospectus Supplement. If, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, the amounts payable with respect to Preferred Stock of any series
and any other shares of stock of the Company ranking as to any such
distribution on a parity with such series of Preferred Stock are not paid
in full, the holders of Preferred Stock of such series and of such other
shares will share ratably in any such distribution of assets of the Company
in proportion to the full respective preferential amounts to which they are
entitled or on such other basis as is set forth in the applicable
Prospectus Supplement. The rights, if any, of the holders of any series of
Preferred Stock to participate in the assets of the Company remaining after
the holders of other series of Preferred Stock have been paid their
respective specified liquidation preferences upon any liquidation,
dissolution or winding up of the Company will be described in the
Prospectus Supplement relating to such series.
Redemption
- ----------
A series of Preferred Stock may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the times and the
redemption prices and for the types of consideration set forth in the
Prospectus Supplement relating to such series. The Prospectus Supplement
relating to a series of Preferred Stock which is subject to mandatory
redemption shall specify the number of shares of such series that shall be
redeemed by the Company in each year commencing after a date to be
specified, at a redemption price per share to be specified, together with
an amount equal to any accrued and unpaid dividends thereon to the date of
redemption. Except as indicated in the applicable Prospectus Supplement,
the Preferred Stock is not subject to any mandatory redemption at the
option of the holder.
Sinking Fund
- ------------
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, of a sinking fund for the purchase or redemption of that
series.
Conversion Rights
- -----------------
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, on which shares of that series are convertible into
shares of Common Stock or another series of Preferred Stock. The Preferred
Stock will have no preemptive rights.
Voting Rights
- -------------
Except as indicated in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
Georgia law, a holder of Preferred Stock will not be entitled to vote.
Except as indicated in the Prospectus Supplement relating to a particular
series of Preferred Stock, in the event the Company issues full shares of
any series of Preferred Stock, each such share will be entitled to one vote
on matters on which holders of such series of Preferred Stock are entitled
to vote.
Transfer Agent and Registrar
- ----------------------------
The transfer agent, registrar and dividend disbursement agent for a
series of Preferred Stock will be selected by the Company and be described
in the applicable Prospectus Supplement. The registrar for shares of
Preferred Stock will send notices to shareholders of any meetings at which
holders of Preferred Stock have the right to vote on any matter.
Dividend Restrictions
- ---------------------
Covenants in the Company's loan agreements with certain lenders prohibit
the payment of any dividends or other distributions upon the occurrence of
an event of default under such agreements and otherwise limit such
dividends and distributions after September 30, 1993 to a cumulative amount
which is not more than the Company's net earnings plus depreciation and
amortization after September 30, 1993.
Outstanding Preferred Stock
- ---------------------------
SERIES A PREFERRED STOCK. The Series A Preferred Stock ranks senior to
the Common Stock, and pari passu with the Series B Preferred Stock, with
respect to payment of dividends and amounts upon liquidation, dissolution
or winding up. Holders of Series A Preferred Stock are entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds legally available for payment, cumulative cash dividends at
the rate per annum of $1.75 per share of Series A Preferred Stock.
Dividends on the Series A Preferred Stock are payable quarterly in arrears
on the last calendar day of March, June, September and December of each
year.
Shares of Series A Preferred Stock are not redeemable by the Company
prior to June 30, 1998, and at no time are the shares of Series A Preferred
Stock redeemable for cash. On and after June 30, 1998, the shares of
Series A Preferred Stock are redeemable at the option of the Company, in
whole or in part, for such number of shares of Common Stock as equals the
liquidation preference of the Series A Preferred Stock to be redeemed
divided by the applicable conversion price as of the opening of business on
the date set for such redemption, subject to adjustment in certain
circumstances. The Company may exercise this option only if for 20 trading
days, within any period of 30 consecutive trading days, including the last
trading day of such period, the closing price of the Common Stock on the
New York Stock Exchange equals or exceeds the conversion price per share,
subject to adjustments in certain circumstances.
The holders of Series A Preferred Stock are entitled to receive in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, $25.00 per share of Series A Preferred Stock plus
an amount per share of Series A Preferred Stock equal to all dividends
(whether or not earned or declared) accrued and unpaid thereon to the date
of final distribution to such holders, and no more. Except under certain
circumstances or except as otherwise from time to time required by
applicable law, the holders of Series A Preferred Stock have no voting
rights.
SERIES B PREFERRED STOCK. The Series B Preferred Stock ranks senior to
the Common Stock, and pari passu with the Series A Preferred Stock, with
respect to payment of dividends and amounts upon liquidation, dissolution
or winding up. Holders of Series B Preferred Stock are entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds legally available for payment, cumulative cash dividends at
the rate per annum of $2.205 per share of Series B Preferred Stock.
Dividends on the Series B Preferred Stock are payable quarterly in arrears
on the last calendar day of March, June, September and December of each
year.
Shares of Series B Preferred Stock are not redeemable by the Company
prior to October 31, 1999, and at no time are the shares of Series B
Preferred Stock redeemable for cash. On and after October 31, 1999, the
shares of Series B Preferred Stock are redeemable at the option of the
Company, in whole or in part, for such number of shares of Common Stock as
equals the liquidation preference of the Series B Preferred Stock to be
redeemed divided by the applicable conversion price as of the opening of
business on the date set for such redemption, subject to adjustment in
certain circumstances. The Company may exercise this option only if for 20
trading days, within any period of 30 consecutive trading days, including
the last trading day of such period, the closing price of the Common Stock
on the New York Stock Exchange equals or exceeds the conversion price per
share, subject to adjustments in certain circumstances.
The holders of Series B Preferred Stock are entitled to receive in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, $25.00 per share of Series B Preferred Stock plus
an amount per share of Series B Preferred Stock equal to all dividends
(whether or not earned or declared) accrued and unpaid thereon to the date
of final distributions to such holders, and no more. Except under certain
circumstances or except as otherwise from time to time required by
applicable law, the holders of Series B Preferred Stock have no voting
rights.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue Common Stock Warrants for the purchase of Common
Stock. Common Stock Warrants may be issued independently or together with
any other Offered Securities offered by any Prospectus Supplement and may
be attached to or separate from such Offered Securities. Each series of
Common Stock Warrants will be issued under a separate warrant agreement
(each, a "Warrant Agreement") to be entered into between the Company and a
warrant agent specified in the applicable Prospectus Supplement (the
"Warrant Agent"). The Warrant Agent will act solely as an agent of the
Company in connection with the Common Stock Warrants of such series and
will not assume any obligation or relationship of agency or trust for or
with any holders or beneficial owners of Common Stock Warrants. The
following sets forth certain general terms and provisions of the Common
Stock Warrants offered hereby. Further terms of the Common Stock Warrants
and the applicable Warrant Agreements will be set forth in the applicable
Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of the
Common Stock Warrants in respect of which this Prospectus is being
delivered, including, where applicable, the following: (1) the title of
such Common Stock Warrants; (2) the aggregate number of such Common Stock
Warrants: (3) the price or prices at which such Common Stock Warrants will
be issued; (4) the designation, number and terms of the shares of Common
Stock purchasable upon exercise of such Common Stock Warrants; (5) the
designation and terms of the other Offered Securities with which such
Common Stock Warrants are issued and the number of such Common Stock
Warrants issued with each such Offered Security; (6) the date, if any, on
and after which such Common Stock Warrants and the related Common Stock
will be separately transferable; (7) the price at which each share of
Common Stock purchasable upon exercise of such Common Stock Warrants may be
purchased; (8) the date on which the right to exercise such Common Stock
Warrants shall commence and the date on which such right shall expire; (9)
the minimum or maximum amount of such Common Stock Warrants which may be
exercised at any one time; (10) information with respect to book-entry
procedures, if any; (11) a discussion of certain federal income tax
considerations; and (12) any other terms of such Common Stock Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Common Stock Warrants.
DESCRIPTION OF DEPOSITARY SHARES
The Company may, at its option, elect to offer receipts for fractional
interests ("Depositary Shares") in Preferred Stock. In such event,
receipts ("Depositary Receipts") for Depositary Shares, each of which will
represent a fraction (to be set forth in the Prospectus Supplement relating
to a particular series of Preferred Stock) of a share of a particular
series of Preferred Stock, will be issued as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit
Agreement") between the Company and the depositary named in the Prospectus
Supplement relating to such shares (the "Preferred Stock Depositary").
Subject to the terms of the Deposit Agreement, each owner of a Depositary
Share will be entitled, in proportion to the applicable fraction of a share
of Preferred Stock represented by such Depositary Share, to all the rights
and preferences of the Preferred Stock represented thereby (including
dividend, voting, redemption, subscription and liquidation rights). The
following summary of certain provisions of the Deposit Agreement does not
purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of the Deposit Agreement, including the
definitions therein of certain terms. Whenever particular sections of the
Deposit Agreement are referred to, it is intended that such sections shall
be incorporated herein by reference. Copies of the forms of Deposit
Agreement and Depositary Receipt are filed as exhibits to the Registration
Statement of which this Prospectus is a part, and the following summary is
qualified in its entirety by reference to such exhibits.
The Preferred Stock Depositary will distribute all cash dividends or
other cash distributions received in respect of the Preferred Stock to the
record holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders.
(Deposit Agreement, Section 4.01)
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares in an equitable manner, unless the Preferred Stock
Depositary determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may sell such property and
distribute the net proceeds from such sale to such holders. (Deposit
Agreement, Section 4.02)
Upon surrender of the Depositary Receipts at the corporate trust office
of the Preferred Stock Depositary and upon payment of the taxes, charges
and fees provided for in the Deposit Agreement and subject to the terms
thereof, the holder of the Depositary Shares evidenced thereby is entitled
to delivery at such office, to or upon his or her order, of the number of
whole shares of the related series of Preferred Stock and any money or
other property, if any, represented by such Depositary Shares.
If a series of Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Preferred Stock Depositary resulting from the
redemption, in whole or in part, of such series of Preferred Stock held by
the Preferred Stock Depositary. The redemption price per Depositary Share
will be equal to the applicable fraction of the redemption price per share
payable with respect to such series of the Preferred Stock. Whenever the
Company redeems shares of Preferred Stock held by the Preferred Stock
Depositary, the Preferred Stock Depositary will redeem as of the same
redemption date the number of Depositary Shares representing shares of
Preferred Stock so redeemed. If fewer than all the Depositary Shares are
to be redeemed, the Depositary Shares to be redeemed will be selected by
lot, pro rata or by any other equitable method as may be determined by the
Preferred Stock Depositary. (Deposit Agreement, Section 2.08)
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Preferred Stock Depositary will
mail the information contained in such notice of meeting to the record
holders of the Depositary Shares relating to such Preferred Stock. Each
record holder of such Depositary Shares on the record date (which will be
the same date as the record date for the Preferred Stock) will be entitled
to instruct the Preferred Stock Depositary as to the exercise of the voting
rights pertaining to the amount of the Preferred Stock represented by such
holder's Depositary Shares. The Preferred Stock Depositary will endeavor,
insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such instructions,
and the Company will agree to take all reasonable action which may be
deemed necessary by the Preferred Stock Depositary in order to enable the
Preferred Stock Depositary to do so. The Preferred Stock Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holder of Depositary Shares
representing such Preferred Stock. (Deposit Agreement, Section 4.05)
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However, any
amendment which materially and adversely alters the rights of the holders
of Depositary Shares will not be effective unless such amendment has been
approved by the holders of at least a majority of the Depositary Shares
then outstanding. (Deposit Agreement, Section 6.01) The Deposit Agreement
will only terminate if (i) all outstanding Depositary Shares have been
redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock in connection with any liquidation, dissolution or winding-
up of the Company and such distribution has been distributed to the holders
of Depositary Receipts. (Deposit Agreement, Section 6.02)
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements.
The Company will pay charges of the Preferred Stock Depositary in
connection with the initial deposit of the Preferred Stock and issuance of
Depositary Receipts, all withdrawals of shares of Preferred Stock by owners
of Depositary Shares and any redemption of the Preferred Stock. Holders of
Depositary Receipts will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in
the Deposit Agreement to be for their accounts. (Deposit Agreement,
Section 5.07)
The Preferred Stock Depositary may resign at any time by delivering to
the Company notice of its election to do so, and the Company may at any
time remove the Preferred Stock Depositary, any such resignation or removal
to take effect upon the appointment of a successor Preferred Stock
Depositary and its acceptance of such appointment. Such successor
Preferred Stock Depositary must be appointed within 60 days after delivery
of the notice of resignation or removal and must be a bank or trust company
having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000. (Deposit Agreement, Section
5.04)
The Preferred Stock Depositary will forward all reports and
communications from the Company which are delivered to the Preferred Stock
Depositary and which the Company is required or otherwise determines to
furnish to the holders of the Preferred Stock. (Deposit Agreement, Section
4.07)
Neither the Preferred Stock Depositary nor the Company will be liable
under the Deposit Agreement to holders of Depositary Receipts other than
for its negligence, willful misconduct or bad faith. Neither the Company
nor the Preferred Stock Depositary will be obligated to prosecute or defend
any legal proceeding in respect of any Depositary Shares or Preferred Stock
unless satisfactory indemnity is furnished. The Company and the Preferred
Stock Depositary may rely upon written advice of counsel or accountants, or
upon information provided by persons presenting Preferred Stock for
deposit, holders of Depositary Receipts or other persons believed to be
competent and on documents believed to be genuine. (Deposit Agreement,
Section 5.03)
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to or through underwriters
or may sell the Offered Securities to investors directly or through
designated agents. Any such underwriter or agent involved in the offer and
sale of the Offered Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price
or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Company also may, from time to time,
authorize underwriters acting as agents to offer and sell the Offered
Securities upon the terms and conditions set forth in any Prospectus
Supplement. In connection with the sale of Offered Securities,
underwriters may be deemed to have received compensation from the Company
in the form of underwriting discounts or commissions and may also receive
commissions from purchasers of Offered Securities for whom they may act as
agent. Underwriters may sell Offered Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions
or commissions (which may be changed from time to time) from the
underwriters and from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities and any
discounts, concessions or commissions allowed by underwriters to
participating dealers will be set forth in the applicable Prospectus
Supplement. Underwriters, dealers and agents participating in the
distribution of the Offered Securities may be deemed to be underwriters,
and any discounts and commissions received by them and any profit realized
by them on resale of the Offered Securities may be deemed to be
underwriting discounts and commissions, under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize dealers acting as the Company's agents to solicit offers by
certain institutions to purchase Offered Securities from the Company at the
public offering price set forth in such Prospectus Supplement pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and delivery
on the date or dates stated in such Prospectus Supplement. Each Contract
will be for an amount not less than, and the principal amount of Offered
Securities sold pursuant to Contracts shall not be less nor more than, the
respective amounts stated in such Prospectus Supplement. Institutions with
which Contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but will in
all cases be subject to the approval of the Company. Contracts will not be
subject to any conditions except (i) the purchase by an institution of the
Offered Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject and (ii) the Company shall have
sold to such underwriters the total principal amount of the Offered
Securities less the principal amount thereof covered by Contracts. A
commission indicated in the Prospectus Supplement will be paid to agents
and underwriters soliciting purchases of Offered Securities pursuant to
Contracts accepted by the Company. Agents and underwriters shall have no
responsibility in respect of the delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with, and perform services for, the Company in the
ordinary course of business.
EXPERTS
The audited financial statements and schedules of the Company
incorporated by reference in this Prospectus and elsewhere in the
registration statement of which this Prospectus is a part, have been
audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated
herein in reliance upon the authority of said firm as experts in giving
said reports.
LEGAL OPINIONS
Certain legal opinions relating to tax matters and the Offered
Securities will be passed upon for the Company by Hull, Towill, Norman &
Barrett, P.C., Augusta, Georgia. Certain legal matters relating to the
validity of the Offered Securities will be passed upon for the Underwriters
by Piper & Marbury, Baltimore, Maryland. W. Hale Barrett, a member of the
firm of Hull, Towill, Norman & Barrett, P.C., is a director and secretary
of the Company. He and members of his firm own 25,751 shares of the
Company's Common Stock.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of the estimated amounts of
expenses in connection with the issuance and distribution of the securities
to be registered hereby, other than underwriting discounts and commissions.
Securities and Exchange Commission registration fee . . $ 137,932
Blue Sky fees and expenses. . . . . . . . . . . . . . . $ 40,000
Accounting fees and expenses. . . . . . . . . . . . . . $ 205,000
Legal fees and expenses . . . . . . . . . . . . . . . . $ 150,000
Trustee's fees and expenses . . . . . . . . . . . . . . $ 30,000
Printing and engraving. . . . . . . . . . . . . . . . . $ 100,000
Transfer Agent Fees . . . . . . . . . . . . . . . . . . $ 10,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . $ 5,000
---------
Total $ 678,000
=========
Item 15. Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation contain the following
provisions:
(a) No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of his duty
of care or other duty as a director, provided that this provision shall
eliminate or limit the liability of a director only to the maximum extent
permitted by the Georgia Business Corporation Code or any successor law.
(b) Any repeal or modification of Section 11 by the shareholders of
the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
The Registrant's By-laws include the following indemnification
provisions:
(a) The corporation shall indemnify any person who was or is
threatened to be made a party to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (by reason of the fact that he is or was a director of the
corporation (as used in this Article VII, "director" shall have the meaning
set forth in O.C.G.A. (S) 14-2-850(2)), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
No indemnification under this subsection (a) shall be made:
i) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
ii) In connection with any other proceeding in which he was
adjudged liable on the basis that personal benefit was
improperly received by him.
(b) The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact he is or was a director, against
expenses, (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit, if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation; no indemnification
under this subsection (b) shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation, or is subjected to injunctive relief in favor of the
corporation:
i) For any appropriation, in violation of his duties, of any
business opportunity of the corporation;
ii) For acts or omissions which involve intentional misconduct or
a knowing violation of law;
iii) For the types of liability set forth in Code Section 14-2-832;
or
iv) For any transaction from which he received an improper
personal benefit, unless and only to the extent that the
court in which such action or suit was brought shall deter-
mine upon application that, despite adjudication of liability
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper (see amendment to
articles of incorporation dated May 3, 1988).
(c) To the extent that a director of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b) of this Article, or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Article,
unless ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if a quorum cannot be obtained under
paragraph (1) of this subsection, by majority vote of a committee duly
designated by the board of directors (in which designation directors who
are parties may participate), consisting solely of two or more directors
not at the time parties to the proceeding; (3) by special legal counsel:
(a) selected by the board of directors of its committee in the manner
prescribed in paragraph (1) or (2) of this subsection; or (b) if a quorum
of the board of directors cannot be obtained under paragraph (1) of this
subsection and a committee cannot be designated under paragraph (2) of this
subsection, selected by majority vote of the full board of directors (in
which selection directors who are parties may participate); or (4) by the
shareholders, but shares owned by or voted under the control of directors
who are at the time parties to the proceeding may not be voted on the
determination; (5) authorization of indemnification or an obligation to
indemnify and evaluation as to reasonableness or expenses shall be made in
the same manner as the determination that indemnification is permissible;
except that if the determination is made by special legal counsel,
authorization or indemnification and evaluation as to reasonableness of
expenses shall be made by those entitled under paragraph (3) above to
select counsel.
(e) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding only if:
(i) The director furnishes the corporation a written affirmation
of his good faith belief that his conduct does not constitute
behavior of the kind described in subsection (b) of this Code
section; and
(ii) The director furnishes the corporation a written undertaking,
executed personally or on his behalf, to repay any advances if
it is ultimately determined that he is not entitled to
indemnification under this Code section.
(f) If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the
shareholders or by an insurance carrier pursuant to insurance maintained by
the corporation, the corporation shall, not later than the next annual
meeting of the shareholders, unless such meeting is held within three (3)
months from the date of such payment, and, in any event, within fifteen
(15) months from the date of such payment, send (by personal delivery or
first class mail, or such other means as is authorized by O.C.G.A. Section
14-2-113) to its shareholders of record at the time entitled to vote for
the election of directors, a statement specifying the persons paid, the
amounts paid, and the nature and status at the time of such payment of the
litigation or threatened litigation.
(g) For purposes of this Article, reference to "the corporation"
shall be as defined in Section 14-2-850 O.C.G.A.
(h) The indemnification and advancement of expenses provided by or
granted pursuant to this Article shall, unless otherwise provided when a
director's term is terminated, continue as to a person who has ceased to be
a director, and shall inure to the benefit of the heirs, executors and
administrator of such a person.
Item 16. Exhibits.
1(a) Form of Underwriting Agreement for Debt Securities
1(b) Form of Underwriting Agreement for Common Stock
1(c) Form of Underwriting Agreement for Common Stock Warrants*
1(d) Form of Underwriting Agreement for Preferred Stock
1(e) Form of Underwriting Agreement for Depositary Shares*
4(a) Articles of Incorporation (filed as Exhibit 3(i) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1993
and incorporated by reference herein)
4(b) Articles of Amendment to Articles of Incorporation (filed as
Exhibit 1 to the Company's Current Report on Form 8-K/A filed
January 24, 1995 amending the Company's current report on Form 8-
K filed on November 3, 1994, and incorporated by reference
herein)
4(c) Bylaws (filed as Exhibit 3(ii) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1993 and incorporated
by reference herein)
4(d) Form of Senior Indenture (Form of Senior Security included
therein)**
4(e) Form of Subordinate Indenture (Form of Subordinate Security
included therein)**
4(f) Form of Common Stock Certificate
4(g) Form of Preferred Stock Certificate*
4(h) Form of Common Stock Warrant Agreement
4(i) Form of Deposit Agreement
5 Opinion of Hull, Towill, Norman & Barrett, P.C. as to the
legality of the Offered Securities
12(a) Compuation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Combined Fixed Charges and Preferred Dividends
23(a) Consent of Hull, Towill, Norman & Barrett, P.C. (included in
Exhibit 5)
23(b) Consent of Arthur Andersen LLP
25(a) Statement of Eligibility and Qualification of Senior Trustee on
Form T-1**
25(b) Statement of Eligibility and Qualification of Subordinate Trustee
on Form T-1**
- ---------
* To be incorporated by reference in connection with the offering of
Offered Securities.
** To Be Filed.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to this
registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus
any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement; provided, however, that
the undertakings set forth in subparagraphs (i) and (ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amend-
ment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the provisions referred to under Item
15 hereof, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling person of the Registrant in
the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application
for purposes of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Augusta, State of Georgia, on
January 25, 1995.
Merry Land & Investment
Company, Inc.
By: /S/
-----------------------
As Its President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed, by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board and
/S/ Chief Executive Officer January 25, 1995
- -------------------------
Peter S. Knox III
President and
/S/ Chief Financial Officer January 25, 1995
- -------------------------
W. Tennent Houston
/S/ Secretary and Director January 25, 1995
- -------------------------
W. Hale Barrett
/S/ Director January 25, 1995
- -------------------------
Pierce Merry, Jr.
/S/ Director January 25, 1995
- -------------------------
Hugh Calvin Long II
/S/ Controller January 25, 1995
- -------------------------
Ronald J. Benton
Merry Land & Investment Company, Inc.
Debt Securities
UNDERWRITING AGREEMENT
---------------------
, 199__
ALEX. BROWN & SONS INCORPORATED
- -------------------------------
- -------------------------------
As Representatives of the Several Underwriters
c/o Alex. Brown & Sons Incorporated
135 East Baltimore Street
Baltimore, Maryland 21202
Gentlemen:
Merry Land & Investment Company, Inc., a Georgia corporation (the
"Company"), proposes to sell to the several underwriters (the
"Underwriters") named in Schedule I hereto for whom you are acting as
representatives (the "Representatives") an aggregate of $________________
principal amount of its [senior] [subordinate] debt securities (the "Firm
Securities"), to be issued pursuant to the provisions of an indenture dated
as of ______________, 199_ (the "Indenture") between the Company and
_______________ as trustee (the "Trustee"). The respective principal
amounts of the Firm Securities to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The
Company also proposes to sell at the Underwriters' option an aggregate of
up to $____________ additional principal amount of [senior] [subordinate]
debt securities (the "Option Securities") as set forth below.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are willing, acting
severally and not jointly, to purchase the Firm Securities set forth
opposite their respective names in Schedule I, plus their pro rata portion
of the Option Securities if you elect to exercise the over-allotment option
in whole or in part for the accounts of the several Underwriters. The Firm
Securities and the Option Securities (to the extent the aforementioned
option is exercised) are herein collectively called the "Securities."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the
parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as follows:
a. A registration statement on Form S-3 (File No. 33-_____)
with respect to the Securities has been carefully prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and has been filed with the Commission under the Act. The
Company has complied with the conditions for the use of Form S-3. Copies
of such registration statement, including any amendments thereto, the
preliminary prospectuses contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have heretofore
been delivered by the Company to you. Such registration statement, herein
referred to as the "Registration Statement," has been declared effective by
the Commission under the Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this Agreement.
The form of prospectus first filed by the Company with the Commission
pursuant to its Rule 424(b) is herein referred to as the "Prospectus."
Each preliminary prospectus included in the Registration Statement prior to
the time it becomes effective is herein referred to as a "Preliminary
Prospectus." Any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, as of the date of
such Registration Statement, Preliminary Prospectus or Prospectus, as the
case may be, and, in the case of any reference herein to any Prospectus,
also shall be deemed to include any documents incorporated by reference
therein, and any supplements or amendments relating to the Securities being
issued and sold pursuant hereto, filed with the Commission after the date
of filing of the Prospectus under Rule 424(b), and prior to the termination
of the offering of the Securities by the Underwriters.
b. 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 corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. The
Company is duly qualified to transact business in all jurisdictions in
which the conduct of its business requires such qualification. Except for
investments in securities as described in the Registration Statement, the
Company has no equity or other interest in, or right to acquire, an equity
or other interest in, any corporation, partnership, trust or other entity.
c. The Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Prospectus; the
outstanding shares of Common Stock and Preferred Stock of the Company have
been duly authorized and validly issued and are fully paid and non-
assessable.
d. The Securities have been duly and validly authorized and,
when issued, authenticated and delivered against payment therefor as
provided herein and in the Indenture, will be duly and validly issued and
fully paid and non-assessable, will conform to the description of the
Securities contained in the Prospectus and will constitute valid and
legally binding obligations of the Company; if applicable, the shares of
Common Stock or Preferred Stock issuable upon conversion of the Securities
have been duly and validly authorized and reserved for issuance and, when
issued and delivered in accordance with the terms of the Indenture with
respect to the Securities, will be duly and validly issued, fully paid and
non-assessable and will conform to the description thereof contained in the
Prospectus; the holders of outstanding capital stock of the Company are not
entitled to preemptive or other rights afforded by the Company to subscribe
for the Securities or the shares of Common Stock or Preferred Stock
issuable upon conversion of the Securities.
e. The issue and sale of the Securities and the shares of
Common Stock or Preferred Stock issuable upon conversion of the Securities
by the Company and the compliance by the Company with all of the provisions
of the Indenture with respect to the Securities and provisions of this
Agreement and the Indenture and the consummation of the transactions herein
and therein contemplated, including the conversion of the Securities into
shares of Common Stock or Preferred Stock, 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 indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the property or assets
of the Company is subject except for any such conflict, breach or violation
which does not have a material adverse effect on the Company, nor will such
action result in any violation of the provisions of the Articles of
Incorporation or By-Laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Securities and the shares of Common Stock or Preferred Stock
issuable upon conversion of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement, except, if
applicable, the filing of the Articles of Amendment with the Secretary of
State of Georgia and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters.
f. The Commission has not issued an order preventing or
suspending the use of any Prospectus or Preliminary Prospectus relating to
the proposed offering of the Securities nor instituted proceedings for that
purpose. The Registration Statement contains and the Prospectus and any
amendments or supplements thereto will contain all statements which are
required to be stated therein by, and in all respects conform or will
conform, as the case may be, to the requirements of, the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Rules and Regulations of the Commission promulgated under the Act and the
Trust Indenture Act. The documents incorporated by reference in the
Prospectus, at the time they were filed or will be filed with the
Commission, conformed or will conform at the time of filing, in all
respects to the requirements of the Securities Exchange Act of 1934, the
Act or the Trust Indenture Act, as applicable, and the Rules and
Regulations of the Commission thereunder. The Indenture, including any
amendments and supplements thereto, conforms with the requirements of the
Trust Indenture Act and the Rules and Regulations of the Commission
promulgated thereunder, and the Indenture has been qualified under the
Trust Indenture Act. Neither the Registration Statement nor any amendment
thereto, and neither the Prospectus nor any supplement thereto, including
any documents incorporated by reference therein, contains or will contain,
as the case may be, any untrue statement of a material fact or omits or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to information contained
in or omitted from the Registration Statement or the Prospectus, or any
such amendment or supplement, or any documents incorporated by reference
therein, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives, specifically for use in the preparation thereof or to that
part of the Registration Statement which shall constitute the Statements of
Eligibility and Qualification under the Trust Indenture Act (Form T-1) of
the Trustee under the Indenture.
g. The financial statements of the Company, together with
related notes and schedules as set forth or incorporated by reference in
the Registration Statement, present fairly the financial position and the
results of operations of the Company at the indicated dates and for the
indicated periods. The financial statements with respect to the properties
acquired or to be acquired by the Company, together with related notes and
schedules as set forth or incorporated by reference in the Registration
Statement, present fairly the financial position and the results of
operations of such properties 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 or incorporated by reference in the
Registration Statement presents fairly the information shown therein and
have been compiled on a basis consistent with the financial statements
presented therein.
h. The Pro Forma Financial Statements of the Company included
in the Prospectus and incorporated by reference in the Registration
Statement have been prepared in conformity with the requirements of Article
11 of Regulation S-X.
i. This Agreement and the Indenture have been duly and validly
authorized, executed and delivered by the Company; this Agreement, the
Indenture and the Securities issued under the Indenture constitute the
valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms. The Securities and the Indenture
conform in all material respects to the statements relating thereto
contained in the Prospectus; and the Securities will be entitled to the
benefits provided by the Indenture.
j. There is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company before any court
or administrative agency or by any regulatory authority which might result
in any material adverse change in the business or condition of the Company,
except as set forth in the Registration Statement.
k. The Company has good and marketable title to all of the
properties and assets reflected in the financial statements (or as
described in the Registration Statement) hereinabove described, subject to
no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration
Statement) or which are not material in amount. The Company occupies its
leased properties under valid and binding leases conforming to the
description thereof set forth in the Registration Statement.
l. The Company has filed all Federal, State and foreign income
tax returns which have been required to be filed and have paid all taxes
indicated by said returns and all assessments received by them or any of
them to the extent that such taxes have become due and are not being
contested in good faith.
m. Since the respective dates as of which information is given
in the Registration Statement, as it may be amended or supplemented, there
has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the condition,
financial or otherwise, of the Company or the earnings, business affairs,
management, or business prospects of the Company, whether or not occurring
in the ordinary course of business, and there has not been any material
transaction entered into by the Company other than transactions in the
ordinary course of business and changes and transactions contemplated by
the Registration Statement, as it may be amended or supplemented. The
Company has no material contingent obligations which are not disclosed in
the Registration Statement, as it may be amended or supplemented.
n. The Company is not in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a
party or by which it or any of its properties is bound and which default is
of material significance in respect of the business or financial condition
of the Company. The consummation of the transactions contemplated by this
Agreement and the Indenture and the fulfillment of the terms hereof and
thereof will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is a party,
or of the Charter or by-laws of the Company or any order, rule or
regulation applicable to the Company of any court or of any regulatory body
or administrative agency or other governmental body having jurisdiction.
o. Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the Indenture and the consummation of
the transactions herein and therein contemplated (except such additional
steps as may be required by the National Association of Securities Dealers,
Inc. (the "NASD") or may be necessary to qualify the Securities for public
offering by the Underwriters under State securities or Blue Sky laws) has
been obtained or made and is in full force and effect.
p. The Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of
its business; and the Company has not infringed any patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to
the business of the Company.
q. Arthur Andersen & Company, who have certified certain of the
financial statements filed with the Commission as part of, or incorporated
by reference in, the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
r. The Company has never been, is not now, and immediately
after the sale of the Securities under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
s. 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, as amended,
and the Company's present and contemplated operations, assets and income
continue to meet such requirements.
t. The conditions for the use of a registration statement 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 transactions
contemplated herein.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SECURITIES. On the basis
of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to
the Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of __% of the principal amount, the principal amount
of Firm Securities set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with Section 9
hereof.
Payment for the Firm Securities to be sold hereunder is to be made in
New York Clearing House funds by certified or bank cashier's checks drawn
to the order of the Company against delivery of certificates therefor to
the Representatives for the several accounts of the Underwriters. Such
payment and delivery are to be made at the offices of Alex. Brown & Sons
Incorporated, 135 East Baltimore Street, Baltimore, Maryland, at 10:00
A.M., Baltimore time, on the fifth business day after the date of this
Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date
being herein referred to as the "Closing Date." (As used herein, "business
day" means a day on which the New York Stock Exchange is open for trading
and on which banks in New York are open for business and are not permitted
by law or executive order to be closed.) The certificates for the Firm
Securities will be delivered in such denominations and in such
registrations as the Representatives request in writing not later than the
third full business day prior to the Closing Date, and will be made
available for inspection by the Representatives at least one business day
prior to the Closing Date.
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 several Underwriters to purchase the
Option Securities at the same percentage of the principal amount as set
forth in the first paragraph of this Section 2. The option granted hereby
may be exercised in whole or in part but only once and at any time upon
written notice given within 30 days after the date of this Agreement, by
you, as Representatives of the several Underwriters, to the Company setting
forth the principal amount of Option Securities as to which the several
Underwriters are exercising the option, the names and denominations in
which the Option Securities are to be registered and the time and date at
which such certificates are to be delivered. The time and date at which
certificates for Option Securities are to be delivered shall be determined
by the Representatives but shall not be earlier than three nor later than
10 full business days after the exercise of such option, nor in any event
prior to the Closing Date (such time and date being herein referred to as
the "Option Closing Date"). If the date of exercise of the option is three
or more days before the Closing Date, the notice of exercise shall set the
Closing Date as the Option Closing Date. The principal amount of Option
Securities to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Securities being purchased as the
number of Firm Securities being purchased by such Underwriter bears to
$_______________, adjusted by you in such manner as to avoid fractional
Securities. The option with respect to the Option Securities granted
hereunder may be exercised only to cover over-allotments in the sale of the
Firm Securities by the Underwriters. You, as Representatives of the
several Underwriters, may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the Company.
To the extent, if any, that the option is exercised, payment for the Option
Securities shall be made on the Option Closing Date in New York Clearing
House funds by certified or bank cashier's check drawn to the order of the
Company against delivery of certificates therefor at the offices of Alex.
Brown & Sons Incorporated, 135 East Baltimore Street, Baltimore, Maryland.
3. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters are to make a public offering of the Firm Securities as soon
as the Representatives deem it advisable to do so. The Firm Securities are
to be initially offered to the public at the initial public offering price
set forth in the Prospectus. The Representatives may from time to time
thereafter change the public offering price and other selling terms. To
the extent, if at all, that any Option Securities are purchased pursuant to
Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Securities in accordance
with a Master Agreement Among Underwriters entered into by you and the
several other Underwriters.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
the several Underwriters that:
a. The Company will (i) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus
containing information previously omitted at the time of effectiveness of
the Registration Statement in reliance on Rule 430A of the Rules and
Regulations, (ii) not file any amendment to the Registration Statement or
supplement to the Prospectus or document incorporated by reference therein
of which the Representatives shall not previously have been advised and
furnished with a copy or to which the Representatives shall have reasonably
objected in writing or which is not in compliance with the Rules and
Regulations and (iii) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of the Securities by the Underwriters.
b. The Company will advise the Representatives promptly of any
request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, or of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus or
of the institution of any proceedings for that purpose, and the Company
will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
(c) The Company will cooperate with the Representatives in
endeavoring to qualify the Securities for sale under the securities laws of
such jurisdictions as the Representatives may reasonably have designated in
writing and will make such applications, file such documents, and furnish
such information as may be reasonably required for that purpose, provided
the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where it
is not now so qualified or required to file such a consent. The Company
will, from time to time, prepare and file such statements, reports, and
other documents, as are or may be required to continue such qualifications
in effect for so long a period as the Representatives may reasonably
request for distribution of the Securities.
c. The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company will
deliver to, or upon the order of, the Representatives during the period
when delivery of a Prospectus is required under the Act, as many copies of
the Prospectus in final form, or as thereafter amended or supplemented, as
the Representatives may reasonably request. The Company will deliver to
the Representatives at or before the Closing Date, four signed copies of
the Registration Statement and all amendments thereto including all
exhibits filed therewith, and will deliver to the Representatives such
number of copies of the Registration Statement, including documents
incorporated by reference therein, but without exhibits, and of all
amendments thereto, as the Representatives may reasonably request.
d. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer any event shall occur as a
result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly will
either (i) prepare and file with the Commission an appropriate amendment to
the Registration Statement or supplement to the Prospectus or (ii) prepare
and file with the Commission an appropriate filing under the Securities
Exchange Act of 1934 which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not,
in the light of the circumstances when it is so delivered, be misleading,
or so that the Prospectus will comply with law.
e. The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later
than 15 months after the effective date of the Registration Statement, an
earning statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earning statement shall
satisfy the requirements of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations and will advise you in writing when such statement
has been so made available.
f. The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual reports and
copies of all other documents, reports and information furnished by the
Company to its stockholders or filed with any securities exchange pursuant
to the requirements of such exchange or with the Commission pursuant to the
Act or the Securities Exchange Act of 1934, as amended. The Company will
deliver to the Representatives similar reports with respect to significant
subsidiaries, as that term is defined in the Rules and Regulations, which
are not consolidated in the Company's financial statements.
g. No offering, sale or other disposition of any debt security
of the Company with maturities longer than one year will be made for a
period of 90 days after the date of this Agreement, directly or indirectly,
by the Company otherwise than hereunder or with the prior written consent
of the Representatives.
h. If applicable, the Company will reserve and keep available
at all times, free of preemptive rights, shares of Common Stock or
Preferred Stock for the purpose of enabling the Company to satisfy any
obligations to issue shares of its Common Stock or Preferred Stock upon
conversion of the Securities.
i. If applicable, the Company will take any action reasonably
necessary to ensure that any shares of Common Stock or Preferred Stock
issued upon the conversion or redemption of the Securities are (i) freely
transferable and not subject to any resale restrictions under the Act or
any applicable state securities or blue sky laws (other than any shares of
Common Stock or Preferred Stock issued upon conversion or redemption of any
Securities which are held by an "affiliate" (as defined in Rule 144 under
the Act) of the Company) and (ii) duly and validly authorized, fully paid
and nonassessable.
j. If applicable, the Company will use all reasonable efforts
to list or maintain the listing of the shares of Common Stock or Preferred
Stock issuable upon such conversion or redemption on the New York Stock
Exchange.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and
fees incident to the performance of the obligations of the Company under
this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the
Registration Statement, Preliminary Prospectuses, the Prospectus, the
Indenture, this Agreement, the Agreement Among Underwriters, the
Underwriters' Selling Memorandum, the Underwriters' Questionnaire, the
Invitation Letter, the Blue Sky Survey and any supplements or amendments
thereto; the filing fees of the Commission; the filing fees and expenses
incident to securing any required review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities; the fees and expenses of any trustee and any agent of any
trustee and the fees and disbursements of counsel for any trustee in
connection with the Indenture and the Securities; and the expenses,
including the fees and disbursements of counsel for the Underwriters,
incurred in connection with the qualification of the Securities or, if
applicable, any shares of Common Stock or Preferred Stock issued upon
conversion or redemption of the Securities under State securities or Blue
Sky laws. The Company shall not, however, be required to pay for any of
the Underwriters' expenses (other than those related to qualification under
State securities or Blue Sky laws) except that, if this Agreement shall not
be consummated because the conditions in Section 7 hereof are not
satisfied, or because this Agreement is terminated by the Representatives
pursuant to Section 6 hereof, or by reason of any failure, refusal or
inability on the part of the Company to perform any undertaking or satisfy
any condition of this Agreement or to comply with any of the terms hereof
on its part to be performed, unless such failure to satisfy said condition
or to compl with said terms be due to the default or omission of any
Underwriter, then the Company shall reimburse the several Underwriters for
reasonable out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred in connection with investigating, marketing
and proposing to market the Securities or in contemplation of performing
their obligations hereunder; but the Company shall not in any event be
liable to any of the several Underwriters for damages on account of loss of
anticipated profits from the sale by them of the Securities.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters to purchase the Firm Securities on the
Closing Date and the Option Securities, if any, on the Option Closing Date
are subject to the accuracy, as of the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the
Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder and to the following additional
conditions:
a. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission.
b. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Hull,
Towill, Norman & Barrett, P.C., counsel for the Company, dated the Closing
Date or the Option Closing Date, as the case may be, addressed to the
Underwriters to the effect that:
i. 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 corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; the Company is duly qualified to transact business in
all jurisdictions in which the conduct of its business requires
such qualification, or in which the failure to qualify would have
a materially adverse effect upon the business of the Company.
ii. The Securities have been duly authorized, and when
executed and authenticated in accordance with the provisions of
the Indenture and delivered to the Underwriters against payment
therefor as provided by this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their
terms, except that the enforceability thereof may be limited by
or subject to (a) bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws now or
hereafter existing which affect the rights and remedies of
creditors generally and (b) equitable principles of general
applicability.
iii. The Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and delivered
by the Company, and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except that the
enforceability thereof may be limited by or subject to (a)
bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or other similar laws now or hereafter existing which
affect the rights and remedies of creditors generally and (b)
equitable principles of general applicability.
iv. The Company has authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the
Prospectus; the authorized Securities of its Common Stock and
Preferred Stock have been duly authorized; the outstanding
shares of its Common Stock and Preferred Stock have been duly
authorized and validly issued and are fully paid and non-
assessable; the Securities, the shares of Common Stock or
Preferred Stock issuable upon conversion or redemption of the
Securities, if any, and the Indenture conform to the
descriptions thereof contained in the Prospectus; and the
certificates for the Securities are in due and proper form.
v. The shares of Common Stock or Preferred Stock
issuable upon conversion of the Securities have been duly and
validly authorized and reserved for issuance and, when issued
and delivered in accordance with the terms of the Securities,
will be duly and validly issued, fully paid and non-assessable
and will conform to the description thereof contained in the
Prospectus; the holders of outstanding capital stock of the
Company are not entitled to preemptive or other rights
afforded by the Company to subscribe for the Securities or the
shares of Common Stock or Preferred Stock issuable upon
conversion of the Securities.
vi. The Registration Statement has become effective
under the 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 Act.
vii. The Registration Statement, all Preliminary
Prospectuses, the Prospectus and each amendment or supplement
thereto and document incorporated by reference therein comply
as to form in all material respects with the requirements of
the Act, the Trust Indenture Act, or the Securities Exchange
Act of 1934, as applicable, and the applicable rules and
regulations thereunder (except that such counsel need express
no opinion as to the financial statements, schedules and other
financial information included or incorporated by reference
therein or with respect to the Statement of Eligibility and
Qualification of the Trustee).
viii. The statements under the captions
"_______________," "_______________," "_______________," and
"_______________" in the Prospectus, insofar as such
statements constitute a summary of documents referred to
therein or matters of law, are accurate summaries and fairly
and correctly present the information called for with respect
to such documents and matters.
ix. Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated
by reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so
filed, incorporated by reference or described as required, and
such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized
in all material respects.
x. Such counsel knows of no material legal proceedings
or regulatory or other claims pending or threatened against
the Company except as set forth in the Prospectus.
xi. The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions
contemplated herein and therein do not and will not conflict
with or result in a breach of any of the terms or provisions
of, or constitute a default under, the Charter or by-laws of
the Company, or any agreement or instrument known to such
counsel to which the Company is a party or by which the
Company may be bound.
xii. This Agreement has been duly authorized, executed
and delivered by the Company.
xiii. No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement
or the Indenture and the consummation of the transactions
contemplated herein or therein (other than as may be required
by the National Association of Securities Dealers, Inc. or as
required by State securities and Blue Sky laws as to which
such counsel need express no opinion) except such as have been
obtained or made, specifying the same.
xiv. The Company is not, and will not become as a result
of the consummation of the transactions contemplated by this
Agreement, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and has not been
an "investment company" at any time since 1988.
In rendering such opinion, Hull, Towill, Norman & Barrett, P.C. may
rely as to matters governed by the laws of states other than Georgia or
Federal laws on local counsel in such jurisdictions provided that in
each case Hull, Towill, Norman & Barrett, P.C. shall state that they
believe that they and the Underwriters are justified in relying on such
other counsel and such other counsel's opinion is also addressed to the
Underwriters. 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
Act, the Prospectus or any amendment or supplement thereto, on the date
it was filed pursuant to Rule 424(b) or any of the documents
incorporated by reference therein, as of the date of effectiveness of
the Registration Statement or, in the case of documents incorporated by
reference in the Prospectus after the date of effectiveness of the
Registration Statement, as of the respective dates when such documents
were filed with the Commission and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, as of the Closing
Date or the Option Closing Date, as the case may be, 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 (except that such counsel need express no view as to
financial statements, schedules and other financial information included
or incorporated by reference therein or with respect to the Statements
of Eligibility and Qualification of the Trustee). With respect to such
statement, Hull, Towill, Norman & Barrett, P.C. may state that their
belief is based upon the procedures set forth therein, but is without
independent check and verification.
c. The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of
Hull, Towill, Norman & Barrett, P.C., tax counsel for the Company, dated
the Closing Date or the Option Closing Date, as the case may be,
addressed to the Underwriters to the effect that:
i. The Company met the requirements for qualification
and taxation as a real estate investment trust ("REIT") for
the taxable years 1987, 1988, 1989, 1990, 1991, 1992, 1993 and
1994 subject to the qualification noted in subparagraph (ii)
below.
ii. There is an issue as to whether the Company
satisfied the 95%-distribution requirement of Section
857(a)(1) of the Code with respect to the taxable year 1989.
We believe, however, that if the Internal Revenue Service were
to assert successfully that the Company did not meet the 95%-
distribution requirement on the basis of the foregoing issue,
the Company nevertheless would be entitled to use the
deficiency dividend procedures of Section 860 of the Code to
preserve its status as a qualified REIT for 1989 and
subsequent taxable years by paying deficiency dividends to its
shareholders sufficient to meet the 95%-distribution
requirement and by otherwise complying with the requirements
of Section 860 of the Code.
iii. The Company's diversity of stock ownership and
proposed method of operation should allow it to qualify as a
REIT for 1995.
iv. The discussion contained under the caption
"Taxation" in the Prospectus forming a part of the
Registration Statement, as of the time the Registration
Statement became effective under the Act and as of the Closing
Date or the Option Closing Date, as the case may be,
accurately reflects existing law and fairly addresses the
material federal income tax issues described therein that
would affect an investment in the Firm Securities or Option
Securities, as the case may be.
In rendering such opinions, Hull, Towill, Norman & Barrett, P.C.
may rely as to matters of fact, to the extent they deem proper, on
certificates of officers of the Company and public officials so long as
such counsel states that no facts have come to the attention of such
counsel which lead them to believe that they are not justified in
relying on such certificates. In addition, Hull, Towill, Norman &
Barrett, P.C. may state that their opinions are based upon the
procedures and assumptions set forth in such opinion letter and that it
is limited to the tax matters specifically covered thereby and that they
have not addressed any other tax consequences of an investment in the
Firm Securities or Option Securities, as the case may be.
d. The Representatives shall have received from Piper &
Marbury, counsel for the Underwriters, an opinion dated the Closing Date
or the Option Closing Date, as the case may be, substantially to the
effect specified in subparagraphs (ii), (vi), (viii) and (xiii) of
Paragraph (b) of this Section 6, and that the Company is a validly
organized and existing corporation under the laws of the State of
Georgia. In rendering such opinion Piper & Marbury may rely as to all
matters governed other than by the laws of the State of Maryland or
Federal laws on the opinion of counsel referred to in paragraph (b) of
this Section 6. 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
Act, and the Prospectus or any amendment or supplement thereto, on the
date it was filed pursuant to Rule 424(b) or any of the documents
incorporated by reference therein, as of the date of effectiveness of
the Registration Statement or, in the case of documents incorporated by
reference in the Prospectus after the date of effectiveness of the
Registration Statement, as of the respective dates when such documents
were filed with the Commission and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, as of the Closing
Date or the Option Closing Date, as the case may be, 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 (except that such counsel need express no view as to
financial statements, schedules and other financial information included
or incorporated by reference therein). With respect to such statement,
Piper & Marbury may state that their belief is based upon the procedures
set forth therein, but is without independent check and verification.
e. The Representatives shall have received at or prior to
the Closing Date from Piper & Marbury a memorandum or summary, in form
and substance satisfactory to the Representatives, with respect to the
qualification for offering and sale by the Underwriters of the
Securities under the State securities or Blue Sky laws of such
jurisdictions as the Representatives may reasonably have designated to
the Company.
f. The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a signed letter
from Arthur Andersen & Co., dated the Closing Date or the Option Closing
Date, as the case may be, which shall confirm, on the basis of a review
in accordance with the procedures set forth in the letter signed by such
firm and dated and delivered to the Representatives on the date hereof
that nothing has come to their attention during the period from the date
five days prior to the date hereof, to a date not more than five days
prior to the Closing Date or the Option Closing Date, as the case may
be, which would require any change in their letter dated the date hereof
if it were required to be dated and delivered on the Closing Date or the
Option Closing Date, as the case may be. All such letters shall be in
form and substance satisfactory to the Representatives.
g. The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial
Officer of the Company to the effect that, as of the Closing Date or the
Option Closing Date, as the case may be, each of them severally
represents as follows:
i. The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceedings for such purpose have been taken or are, to his
knowledge, contemplated by the Commission.
ii. He does not know of any litigation instituted or
threatened against the Company of a character required to be
disclosed in the Registration Statement which is not so
disclosed; he does not know of any material contract required
to be filed as an exhibit to the Registration Statement which
is not so filed; and the representations and warranties of the
Company contained in Section 1 hereof are true and correct as
of the Closing Date or the Option Closing Date, as the case
may be.
iii. He has carefully examined the Registration Statement
and the Prospectus and, in his opinion, as of the effective
date of the Registration Statement, the statements contained
in the Registration Statement, including any document
incorporated by reference therein, were true and correct, and
such Registration Statement and Prospectus or any document
incorporated by reference therein did not omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in
his opinion, since the effective date of the Registration
Statement, no event has occurred which should have been set
forth in a supplement to or an amendment of the Prospectus
which has not been so set forth in such supplement or
amendment.
h. The Company shall have furnished to the Representatives
such further certificates and documents confirming the representations
and warranties contained herein and related matters as the
Representatives may reasonably have requested.
i. The Firm Securities, and Option Securities, if any, and
the Common Stock and Preferred Stock issuable upon conversion of the
Firm Securities and Option Securities, if any, have been approved for
listing upon official notice of issuance on the New York Stock Exchange.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representatives and to
Piper & Marbury, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to
be fulfilled, the obligations of the Underwriters hereunder may be
terminated by the Representatives by notifying the Company of such
termination in writing or by telegram at or prior to the Closing Date or
the Option Closing Date, as the case may be.
In such event, the Company and the Underwriters shall not be under
any obligation to each other (except to the extent provided in Sections
5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations
of the Company to sell and deliver the portion of the Securities
required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing
Date, as the case may be, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and in effect or
proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
a. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act against any losses, claims, damages or
liabilities to which such Underwriter or such controlling person may
become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained or incorporated
by reference in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto, or (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability,
action or proceeding; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company
by or through the Representatives specifically for use in the
preparation thereof or made in reliance upon the Trustee's Statements of
Eligibility and Qualification filed as an exhibit to the Registration
Statement. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
b. Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
and will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which such Underwriter
may otherwise have.
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 this Section 8, such person
(the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available
to any party who shall fail to give notice as provided in this Section
8(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by
the failure to give such notice, but the failure to give such notice
shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a) or (b). In
case any such proceeding shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party and shall pay as incurred 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 at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and
expenses of the counsel retained by the indemnified party in the event
(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 beween them. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in
the case of parties indemnified pursuant to Section 8(a) and by the
Company in the case of parties indemnified pursuant to Section 8(b).
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.
d. If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to
give the notice required under Section 8(c) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof),
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 shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault 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 on the one hand or the Underwriterson the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) 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
which does not take account of the equitable considerations referred to
above in this Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
above in this Section 8(d) shall be deemed to include 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 subsection (d), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Securities
purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
e. In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom contribution may be sought
under this Section 8 hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that
process issuing from such court may be served upon him or it by any
other contributing party and consents to the service of such process and
agrees that any other contributing party may join him or it as an
additional defendant in any such proceeding in which such other
contributing party is a party.
9. DEFAULT BY UNDERWRITERS. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to purchase
and pay for the portion of the Securities which such Underwriter has
agreed to purchase and pay for on such date (otherwise than by reason of
any default on the part of the Company, you, as Representatives of the
Underwriters, shall use your best efforts to procure within 24 hours
thereafter one or more of the other Underwriters, or any others, to
purchase from the Company such amounts as may be agreed upon and upon
the terms set forth herein, the Firm Securities or Option Securities, as
the case may be, which the defaulting Underwriter or Underwriters failed
to purchase. If during such 24 hours you, as such Representatives,
shall not have procured such other Underwriters, or any others, to
purchase the Firm Securities or Option Securities, as the case may be,
agreed to be purchased by the defaulting Underwriter or Underwriters,
then (a) if the aggregate principal amount of Securities with respect to
which such default shall occur does not exceed 10% of the Firm
Securities or Option Securities, as the case may be, covered hereby, the
other Underwriters shall be obligated, severally, in proportion to the
respective principal amounts of Firm Securities or Option Securities, as
the case may be, which they are obligated to purchase hereunder, to
purchase the Firm Securities or Option Securities, as the case may be,
which such defaulting Underwriter or Underwriters failed to purchase, or
(b) if the aggregate principal amount of Firm Securities or Option
Securities, as the case may be, with respect to which such default shall
occur exceeds 10% of the aggregate principal amount of Firm Securities
or Option Securities, as the case may be, covered hereby, the Company or
you as the Representatives of the Underwriters will have the right, by
written notice given within the next 24-hour period to the parties to
this Agreement, to terminate this Agreement without liability on the
part of the non-defaulting Underwriters or of the Company except to the
extent provided in Section 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Closing
Date or Option Closing Date, as the case may be, may be postponed for
such period, not exceeding seven days, as you, as Representatives, may
determine in order that the required changes in the Registration
Statement or in the Prospectus or in any other documents or arrangements
may be effected. The term "Underwriter" includes any person substituted
for a defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. NOTICES. All communications hereunder shall be in writing
and, except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to Alex.
Brown & Sons Incorporated, 135 East Baltimore Street, Baltimore,
Maryland, Attention: William G. Byrnes, Managing Director; if to the
Company, to Merry Land & Investment Company, Inc., Attention: Peter S.
Knox, III, Chairman of the Board.
11. TERMINATION. This Agreement may be terminated by you by
notice to the Company as follows:
a. at any time prior to the earlier of (i) the time the
Securities are released by you for sale by notice to the Underwriters,
or (ii) 11:30 A.M. on the first business day following the date of this
Agreement;
b. at any time after the date hereof if any of the following
has occurred: (i) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of
the Company or the earnings, business affairs, management or business
prospects of the Company, whether or not arising in the ordinary course
of business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency after the date hereof or other
national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your reasonable judgment, make
the offering or delivery of the Securities impracticable or inadvisable,
(iii) trading in securities on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially limited
(other than limitations on hours or numbers of days of trading) or
minimum prices shall have been established for securities on either
such Exchange, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order
of any court or other governmental authority which in your reasonable
opinion materially and adversely affects or will materially or adversely
affect the business or operations of the Company, (v) declaration of a
banking moratorium by either federal or New York State authorities, (vi)
any downgrading in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Exchange Act of 1934, as
amended); (vii) the suspension of trading of the Company's Common Stock
or Series A Preferred Stock by the New York Stock Exchange; (viii) the
taking of any action by any govermental body or agency in respect of its
monetary or fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United States
or elsewhere, or (ix) any litigation or proceeding is pending or
threatened against the Underwriters which seeks to enjoin or otherwise
restrain, or seeks damages in connection with, or questions the legality
or validity of this Agreement or the transactions contemplated hereby;
or
c. as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option
Securities, upon the occurrence at any time prior to the Option Closing
Date of any of the events described in subparagraph (b) above or as
provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company and their respective
successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no
other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Securities merely
because of such purchase.
13. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the
representations, warranties and covenants in this Agreement shall remain
in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation made by or on behalf of any Underwriter
or controlling person thereof, or by or on behalf of the Company or its
directors or officers and (c) delivery of and payment for the Securities
under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Maryland.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates
hereof, whereupon it will become a binding agreement among the Company
and the several Underwriters in accordance with its terms.
Very truly yours,
MERRY LAND & INVESTMENT
COMPANY, INC.
By:____________________
Peter S. Knox III
Chairman
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
ALEX. BROWN & SONS INCORPORATED
- -------------------------------
- -------------------------------
As Representatives of the Several Underwriters
listed on Schedule I
By: ALEX. BROWN & SONS INCORPORATED
By: _______________________________
Authorized Officer
<PAGE>
SCHEDULE I
Schedule of Underwriters
Principal Amount of
Firm Shares
Underwriter to be Purchased
----------- -------------------
Alex. Brown & Sons Incorporated
Total. . . . . . . . . . . . . .
__________________ Shares
Merry Land & Investment Company, Inc.
Common Stock
(Without Par Value)
UNDERWRITING AGREEMENT
---------------------
, 199__
ALEX. BROWN & SONS INCORPORATED
- -------------------------------
- -------------------------------
As Representatives of the Several Underwriters
c/o Alex. Brown & Sons Incorporated
135 East Baltimore Street
Baltimore, Maryland 21202
Gentlemen:
Merry Land & Investment Company, Inc., a Georgia corporation (the
"Company"), proposes to sell to the several underwriters (the
"Underwriters") named in Schedule I hereto for whom you are acting as
representatives (the "Representatives") an aggregate of ________________
shares of the Company's Common Stock, without par value (the "Firm
Shares"). The respective amounts of the Firm Shares to be so purchased by
the several Underwriters are set forth opposite their names in Schedule I
hereto. The Company also proposes to sell at the Underwriters' option an
aggregate of up to ____________ additional shares of the Company's Common
Stock (the "Option Shares") as set forth below.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are willing, acting
severally and not jointly, to purchase the numbers of Firm Shares set forth
opposite their respective names in Schedule I, plus their pro rata portion
of the Option Shares if you elect to exercise the over-allotment option in
whole or in part for the accounts of the several Underwriters. The Firm
Shares and the Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the
parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
a. The Company represents and warrants as follows:
A registration statement on Form S-3 (File No. 33-_____) with respect
to the Shares has been carefully prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and
the Rules and Regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has been filed
with the Commission under the Act. The Company has complied with the
conditions for the use of Form S-3. Copies of such registration statement,
including any amendments thereto, the preliminary prospectuses contained
therein and the exhibits, financial statements and schedules, as finally
amended and revised, have heretofore been delivered by the Company to you.
Such registration statement, herein referred to as the "Registration
Statement," has been declared effective by the Commission under the Act and
no post-effective amendment to the Registration Statement has been filed as
of the date of this Agreement. The form of prospectus first filed by the
Company with the Commission pursuant to its Rule 424(b) is herein referred
to as the "Prospectus." Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective is herein
referred to as a "Preliminary Prospectus." Any reference herein to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein, as of the date of such Registration Statement, Preliminary
Prospectus or Prospectus, as the case may be, and, in the case of any
reference herein to any Prospectus, also shall be deemed to include any
documents incorporated by reference therein, and any supplements or
amendments relating to the Shares being issued and sold pursuant hereto,
filed with the Commission after the date of filing of the Prospectus under
Rules 424(b), and prior to the termination of the offering of the Shares by
the Underwriters.
b. 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 corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. The
Company is duly qualified to transact business in all jurisdictions in
which the conduct of its business requires such qualification. Except for
investments in securities as described in the Registration Statement, the
Company has no equity or other interest in, or right to acquire, an equity
or other interest in, any corporation, partnership, trust or other entity.
c. The outstanding shares of Common Stock and Preferred Stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable; the Shares to be issued and sold by the Company
have been duly authorized and when issued and paid for as contemplated
herein will be validly issued, fully-paid and non-assessable; and no
preemptive rights of stockholders exist with respect to any of the Shares
or the issue and sale thereof.
d. The Shares conform with the statements concerning them in
the Registration Statement.
e. The Commission has not issued an order preventing or
suspending the use of any Prospectus or Preliminary Prospectus relating to
the proposed offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement contains and the Prospectus and any
amendments or supplements thereto will contain all statements which are
required to be stated therein by, and in all respects conform or will
conform, as the case may be, to the requirements of, the Act and the Rules
and Regulations. The documents incorporated by reference in the
Prospectus, at the time they were filed or will be filed with the
Commission, conformed or will conform at the time of filing, in all
respects to the requirements of the Securities Exchange Act of 1934 or the
Act, as applicable, and the Rules and Regulations of the Commission
thereunder. Neither the Registration Statement nor any amendment thereto,
and neither the Prospectus nor any supplement thereto, including any
documents incorporated by reference therein, contains or will contain, as
the case may be, any untrue statement of a material fact or omits or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to information contained in or
omitted from the Registration Statement or the Prospectus, or any such
amendment or supplement, or any documents incorporated by reference
therein, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives, specifically for use in the preparation thereof.
f. The financial statements of the Company, together with
related notes and schedules as set forth or incorporated by reference in
the Registration Statement, present fairly the financial position and the
results of operations of the Company at the indicated dates and for the
indicated periods. The financial statements with respect to the properties
acquired or to be acquired by the Company, together with related notes and
schedules as set forth or incorporated by reference in the Registration
Statement, present fairly the financial position and the results of
operations of such properties 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 or incorporated by reference in the
Registration Statement presents fairly the information shown therein and
have been compiled on a basis consistent with the financial statements
presented therein.
g. The Pro Forma Financial Statements of the Company included
in the Prospectus and incorporated by reference in the Registration
Statement have been prepared in conformity with the requirements of Article
11 of Regulation S-X.
h. There is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company before any court
or administrative agency or by any regulatory authority which might result
in any material adverse change in the business or condition of the Company,
except as set forth in the Registration Statement.
i. The Company has good and marketable title to all of the
properties and assets reflected in the financial statements (or as
described in the Registration Statement) hereinabove described, subject to
no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration
Statement) or which are not material in amount. The Company occupies its
leased properties under valid and binding leases conforming to the
description thereof set forth in the Registration Statement.
j. The Company has filed all Federal, State and foreign income
tax returns which have been required to be filed and have paid all taxes
indicated by said returns and all assessments received by them or any of
them to the extent that such taxes have become due and are not being
contested in good faith.
k. Since the respective dates as of which information is given
in the Registration Statement, as it may be amended or supplemented, there
has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the condition,
financial or otherwise, of the Company or the earnings, business affairs,
management, or business prospects of the Company, whether or not occurring
in the ordinary course of business, and there has not been any material
transaction entered into by the Company other than transactions in the
ordinary course of business and changes and transactions contemplated by
the Registration Statement, as it may be amended or supplemented. The
Company has no material contingent obligations which are not disclosed in
the Registration Statement, as it may be amended or supplemented.
l. The Company is not in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a
party or by which it or any of its properties is bound and which default is
of material significance in respect of the business or financial condition
of the Company. The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party, or of the Articles of
Incorporation or by-laws of the Company or any order, rule or regulation
applicable to the Company of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
m. Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions
herein contemplated (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares for public offering by the Underwriters
under State securities or Blue Sky laws) has been obtained or made and is
in full force and effect.
n. The Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of
its business; and the Company has not infringed any patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to
the business of the Company.
o. Arthur Andersen LLP, who have certified certain of the
financial statements filed with the Commission as part of, or incorporated
by reference in, the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
p. The Company has never been, is not now, and immediately
after the sale of the Shares under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
q. 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, as amended,
and the Company's present and contemplated operations, assets and income
continue to meet such requirements.
r. The conditions for the use of a registration statement 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 transactions
contemplated herein.
s. The Company's Common Stock and Series A Cumulative
Convertible Preferred Stock are listed on the New York Stock Exchange, and
the Shares of the Company to be sold under this Agreement have been
approved for listing on the New York Stock Exchange.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES. On the basis of
the representations, warranties and covenants herein contained, and subject
to the conditions herein set forth, the Company agrees to sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $________ per share, the number of Firm Shares set
forth opposite the name of each Underwriter in Schedule I hereof, subject
to adjustments in accordance with Section 9 hereof.
Payment for the Firm Shares to be sold hereunder is to be made in New
York Clearing House funds by certified or bank cashier's checks drawn to
the order of the Company against delivery of certificates therefor to the
Representatives for the several accounts of the Underwriters. Such payment
and delivery are to be made at the offices of Alex. Brown & Sons
Incorporated, 135 East Baltimore Street, Baltimore, Maryland, at 10:00
A.M., Baltimore time, on the fifth business day after the date of this
Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date
being herein referred to as the "Closing Date." (As used herein, "business
day" means a day on which the New York Stock Exchange is open for trading
and on which banks in ________________ are open for business and are not
permitted by law or executive order to be closed.) The certificates for
the Firm Shares will be delivered in such denominations and in such
registrations as the Representatives request in writing not later than the
third full business day prior to the Closing Date, and will be made
available for inspection by the Representatives at least one business day
prior to the Closing Date.
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 several Underwriters to purchase the
Option Shares at the price per share as set forth in the first paragraph of
this Section 2. The option granted hereby may be exercised in whole or in
part but only once and at any time upon written notice given within 30 days
after the date of this Agreement, by you, as Representatives of the several
Underwriters, to the Company setting forth the number of Option Shares as
to which the several Underwriters are exercising the option, the names and
denominations in which the Option Shares are to be registered and the time
and date at which such certificates are to be delivered. The time and date
at which certificates for Option Shares are to be delivered shall be
determined by the Representatives but shall not be earlier than three nor
later than 10 full business days after the exercise of such option, nor in
any event prior to the Closing Date (such time and date being herein
referred to as the "Option Closing Date"). If the date of exercise of the
option is three or more days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date. The number
of Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the
number of Firm Shares being purchased by such Underwriter bears to
_______________, adjusted by you in such manner as to avoid fractional
shares. The option with respect to the Option Shares granted hereunder may
be exercised only to cover over-allotments in the sale of the Firm Shares
by the Underwriters. You, as Representatives of the several Underwriters,
may cancel such option at any time prior to its expiration by giving
written notice of such cancellation to the Company. To the extent, if any,
that the option is exercised, payment for the Option Shares shall be made
on the Option Closing Date in New York Clearing House funds by certified or
bank cashier's check drawn to the order of the Company against delivery of
certificates therefor at the offices of Alex. Brown & Sons Incorporated,
135 East Baltimore Street, Baltimore, Maryland.
3. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters are to make a public offering of the Firm Shares as soon as
the Representatives deem it advisable to do so. The Firm Shares are to be
initially offered to the public at the initial public offering price set
forth in the Prospectus. The Representatives may from time to time
thereafter change the public offering price and other selling terms. To
the extent, if at all, that any Option Shares are purchased pursuant to
Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with
a Master Agreement Among Underwriters entered into by you and the several
other Underwriters.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
the several Underwriters that:
a. The Company will (i) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus
containing information previously omitted at the time of effectiveness of
the Registration Statement in reliance on Rule 430A of the Rules and
Regulations, (ii) not file any amendment to the Registration Statement or
supplement to the Prospectus or document incorporated by reference therein
of which the Representatives shall not previously have been advised and
furnished with a copy or to which the Representatives shall have reasonably
objected in writing or which is not in compliance with the Rules and
Regulations and (iii) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of the Shares by the Underwriters.
b. The Company will advise the Representatives promptly of any
request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, or of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus or
of the institution of any proceedings for that purpose, and the Company
will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
c. The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as the Representatives may reasonably have designated in
writing and will make such applications, file such documents, and furnish
such information as may be reasonably required for that purpose, provided
the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where it
is not now so qualified or required to file such a consent. The Company
will, from time to time, prepare and file such statements, reports, and
other documents, as are or may be required to continue such qualifications
in effect for so long a period as the Representatives may reasonably
request for distribution of the Shares.
d. The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company will
deliver to, or upon the order of, the Representatives during the period
when delivery of a Prospectus is required under the Act, as many copies of
the Prospectus in final form, or as thereafter amended or supplemented, as
the Representatives may reasonably request. The Company will deliver to
the Representatives at or before the Closing Date, four signed copies of
the Registration Statement and all amendments thereto including all
exhibits filed therewith, and will deliver to the Representatives such
number of copies of the Registration Statement, including documents
incorporated by reference therein, but without exhibits, and of all
amendments thereto, as the Representatives may reasonably request.
e. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer any event shall occur as a
result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly will
either (i) prepare and file with the Commission an appropriate amendment to
the Registration Statement or supplement to the Prospectus or (ii) prepare
and file with the Commission an appropriate filing under the Securities
Exchange Act of 1934 which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not,
in the light of the circumstances when it is so delivered, be misleading,
or so that the Prospectus will comply with law.
f. The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later
than 15 months after the effective date of the Registration Statement, an
earning statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earning statement shall
satisfy the requirements of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations and will advise you in writing when such statement
has been so made available.
g. The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual reports and
copies of all other documents, reports and information furnished by the
Company to its stockholders or filed with any securities exchange pursuant
to the requirements of such exchange or with the Commission pursuant to the
Act or the Securities Exchange Act of 1934, as amended. The Company will
deliver to the Representatives similar reports with respect to significant
subsidiaries, as that term is defined in the Rules and Regulations, which
are not consolidated in the Company's financial statements.
h. No offering, sale or other disposition of any Common Stock
of the Company will be made for a period of 90 days after the date of this
Agreement, directly or indirectly, by the Company otherwise than hereunder
or with the prior written consent of the Representatives except that the
Company may, without such consent, issue shares upon the exercise of
options outstanding on the date of this Agreement issued pursuant to the
Company's incentive stock option plan, issued as consideration for future
acquisitions or issued pursuant to the Company's dividend reinvestment and
stock purchase plan.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and
fees incident to the performance of the obligations of the Company under
this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the
Registration Statement, Preliminary Prospectuses, the Prospectus, this
Agreement, the Agreement Among Underwriters, the Underwriters' Selling
Memorandum, the Underwriters' Questionnaire, the Invitation Letter, the
Blue Sky Survey and any supplements or amendments thereto; the filing fees
of the Commission; the filing fees and expenses incident to securing any
required review by the National Association of Securities Dealers, Inc.
(the "NASD") of the terms of the sale of the Shares; the fees and expenses
incurred with respect to the listing of the Shares on the New York Stock
Exchange; and the expenses, including the fees and disbursements of counsel
for the Underwriters, incurred in connection with the qualification of the
Shares under State securities or Blue Sky laws. The Company shall not,
however, be required to pay for any of the Underwriters' expenses (other
than those related to qualification under State securities or Blue Sky
laws) except that, if this Agreement shall not be consummated because the
conditions in Section 7 hereof are not satisfied, or because this Agreement
is terminated by the Representatives pursuant to Section 6 hereof, or by
reason of any failure, refusal or inability on the part of the Company to
perform any undertaking or satisfy any condition of this Agreement or to
comply with any of the terms hereof on its part to be performed, unless
such failure to satisfy said condition or to comply with said terms be due
to the default or omission of any Underwriter, then the Company shall
reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in
connection with investigating, marketing and proposing to market the Shares
or in contemplation of performing their obligations hereunder; but the
Company shall not in any event be liable to any of the several Underwriters
for damages on account of loss of anticipated profits from the sale by them
of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing
Date and the Option Shares, if any, on the Option Closing Date are subject
to the accuracy, as of the Closing Date or the Option Closing Date, as the
case may be, of the representations and warranties of the Company contained
herein, and to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions:
a. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission.
b. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Hull,
Towill, Norman & Barrett, P.C., counsel for the Company, dated the Closing
Date or the Option Closing Date, as the case may be, addressed to the
Underwriters to the effect that:
i. 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 corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; the Company is duly qualified to transact business in
all jurisdictions in which the conduct of its business requires
such qualification, or in which the failure to qualify would have
a materially adverse effect upon the business of the Company.
ii. The Company has authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the
Prospectus; the authorized shares of its Common Stock and
Preferred Stock have been duly authorized; the outstanding shares
of its Common Stock and Preferred Stock have been duly authorized
and validly issued and are fully paid and non-assessable; all of
the Shares conform to the description thereof contained in the
Prospectus; and the certificates for the Shares are in due and
proper form.
iii. The shares of Common Stock, including the Option
Shares, if any, to be sold by the Company pursuant to this
Agreement have been duly authorized and will be validly issued,
fully paid and non-assessable when issued and paid for as
contemplated by this Agreement; and no preemptive rights of
stockholders exist with respect to any of the Shares or the issue
and sale thereof.
iv. The Registration Statement has become effective under
the 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 Act.
v. The Registration Statement, all Preliminary
Prospectuses, the Prospectus and each amendment or supplement
thereto and document incorporated by reference therein comply as
to form in all material respects with the requirements of the Act
or the Securities Exchange Act of 1934, as applicable and the
applicable rules and regulations thereunder (except that such
counsel need express no opinion as to the financial statements,
schedules and other financial information included or
incorporated by reference therein).
vi. The statements under the captions "________________,"
"_____________," "______________," and "__________________" in
the Prospectus, insofar as such statements constitute a summary
of documents referred to therein or matters of law, are accurate
summaries and fairly and correctly present the information called
for with respect to such documents and matters.
vii. Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed,
incorporated by reference or described as required, and such
contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all material
respects.
viii. Such counsel knows of no material legal
proceedings or regulatory or other claims pending or threatened
against the Company except as set forth in the Prospectus.
ix. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and
will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, the Articles of
Incorporation or by-laws of the Company, or any agreement or
instrument known to such counsel to which the Company is a party
or by which the Company may be bound.
x. This Agreement has been duly authorized, executed and
delivered by the Company.
xi. No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement and
the consummation of the transactions herein contemplated (other
than as may be required by the National Association of Securities
Dealers, Inc. or as required by State securities and Blue Sky
laws as to which such counsel need express no opinion) except
such as have been obtained or made, specifying the same.
xii. The Company is not, and will not become as a result of
the consummation of the transactions contemplated by this
Agreement, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and has not been an
"investment company" at any time since 1988.
In rendering such opinion, Hull, Towill, Norman & Barrett, P.C. may
rely as to matters governed by the laws of states other than Georgia or
Federal laws on local counsel in such jurisdictions provided that in each
case Hull, Towill, Norman & Barrett, P.C. shall state that they believe
that they and the Underwriters are justified in relying on such other
counsel and such other counsel's opinion is also addressed to the
Underwriters. 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 Act, the Prospectus
or any amendment or supplement thereto, on the date it was filed pursuant
to Rule 424(b) or any of the documents incorporated by reference therein,
as of the date of effectiveness of the Registration Statement or, in the
case of documents incorporated by reference in the Prospectus after the
date of effectiveness of the Registration Statement, as of the respective
dates when such documents were filed with the Commission and the
Registration Statement and the Prospectus, or any amendment or supplement
thereto, as of the Closing Date or the Option Closing Date, as the case may
be, 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 (except that such counsel need express no
view as to financial statements, schedules and other financial information
included or incorporated by reference therein). With respect to such
statement, Hull, Towill, Norman & Barrett, P.C. may state that their belief
is based upon the procedures set forth therein, but is without independent
check and verification.
c. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Hull,
Towill, Norman & Barrett, P.C., tax counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be, addressed to
the Underwriters to the effect that:
i. The Company met the requirements for qualification and
taxation as a real estate investment trust ("REIT") for the
taxable years 1987, 1988, 1989, 1990, 1991, 1992, 1993 and 1994,
subject to the qualification noted in subparagraph (ii) below.
ii. There is an issue as to whether the Company satisfied
the 95%-distribution requirement of Section 857(a)(1) of the Code
with respect to the taxable year 1989. We believe, however, that
if the Internal Revenue Service were to assert successfully that
the Company did not meet the 95%-distribution requirement on the
basis of the foregoing issue, the Company nevertheless would be
entitled to use the deficiency dividend procedures of Section 860
of the Code to preserve its status as a qualified REIT for 1989
and subsequent taxable years by paying deficiency dividends to
its shareholders sufficient to meet the 95%-distribution
requirement and by otherwise complying with the requirements of
Section 860 of the Code.
iii. The Company's diversity of stock ownership and proposed
method of operation should allow it to qualify as a REIT for
1995.
iv. The discussion contained under the caption "Taxation"
in the Prospectus forming a part of the Registration Statement,
as of the time the Registration Statement became effective under
the Act and as of the Closing Date or the Option Closing Date, as
the case may be, accurately reflects existing law and fairly
addresses the material federal income tax issues described
therein that would affect an investment in the Firm Shares or
Option Shares, as the case may be.
In rendering such opinions, Hull, Towill, Norman & Barrett, P.C. may
rely as to matters of fact, to the extent they deem proper, on certificates
of officers of the Company and public officials so long as such counsel
states that no facts have come to the attention of such counsel which lead
them to believe that they are not justified in relying on such
certificates. In addition, Hull, Towill, Norman & Barrett, P.C. may state
that their opinions are based upon the procedures and assumptions set forth
in such opinion letter and that it is limited to the tax matters
specifically covered thereby and that they have not addressed any other tax
consequences of an investment in the Firm Shares or Option Shares, as the
case may be.
d. The Representatives shall have received from Piper &
Marbury, counsel for the Underwriters, an opinion dated the Closing Date or
the Option Closing Date, as the case may be, substantially to the effect
specified in subparagraphs (iii), (iv), (v) and (x) of Paragraph (b) of
this Section 6, and that the Company is a validly organized and existing
corporation under the laws of the State of Georgia. In rendering such
opinion Piper & Marbury may rely as to all matters governed other than by
the laws of the State of Maryland or Federal laws on the opinion of counsel
referred to in paragraph (b) of this Section 6. 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 Act, and the Prospectus or any amendment or supplement thereto,
on the date it was filed pursuant to Rule 424(b) or any of the documents
incorporated by reference therein, as of the date of effectiveness of the
Registration Statement or, in the case of documents incorporated by
reference in the Prospectus after the date of effectiveness of the
Registration Statement, as of the respective dates when such documents were
filed with the Commission and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, as of the Closing Date
or the Option Closing Date, as the case may be, 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 (except
that such counsel need express no view as to financial statements,
schedules and other financial information included or incorporated by
reference therein). With respect to such statement, Piper & Marbury may
state that their belief is based upon the procedures set forth therein, but
is without independent check and verification.
e. The Representatives shall have received at or prior to the
Closing Date from Piper & Marbury a memorandum or summary, in form and
substance satisfactory to the Representatives, with respect to the
qualification for offering and sale by the Underwriters of the Shares under
the State securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably have designated to the Company.
f. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, a signed letter from Arthur
Andersen LLP, dated the Closing Date or the Option Closing Date, as the
case may be, which shall confirm, on the basis of a review in accordance
with the procedures set forth in the letter signed by such firm and dated
and delivered to the Representatives on the date hereof that nothing has
come to their attention during the period from the date five days prior to
the date hereof, to a date not more than five days prior to the Closing
Date or the Option Closing Date, as the case may be, which would require
any change in their letter dated the date hereof if it were required to be
dated and delivered on the Closing Date or the Option Closing Date, as the
case may be. All such letters shall be in form and substance satisfactory
to the Representatives.
g. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial Officer
of the Company to the effect that, as of the Closing Date or the Option
Closing Date, as the case may be, each of them severally represents as
follows:
i. The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for
such purpose have been taken or are, to his knowledge,
contemplated by the Commission.
ii. He does not know of any litigation instituted or
threatened against the Company of a character required to be
disclosed in the Registration Statement which is not so
disclosed; he does not know of any material contract required to
be filed as an exhibit to the Registration Statement which is not
so filed; and the representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the
Closing Date or the Option Closing Date, as the case may be.
iii. He has carefully examined the Registration Statement
and the Prospectus and, in his opinion, as of the effective date
of the Registration Statement, the statements contained in the
Registration Statement, including any document incorporated by
reference therein, were true and correct, and such Registration
Statement and Prospectus or any document incorporated by
reference therein did not omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading and, in his opinion, since the effective
date of the Registration Statement, no event has occurred which
should have been set forth in a supplement to or an amendment of
the Prospectus which has not been so set forth in such supplement
or amendment.
h. The Company shall have furnished to the Representatives such
further certificates and documents confirming the representations and
warranties contained herein and related matters as the Representatives may
reasonably have requested.
i. The Firm Shares, and Option Shares, if any, have been
approved for listing upon official notice of issuance on the New York Stock
Exchange.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in
all material respects satisfactory to the Representatives and to Piper &
Marbury, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company of such termination in
writing or by telegram at or prior to the Closing Date or the Option
Closing Date, as the case may be.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of
the Company to sell and deliver the portion of the Shares required to be
delivered as and when specified in this Agreement are subject to the
conditions that at the Closing Date or the Option Closing Date, as the case
may be, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and in effect or proceedings therefor
initiated or threatened.
8. INDEMNIFICATION.
a. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act against any losses, claims, damages or liabilities
to which such Underwriter or such controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement, or omission or alleged omission made or incorporated by
reference in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or through
the Representatives specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
b. Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained or incorporated by
reference in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they
were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission
or alleged omission has been made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Representatives specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
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 this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to
any party who shall fail to give notice as provided in this Section 8(c) if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have
to the indemnified party for contribution or otherwise than on account of
the provisions of Section 8(a) or (b). In case any such proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party and shall pay as incurred 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 at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred
the fees and expenses of the counsel retained by the indemnified party in
the event (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 beween them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) and by the Company in the case of
parties indemnified pursuant to Section 8(b). 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.
d. If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8(c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof), 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
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault 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 on the one hand or the
Underwriters on he other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) 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 which does not take
account of the equitable considerations referred to above in this Section
8(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 8(d) shall be deemed to
include 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 subsection (d), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased
by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
e. In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction of any court having
jurisdiction over any other contributing party, agrees that process issuing
from such court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees that any other
contributing party may join him or it as an additional defendant in any
such proceeding in which such other contributing party is a party.
9. DEFAULT BY UNDERWRITERS. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to purchase
and pay for the portion of the Shares which such Underwriter has agreed to
purchase and pay for on such date (otherwise than by reason of any default
on the part of the Company, you, as Representatives of the Underwriters,
shall use your best efforts to procure within 24 hours thereafter one or
more of the other Underwriters, or any others, to purchase from the Company
such amounts as may be agreed upon and upon the terms set forth herein, the
Firm Shares or Option Shares, as the case may be, which the defaulting
Underwriter or Underwriters failed to purchase. If during such 24 hours
you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares,
as the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to
which such default shall occur does not exceed 10% of the Firm Shares or
Option Shares, as the case may be, covered hereby, the other Underwriters
shall be obligated, severally, in proportion to the respective numbers of
Firm Shares or Option Shares, as the case may be, which they are obligated
to purchase hereunder, to purchase the Firm Shares or Option Shares, as the
case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of shares of Firm Shares or Option
Shares, as the case may be, with respect to which such default shall occur
exceeds 10% of the Firm Shares or Option Shares, as the case may be,
covered hereby, the Company or you as the Representatives of the
Underwriters will have the right, by written notice given within the next
24-hour period to the parties to this Agreement, to terminate this
Agreement without liability on the part of the non-defaulting Underwriters
or of the Company except to the extent provided in Section 8 hereof. In
the event of a default by any Underwriter or Underwriters, as set forth in
this Section 9, the Closing Date or Option Closing Date, as the case may
be, may be postponed for such period, not exceeding seven days, as you, as
Representatives, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this
Section 9 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
10. NOTICES. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to Alex.
Brown & Sons Incorporated, 135 East Baltimore Street, Baltimore, Maryland
21202, Attention: William G. Byrnes, Managing Director; if to the Company,
to Merry Land & Investment Company, Inc., Attention: Peter S. Knox, III,
Chairman of the Board.
11. TERMINATION. This Agreement may be terminated by you by notice
to the Company as follows:
a. at any time prior to the earlier of (i) the time the Shares
are released by you for sale by notice to the Underwriters, or (ii) 11:30
A.M. on the first business day following the date of this Agreement;
b. at any time after the date hereof if any of the following
has occurred: (i) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change or any development involving a prospective material adverse
change in or affecting the condition, financial or otherwise, of the
Company or the earnings, business affairs, management or business prospects
of the Company, whether or not arising in the ordinary course of business,
(ii) any outbreak or escalation of hostilities or declaration of war or
national emergency after the date hereof or other national or international
calamity or crisis or change in economic or political conditions if the
effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the United States would, in
your reasonable judgment, make the offering or delivery of the Shares
impracticable or inadvisable, (iii) trading in securities on the New York
Stock Exchange or the American Stock Exchange shall have been suspended or
materially limited (other than limitations on hours or numbers of days of
trading) or minimum prices shall have been established for securities on
either such Exchange, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which in your reasonable opinion
materially and adversely affects or will materially or adversely affect the
business or operations of the Company, (v) declaration of a banking
moratorium by either federal or ________________ State authorities, (vi)
any downgrading in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Exchange Act of 1934, as
amended); (vii) the suspension of trading of the Company's Common Stock or
Series A Preferred Stock by the New York Stock Exchange; (viii) the taking
of any action by any governmenal body or agency in respect of its monetary
or fiscal affairs which in your reasonable opinion has a material adverse
effect on the securities markets in the United States or elsewhere, or (ix)
any litigation or proceeding is pending or threatened against the
Underwriters which seeks to enjoin or otherwise restrain, or seeks damages
in connection with, or questions the legality or validity of this Agreement
or the transactions contemplated hereby; or
c. as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option
Shares, upon the occurrence at any time prior to the Option Closing Date of
any of the events described in subparagraph (b) above or as provided in
Sections 6 and 9 of this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the Underwriters and the Company and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person
will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of the Shares merely because of such purchase.
13. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the
representations, warranties and covenants in this Agreement shall remain in
full force and effect regardless of (a) any termination of this Agreement,
(b) any investigation made by or on behalf of any Underwriter or
controlling person thereof, or by or on behalf of the Company or its
directors or officers and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
MERRY LAND & INVESTMENT
COMPANY, INC.
By:____________________
Peter S. Knox III
Chairman
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
ALEX. BROWN & SONS INCORPORATED
- -------------------------------
- -------------------------------
As Representatives of the Several Underwriters
listed on Schedule I
By: ALEX. BROWN & SONS INCORPORATED
By: _______________________________
Authorized Officer
<PAGE>
SCHEDULE I
Schedule of Underwriters
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Alex. Brown & Sons Incorporated
Total. . . . . . . . . . . . . .
__________________ Shares
MERRY LAND & INVESTMENT COMPANY, INC.
Series __ Preferred Stock
(Without Par Value)
UNDERWRITING AGREEMENT
---------------------
, 199__
ALEX. BROWN & SONS INCORPORATED
- -------------------------------
- -------------------------------
As Representatives of the Several Underwriters
c/o Alex. Brown & Sons Incorporated
135 East Baltimore Street
Baltimore, Maryland 21202
Gentlemen:
Merry Land & Investment Company, Inc., a Georgia corporation (the
"Company"), proposes to sell to the several underwriters (the
"Underwriters") named in Schedule I hereto for whom you are acting as
representatives (the "Representatives") an aggregate of ________________
shares of the Company's Series __ Preferred Stock, without par value (the
"Firm Shares"). The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto. The Company also proposes to sell at the Underwriters'
option an aggregate of up to ____________ additional shares of the
Company's Series __ Preferred Stock (the "Option Shares") as set forth
below.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are willing, acting
severally and not jointly, to purchase the numbers of Firm Shares set forth
opposite their respective names in Schedule I, plus their pro rata portion
of the Option Shares if you elect to exercise the over-allotment option in
whole or in part for the accounts of the several Underwriters. The Firm
Shares and the Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the
parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
a. The Company represents and warrants as follows:
A registration statement on Form S-3 (File No. 33-_____) with
respect to the Shares has been carefully prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended
(the "Act"), and the Rules and Regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder and
has been filed with the Commission under the Act. The Company has complied
with the conditions for the use of Form S-3. Copies of such registration
statement, including any amendments thereto, the preliminary prospectuses
contained therein and the exhibits, financial statements and schedules, as
finally amended and revised, have heretofore been delivered by the Company
to you. Such registration statement, herein referred to as the
"Registration Statement," has been declared effective by the Commission
under the Act and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. The form of prospectus
first filed by the Company with the Commission pursuant to its Rule 424(b)
is herein referred to as the "Prospectus." Each preliminary prospectus
included in the Registration Statement prior to the time it becomes
effective is herein referred to as a "Preliminary Prospectus." Any
reference herein to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein, as of the date of such Registration
Statement, Preliminary Prospectus or Prospectus, as the case may be, and,
in the case of any reference herein to any Prospectus, also shall be deemed
to include any documents incorporated by reference therein, and any
supplements or amendments relating to the Shares being issued and sold
pursuant hereto, filed with the Commission after the date of filing of the
Prospectus under Rules 424(b) and prior to the termination of the offering
of the Shares by the Underwriters.
b. 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 corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. The
Company is duly qualified to transact business in all jurisdictions in
which the conduct of its business requires such qualification. Except for
investments in securities as described in the Registration Statement, the
Company has no equity or other interest in, or right to acquire, an equity
or other interest in, any corporation, partnership, trust or other entity.
c. The outstanding shares of Common Stock and Preferred Stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable; the Shares to be issued and sold by the Company
have been duly authorized and when issued and paid for as contemplated
herein will be validly issued, fully-paid and non-assessable and will
conform with the statements concerning them in the Prospectus; and no
preemptive rights of stockholders exist with respect to any of the Shares
or the issue and sale thereof.
d. The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and non-assessable and will conform
to the description of the Series __ Preferred Stock contained in the
Prospectus, and the terms of the Articles of Amendment with respect to the
Shares will be valid and binding on the Company; the Shares are convertible
into shares of Common Stock in accordance with the terms of the Articles of
Amendment with respect to the Shares; the shares of Common Stock issuable
upon conversion of the Shares have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance with the
terms of the Articles of Amendment with respect to the Shares, will be duly
and validly issued, fully paid and non-assessable and will conform to the
description thereof contained in the Prospectus; the holders of outstanding
capital stock of the Company are not entitled to preemptive or other rights
afforded by the Company to subscribe for the Shares or the shares of Common
Stock issuable upon conversion of the Shares.
e. The issue and sale of the Shares, and the shares of Common
Stock issuable upon conversion of the Shares, if any, by the Company and
the compliance by the Company with all of the provisions of the Articles of
Amendment with respect to the Shares and provisions of this Agreement and
the consummation of the transactions herein and therein contemplated,
including the conversion of the Shares into shares of Common Stock, 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 indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject except for any such conflict,
breach or violation which does not have a material adverse effect on the
Company, nor will such action result in any violation of the provisions of
the Articles of Incorporation or By-Laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Shares and the shares of Common Stock issuable upon
conversion of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the filing of the
Articles of Amendment with the Secretary of State of Georgia and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters.
f. The Commission has not issued an order preventing or
suspending the use of any Prospectus or Preliminary Prospectus relating to
the proposed offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement contains and the Prospectus and any
amendments or supplements thereto will contain all statements which are
required to be stated therein by, and in all respects conform or will
conform, as the case may be, to the requirements of, the Act and the Rules
and Regulations. The documents incorporated by reference in the
Prospectus, at the time they were filed or will be filed with the
Commission, conformed or will conform at the time of filing, in all
respects to the requirements of the Securities Exchange Act of 1934 or the
Act, as applicable, and the Rules and Regulations of the Commission
thereunder. Neither the Registration Statement nor any amendment thereto,
and neither the Prospectus nor any supplement thereto, including any
documents incorporated by reference therein, contains or will contain, as
the case may be, any untrue statement of a material fact or omits or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to information contained in or
omitted from the Registration Statement or the Prospectus, or any such
amendment or supplement, or any documents incorporated by reference
therein, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives, specifically for use in the preparation thereof.
g. The financial statements of the Company, together with
related notes and schedules as set forth or incorporated by reference in
the Registration Statement, present fairly the financial position and the
results of operations of the Company at the indicated dates and for the
indicated periods. The financial statements with respect to the properties
acquired or to be acquired by the Company, together with related notes and
schedules as set forth or incorporated by reference in the Registration
Statement, present fairly the financial position and the results of
operations of such properties 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 or incorporated by reference in the
Registration Statement presents fairly the information shown therein and
have been compiled on a basis consistent with the financial statements
presented therein.
h. The Pro Forma Financial Statements of the Company included
in the Prospectus and incorporated by reference in the Registration
Statement have been prepared in conformity with the requirements of Article
11 of Regulation S-X.
i. There is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company before any court
or administrative agency or by any regulatory authority which might result
in any material adverse change in the business or condition of the Company,
except as set forth in the Registration Statement.
j. The Company has good and marketable title to all of the
properties and assets reflected in the financial statements (or as
described in the Registration Statement) hereinabove described, subject to
no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration
Statement) or which are not material in amount. The Company occupies its
leased properties under valid and binding leases conforming to the
description thereof set forth in the Registration Statement.
k. The Company has filed all Federal, State and foreign income
tax returns which have been required to be filed and have paid all taxes
indicated by said returns and all assessments received by them or any of
them to the extent that such taxes have become due and are not being
contested in good faith.
l. Since the respective dates as of which information is given
in the Registration Statement, as it may be amended or supplemented, there
has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the condition,
financial or otherwise, of the Company or the earnings, business affairs,
management, or business prospects of the Company, whether or not occurring
in the ordinary course of business, and there has not been any material
transaction entered into by the Company other than transactions in the
ordinary course of business and changes and transactions contemplated by
the Registration Statement, as it may be amended or supplemented. The
Company has no material contingent obligations which are not disclosed in
the Registration Statement, as it may be amended or supplemented.
m. The Company is not in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a
party or by which it or any of its properties is bound and which default is
of material significance in respect of the business or financial condition
of the Company.
n. Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions
herein contemplated (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares for public offering by the Underwriters
under State securities or Blue Sky laws) has been obtained or made and is
in full force and effect.
o. The Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of
its business; and the Company has not infringed any patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to
the business of the Company.
p. Arthur Andersen LLP, who have certified certain of the
financial statements filed with the Commission as part of, or incorporated
by reference in, the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
q. The Company has never been, is not now, and immediately
after the sale of the Shares under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
r. 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, as amended,
and the Company's present and contemplated operations, assets and income
continue to meet such requirements.
s. The conditions for the use of a registration statement 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 transactions
contemplated herein.
t. The Company's Common Stock and Series A Cumulative
Convertible Preferred Stock are listed on the New York Stock Exchange, and
the Shares of the Company to be sold under this Agreement have been
approved for listing on the New York Stock Exchange.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES. On the basis of
the representations, warranties and covenants herein contained, and subject
to the conditions herein set forth, the Company agrees to sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $________ per share, the number of Firm Shares set
forth opposite the name of each Underwriter in Schedule I hereof, subject
to adjustments in accordance with Section 9 hereof.
Payment for the Firm Shares to be sold hereunder is to be made in New
York Clearing House funds by certified or bank cashier's checks drawn to
the order of the Company against delivery of certificates therefor to the
Representatives for the several accounts of the Underwriters. Such payment
and delivery are to be made at the offices of Alex. Brown & Sons
Incorporated, 135 East Baltimore Street, Baltimore, Maryland, at 10:00
A.M., Baltimore time, on the fifth business day after the date of this
Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date
being herein referred to as the "Closing Date." (As used herein, "business
day" means a day on which the New York Stock Exchange is open for trading
and on which banks in ________________ are open for business and are not
permitted by law or executive order to be closed.) The certificates for
the Firm Shares will be delivered in such denominations and in such
registrations as the Representatives request in writing not later than the
third full business day prior to the Closing Date, and will be made
available for inspection by the Representatives at least one business day
prior to the Closing Date.
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 several Underwriters to purchase the
Option Shares at the price per share as set forth in the first paragraph of
this Section 2. The option granted hereby may be exercised in whole or in
part but only once and at any time upon written notice given within 30 days
after the date of this Agreement, by you, as Representatives of the several
Underwriters, to the Company setting forth the number of Option Shares as
to which the several Underwriters are exercising the option, the names and
denominations in which the Option Shares are to be registered and the time
and date at which such certificates are to be delivered. The time and date
at which certificates for Option Shares are to be delivered shall be
determined by the Representatives but shall not be earlier than three nor
later than 10 full business days after the exercise of such option, nor in
any event prior to the Closing Date (such time and date being herein
referred to as the "Option Closing Date"). If the date of exercise of the
option is three or more days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date. The number
of Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the
number of Firm Shares being purchased by such Underwriter bears to
_______________, adjusted by you in such manner as to avoid fractional
shares. The option with respect to the Option Shares granted hereunder may
be exercised only to cover over-allotments in the sale of the Firm Shares
by the Underwriters. You, as Representatives of the several Underwriters,
may cancel such option at any time prior to its expiration by giving
written notice of such cancellation to the Company. To the extent, if any,
that the option is exercised, payment for the Option Shares shall be made
on the Option Closing Date in New York Clearing House funds by certified or
bank cashier's check drawn to the order of the Company against delivery of
certificates therefor at the offices of Alex. Brown & Sons Incorporated,
135 East Baltimore Street, Baltimore, Maryland.
3. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters are to make a public offering of the Firm Shares as soon as
the Representatives deem it advisable to do so. The Firm Shares are to be
initially offered to the public at the initial public offering price set
forth in the Prospectus. The Representatives may from time to time
thereafter change the public offering price and other selling terms. To
the extent, if at all, that any Option Shares are purchased pursuant to
Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with
a Master Agreement Among Underwriters entered into by you and the several
other Underwriters.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
the several Underwriters that:
a. The Company will (i) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus
containing information previously omitted at the time of effectiveness of
the Registration Statement in reliance on Rule 430A of the Rules and
Regulations, (ii) not file any amendment to the Registration Statement or
supplement to the Prospectus or document incorporated by reference therein
of which the Representatives shall not previously have been advised and
furnished with a copy or to which the Representatives shall have reasonably
objected in writing or which is not in compliance with the Rules and
Regulations and (iii) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of the Shares by the Underwriters.
b. The Company will advise the Representatives promptly of any
request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, or of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus or
of the institution of any proceedings for that purpose, and the Company
will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
c. The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as the Representatives may reasonably have designated in
writing and will make such applications, file such documents, and furnish
such information as may be reasonably required for that purpose, provided
the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where it
is not now so qualified or required to file such a consent. The Company
will, from time to time, prepare and file such statements, reports, and
other documents, as are or may be required to continue such qualifications
in effect for so long a period as the Representatives may reasonably
request for distribution of the Shares.
d. The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company will
deliver to, or upon the order of, the Representatives during the period
when delivery of a Prospectus is required under the Act, as many copies of
the Prospectus in final form, or as thereafter amended or supplemented, as
the Representatives may reasonably request. The Company will deliver to
the Representatives at or before the Closing Date, four signed copies of
the Registration Statement and all amendments thereto including all
exhibits filed therewith, and will deliver to the Representatives such
number of copies of the Registration Statement, including documents
incorporated by reference therein, but without exhibits, and of all
amendments thereto, as the Representatives may reasonably request.
e. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer any event shall occur as a
result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly will
either (i) prepare and file with the Commission an appropriate amendment to
the Registration Statement or supplement to the Prospectus or (ii) prepare
and file with the Commission an appropriate filing under the Securities
Exchange Act of 1934 which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not,
in the light of the circumstances when it is so delivered, be misleading,
or so that the Prospectus will comply with law.
f. The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later
than 15 months after the effective date of the Registration Statement, an
earning statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earning statement shall
satisfy the requirements of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations and will advise you in writing when such statement
has been so made available.
g. The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual reports and
copies of all other documents, reports and information furnished by the
Company to its stockholders or filed with any securities exchange pursuant
to the requirements of such exchange or with the Commission pursuant to the
Act or the Securities Exchange Act of 1934, as amended. The Company will
deliver to the Representatives similar reports with respect to significant
subsidiaries, as that term is defined in the Rules and Regulations, which
are not consolidated in the Company's financial statements.
h. No offering, sale or other disposition of any Common Stock
of the Company will be made for a period of 90 days after the date of this
Agreement, directly or indirectly, by the Company otherwise than hereunder
or with the prior written consent of the Representatives except that the
Company may, without such consent, issue shares upon the exercise of
options outstanding on the date of this Agreement issued pursuant to the
Company's incentive stock option plan, issued as consideration for future
acquisitions or issued pursuant to the Company's dividend reinvestment and
stock purchase plan.
i. The Company will reserve and keep available at all times,
free of preemptive rights, shares of Common Stock for the purpose of
enabling the Company to satisfy any obligations to issue shares of its
Common Stock upon conversion of the Shares.
j. The Company will take any action reasonably necessary to
ensure that any shares of Common Stock issued upon the conversion or
redemption of the Shares are (i) freely transferable and not subject to any
resale restrictions under the Act or any applicable state securities or
blue sky laws (other than any shares of Common Stock issued upon conversion
or redemption of any Shares which are held by an "affiliate" (as defined in
Rule 144 under the Act) of the Company and (ii) duly and validly
authorized, fully paid and nonassessable.
k. The Company will use all reasonable efforts to list or
maintain the listing of the shares of Common Stock issuable upon such
conversion or redemption on the New York Stock Exchange.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and
fees incident to the performance of the obligations of the Company under
this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the
Registration Statement, Preliminary Prospectuses, the Prospectus, this
Agreement, the Agreement Among Underwriters, the Underwriters' Selling
Memorandum, the Underwriters' Questionnaire, the Invitation Letter, the
Blue Sky Survey and any supplements or amendments thereto; the filing fees
of the Commission; the filing fees and expenses incident to securing any
required review by the National Association of Securities Dealers, Inc.
(the "NASD") of the terms of the sale of the Shares; the fees and expenses
incurred with respect to the listing of the Shares, and, if applicable, any
Common Stock issuable upon conversion or redemption of the Shares, on the
New York Stock Exchange; and the expenses, including the fees and
disbursements of counsel for the Underwriters, incurred in connection with
the qualification of the Shares under State securities or Blue Sky laws.
The Company shall not, however, be required to pay for any of the
Underwriters' expenses (other than those related to qualification under
State securities or Blue Sky laws) except that, if this Agreement shall not
be consummated because the conditions in Section 7 hereof are not
satisfied, or because this Agreement is terminated by the Representatives
pursuant to Section 6 hereof, or by reason of any failure, refusal or
inability on the part of the Company to perform any undertaking or satisfy
any condition of this Agreement or to comply with any of the terms hereof
on its part to be performed, unless such failure to satisfy said condition
or to comply with said terms be due to the default or omission of any
Underwriter, then the Company shall reimburse the several Underwiters for
reasonable out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred in connection with investigating, marketing
and proposing to market the Shares or in contemplation of performing their
obligations hereunder; but the Company shall not in any event be liable to
any of the several Underwriters for damages on account of loss of
anticipated profits from the sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing
Date and the Option Shares, if any, on the Option Closing Date are subject
to the accuracy, as of the Closing Date or the Option Closing Date, as the
case may be, of the representations and warranties of the Company contained
herein, and to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions:
a. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission.
b. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Hull,
Towill, Norman & Barrett, P.C., counsel for the Company, dated the Closing
Date or the Option Closing Date, as the case may be, addressed to the
Underwriters to the effect that:
i. 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 corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; the Company is duly qualified to transact
business in all jurisdictions in which the conduct of its
business requires such qualification, or in which the
failure to qualify would have a materially adverse effect
upon the business of the Company.
ii. The Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the
Prospectus; the authorized shares of its Common Stock and
Preferred Stock have been duly authorized; the outstanding
shares of its Common Stock and Preferred Stock have been
duly authorized and validly issued and are fully paid and
non-assessable; all of the Shares conform to the description
thereof contained in the Prospectus; and the certificates
for the Shares are in due and proper form.
iii. The Shares have been duly and validly authorized and the
Shares, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and
fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus, and the
terms of the Articles of Amendment with respect to the
Shares will be valid and binding on the Company; the Shares
are convertible into shares of Common Stock in accordance
with the terms of the Articles of Amendment with respect to
the Shares; the shares of Common Stock issuable upon
conversion of the Shares have been duly and validly
authorized and reserved for issuance and, when issued and
delivered in accordance with the terms of the Articles of
Amendment with respect to the Shares, will be duly and
validly issued, fully paid and non-assessable and will
conform to the description thereof contained in the
Prospectus; the holders of outstanding capital stock of the
Company are not entitled to preemptive or other rights
afforded by the Company to subscribe for the Shares or the
shares of Common Stock issuable upon conversion of the
Shares.
iv. The Registration Statement has become effective under the
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 Act.
v. The Registration Statement, all Preliminary Prospectuses,
the Prospectus and each amendment or supplement thereto and
document incorporated by reference therein comply as to form
in all material respects with the requirements of the Act or
the Securities Exchange Act of 1934, as applicable and the
applicable rules and regulations thereunder (except that
such counsel need express no opinion as to the financial
statements, schedules and other financial information
included or incorporated by reference therein).
vi. The statements under the captions "_______________,"
"_______________," "_______________," and "_______________"
in the Prospectus, insofar as such statements constitute a
summary of documents referred to therein or matters of law,
are accurate summaries and fairly and correctly present the
information called for with respect to such documents and
matters.
vii. Such counsel does not know of any contracts or documents
required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so
filed, incorporated by reference or described as required,
and such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly
summarized in all material respects.
viii. Such counsel knows of no material legal proceedings or
regulatory or other claims pending or threatened
against the Company except as set forth in the
Prospectus.
ix. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not
and will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under,
the Articles of Incorporation or by-laws of the Company, or
any agreement or instrument known to such counsel to which
the Company is a party or by which the Company may be bound.
x. This Agreement has been duly authorized, executed and
delivered by the Company.
xi. No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement
and the consummation of the transactions herein contemplated
(other than as may be required by the National Association
of Securities Dealers, Inc. or as required by State
securities and Blue Sky laws as to which such counsel need
express no opinion) except such as have been obtained or
made, specifying the same.
xii. The Company is not, and will not become as a result of the
consummation of the transactions contemplated by this
Agreement, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and has not been
an "investment company" at any time since 1988.
In rendering such opinion, Hull, Towill, Norman & Barrett, P.C. may
rely as to matters governed by the laws of states other than Georgia or
Federal laws on local counsel in such jurisdictions provided that in each
case Hull, Towill, Norman & Barrett, P.C. shall state that they believe
that they and the Underwriters are justified in relying on such other
counsel and such other counsel's opinion is also addressed to the
Underwriters. 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 Act, the Prospectus
or any amendment or supplement thereto, on the date it was filed pursuant
to Rule 424(b) or any of the documents incorporated by reference therein,
as of the date of effectiveness of the Registration Statement or, in the
case of documents incorporated by reference in the Prospectus after the
date of effectiveness of the Registration Statement, as of the respective
dates when such documents were filed with the Commission and the
Registration Statement and the Prospectus, or any amendment or supplement
thereto, as of the Closing Date or the Option Closing Date, as the case may
be, 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 (except that such counsel need express no
view as to financial statements, schedules and other financial information
included or incorporated by reference therein). With respect to such
statement, Hull, Towill, Norman & Barrett, P.C. may state that their belief
is based upon the procedures set forth therein, but is without independent
check and verification.
c. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Hull,
Towill, Norman & Barrett, P.C., tax counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be, addressed to
the Underwriters to the effect that:
i. The Company met the requirements for qualification and
taxation as a real estate investment trust ("REIT") for the
taxable years 1987, 1988, 1989, 1990, 1991, 1992, 1993 and
1994, subject to the qualification noted in subparagraph
(ii) below.
ii. There is an issue as to whether the Company satisfied the
95%-distribution requirement of Section 857(a)(1) of the
Code with respect to the taxable year 1989. We believe,
however, that if the Internal Revenue Service were to assert
successfully that the Company did not meet the 95%-
distribution requirement on the basis of the foregoing
issue, the Company nevertheless would be entitled to use the
deficiency dividend procedures of Section 860 of the Code to
preserve its status as a qualified REIT for 1989 and
subsequent taxable years by paying deficiency dividends to
its shareholders sufficient to meet the 95%-distribution
requirement and by otherwise complying with the requirements
of Section 860 of the Code.
iii. The Company's diversity of stock ownership and proposed
method of operation should allow it to qualify as a REIT for
1995.
iv. The discussion contained under the caption "Taxation" in the
Prospectus forming a part of the Registration Statement, as
of the time the Registration Statement became effective
under the Act and as of the Closing Date or the Option
Closing Date, as the case may be, accurately reflects
existing law and fairly addresses the material federal
income tax issues described therein that would affect an
investment in the Firm Shares or Option Shares, as the case
may be.
In rendering such opinions, Hull, Towill, Norman & Barrett, P.C. may
rely as to matters of fact, to the extent they deem proper, on certificates
of officers of the Company and public officials so long as such counsel
states that no facts have come to the attention of such counsel which lead
them to believe that they are not justified in relying on such
certificates. In addition, Hull, Towill, Norman & Barrett, P.C. may state
that their opinions are based upon the procedures and assumptions set forth
in such opinion letter and that it is limited to the tax matters
specifically covered thereby and that they have not addressed any other tax
consequences of an investment in the Firm Shares or Option Shares, as the
case may be.
d. The Representatives shall have received from Piper &
Marbury, counsel for the Underwriters, an opinion dated the Closing Date or
the Option Closing Date, as the case may be, substantially to the effect
specified in subparagraphs (iii), (iv), (v) and (x) of Paragraph (b) of
this Section 6, and that the Company is a validly organized and existing
corporation under the laws of the State of Georgia. In rendering such
opinion Piper & Marbury may rely as to all matters governed other than by
the laws of the State of Maryland or Federal laws on the opinion of counsel
referred to in paragraph (b) of this Section 6. 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 Act, and the Prospectus or any amendment or supplement thereto,
on the date it was filed pursuant to Rule 424(b) or any of the documents
incorporated by reference therein, as of the date of effectiveness of the
Registration Statement or, in the case of documents incorporated by
reference in the Prospectus after the date of effectiveness of the
Registration Statement, as of the respective dates when such documents were
filed with the Commission and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, as of the Closing Date
or the Option Closing Date, as the case may be, 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 (except
that such counsel need express no view as to financial statements,
schedules and other financial information included or incorporated by
reference therein). With respect to such statement, Piper & Marbury may
state that their belief is based upon the procedures set forth therein, but
is without independent check and verification.
e. The Representatives shall have received at or prior to the
Closing Date from Piper & Marbury a memorandum or summary, in form and
substance satisfactory to the Representatives, with respect to the
qualification for offering and sale by the Underwriters of the Shares under
the State securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably have designated to the Company.
f. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, a signed letter from Arthur
Andersen LLP, dated the Closing Date or the Option Closing Date, as the
case may be, which shall confirm, on the basis of a review in accordance
with the procedures set forth in the letter signed by such firm and dated
and delivered to the Representatives on the date hereof that nothing has
come to their attention during the period from the date five days prior to
the date hereof, to a date not more than five days prior to the Closing
Date or the Option Closing Date, as the case may be, which would require
any change in their letter dated the date hereof if it were required to be
dated and delivered on the Closing Date or the Option Closing Date, as the
case may be. All such letters shall be in form and substance satisfactory
to the Representatives.
g. The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial Officer
of the Company to the effect that, as of the Closing Date or the Option
Closing Date, as the case may be, each of them severally represents as
follows:
i. The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings
for such purpose have been taken or are, to his knowledge,
contemplated by the Commission.
ii. He does not know of any litigation instituted or threatened
against the Company of a character required to be disclosed
in the Registration Statement which is not so disclosed; he
does not know of any material contract required to be filed
as an exhibit to the Registration Statement which is not so
filed; and the representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the
Closing Date or the Option Closing Date, as the case may be.
iii. He has carefully examined the Registration Statement and the
Prospectus and, in his opinion, as of the effective date of
the Registration Statement, the statements contained in the
Registration Statement, including any document incorporated
by reference therein, were true and correct, and such
Registration Statement and Prospectus or any document
incorporated by reference therein did not omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in
his opinion, since the effective date of the Registration
Statement, no event has occurred which should have been set
forth in a supplement to or an amendment of the Prospectus
which has not been so set forth in such supplement or
amendment.
h. The Company shall have furnished to the Representatives such
further certificates and documents confirming the representations and
warranties contained herein and related matters as the Representatives may
reasonably have requested.
i. The Firm Shares, and Option Shares, if any, and the Common
Stock issuable upon conversion of the Firm Shares and Option Shares, if
any, have been approved for listing upon official notice of issuance on the
New York Stock Exchange.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in
all material respects satisfactory to the Representatives and to Piper &
Marbury, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company of such termination in
writing or by telegram at or prior to the Closing Date or the Option
Closing Date, as the case may be.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of
the Company to sell and deliver the portion of the Shares required to be
delivered as and when specified in this Agreement are subject to the
conditions that at the Closing Date or the Option Closing Date, as the case
may be, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and in effect or proceedings therefor
initiated or threatened.
8. INDEMNIFICATION.
a. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act against any losses, claims, damages or liabilities
to which such Underwriter or such controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement, or omission or alleged omission made or incorporated by
reference in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or through
the Representatives specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
b. Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained or incorporated by
reference in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they
were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission
or alleged omission has been made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Representatives specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
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 this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to
any party who shall fail to give notice as provided in this Section 8(c) if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have
to the indemnified party for contribution or otherwise than on account of
the provisions of Section 8(a) or (b). In case any such proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party and shall pay as incurred 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 at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred
the fees and expenses of the counsel retained by the indemnified party in
the event (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 beween them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) and by the Company in the case of
parties indemnified pursuant to Section 8(b). 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.
d. If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8(c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof), 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
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault 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 on the one hand or the
Underwriters on he other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) 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 which does not take
account of the equitable considerations referred to above in this Section
8(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 8(d) shall be deemed to
include 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 subsection (d), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased
by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
e. In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction of any court having
jurisdiction over any other contributing party, agrees that process issuing
from such court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees that any other
contributing party may join him or it as an additional defendant in any
such proceeding in which such other contributing party is a party.
9. DEFAULT BY UNDERWRITERS. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to purchase
and pay for the portion of the Shares which such Underwriter has agreed to
purchase and pay for on such date (otherwise than by reason of any default
on the part of the Company, you, as Representatives of the Underwriters,
shall use your best efforts to procure within 24 hours thereafter one or
more of the other Underwriters, or any others, to purchase from the Company
such amounts as may be agreed upon and upon the terms set forth herein, the
Firm Shares or Option Shares, as the case may be, which the defaulting
Underwriter or Underwriters failed to purchase. If during such 24 hours
you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares,
as the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to
which such default shall occur does not exceed 10% of the Firm Shares or
Option Shares, as the case may be, covered hereby, the other Underwriters
shall be obligated, severally, in proportion to the respective numbers of
Firm Shares or Option Shares, as the case may be, which they are obligated
to purchase hereunder, to purchase the Firm Shares or Option Shares, as the
case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of shares of Firm Shares or Option
Shares, as the case may be, with respect to which such default shall occur
exceeds 10% of the Firm Shares or Option Shares, as the case may be,
covered hereby, the Company or you as the Representatives of the
Underwriters will have the right, by written notice given within the next
24-hour period to the parties to this Agreement, to terminate this
Agreement without liability on the part of the non-defaulting Underwriters
or of the Company except to the extent provided in Section 8 hereof. In
the event of a default by any Underwriter or Underwriters, as set forth in
this Section 9, the Closing Date or Option Closing Date, as the case may
be, may be postponed for such period, not exceeding seven days, as you, as
Representatives, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this
Section 9 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
10. NOTICES. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to Alex.
Brown & Sons Incorporated, 135 East Baltimore Street, Baltimore, Maryland,
Attention: William G. Byrnes, Managing Director; if to the Company, to
Merry Land & Investment Company, Inc., Attention: Peter S. Knox, III,
Chairman of the Board.
11. TERMINATION. This Agreement may be terminated by you by notice
to the Company as follows:
a. at any time prior to the earlier of (i) the time the Shares
are released by you for sale by notice to the Underwriters, or (ii) 11:30
A.M. on the first business day following the date of this Agreement;
b. at any time after the date hereof if any of the following
has occurred: (i) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change or any development involving a prospective material adverse
change in or affecting the condition, financial or otherwise, of the
Company or the earnings, business affairs, management or business prospects
of the Company, whether or not arising in the ordinary course of business,
(ii) any outbreak or escalation of hostilities or declaration of war or
national emergency after the date hereof or other national or international
calamity or crisis or change in economic or political conditions if the
effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the United States would, in
your reasonable judgment, make the offering or delivery of the Shares
impracticable or inadvisable, (iii) trading in securities on the New York
Stock Exchange or the American Stock Exchange shall have been suspended or
materially limited (other than limitations on hours or numbers of days of
trading) or minimum prices shall have been established for securities on
either such Exchange, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which in your reasonable opinion
materially and adversely affects or will materially or adversely affect the
business or operations of the Company, (v) declaration of a banking
moratorium by either federal or ________________ State authorities, (vi)
any downgrading in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Exchange Act of 1934, as
amended); (vii) the suspension of trading of the Company's Common Stock or
Series A Preferred Stock by the New York Stock Exchange; (viii) the taking
of any action by any governmenal body or agency in respect of its monetary
or fiscal affairs which in your reasonable opinion has a material adverse
effect on the securities markets in the United States or elsewhere, or (ix)
any litigation or proceeding is pending or threatened against the
Underwriters which seeks to enjoin or otherwise restrain, or seeks damages
in connection with, or questions the legality or validity of this Agreement
or the transactions contemplated hereby; or
c. as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option
Shares, upon the occurrence at any time prior to the Option Closing Date of
any of the events described in subparagraph (b) above or as provided in
Sections 6 and 9 of this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the Underwriters and the Company and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person
will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of the Shares merely because of such purchase.
13. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the
representations, warranties and covenants in this Agreement shall remain in
full force and effect regardless of (a) any termination of this Agreement,
(b) any investigation made by or on behalf of any Underwriter or
controlling person thereof, or by or on behalf of the Company or its
directors or officers and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
MERRY LAND & INVESTMENT
COMPANY, INC.
By:____________________
Peter S. Knox III
Chairman
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
ALEX. BROWN & SONS INCORPORATED
- -------------------------------
- -------------------------------
As Representatives of the Several Underwriters
listed on Schedule I
By: ALEX. BROWN & SONS INCORPORATED
By: _______________________________
Authorized Officer
<PAGE>
SCHEDULE I
Schedule of Underwriters
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Alex. Brown & Sons Incorporated
Total. . . . . . . . . . . . . .
Temporary Certificate - Exchangeable for Definitive Engraved Certificate
When Ready for Delivery
[NUMBER] [SHARES]
[----------] [----------]
| A 18179 | | SPECIMEN |
[----------] [----------]
MERRY LAND & INVESTMENT COMPANY, INC.
Incorporated Under the Laws of the State of Georgia
COMMON STOCK
[---------------] CUSIP 590438 10 7
| | See Reverse for Certain
[---------------] Definitions
[-------------------------------------------------------------------------]
| |
| This certifies that |
| |
| |
| |
| SPECIMEN |
| |
| |
| is the |
| owner of |
| |
[-------------------------------------------------------------------------]
Fully Paid and Non-Assessable Shares Without Par Value of the
Capital Common Stock of
Merry Land & Investment Company, Inc. transferable in person or by duly
authorized attorney, upon surrender of this Certificate, properly endorsed.
This Certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar
CERTIFICATE OF STOCK
Witness, the facsimile seal of the Corporation and the facsimile signatures
of the duly authorized officers.
Dated {SEAL} W. Tennent Houston
President
[--------------------] Merry Land & Investment
| | Company, Inc.
| |
| | Corporate Sea W. Hale Barrett
| | 1966 Secretary
| | Georgia
| |
[--------------------] {SEAL}
<PAGE>
MERRY LAND & INVESTMENT COMPANY, INC.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- __________ Custodian __________
(Qual) (Minor)
under Uniform Gifts to Minors Act _______________
(State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, _____ hereby sell, assign and transfer unto
Please Insert Social
Security Number of
Assignee
[--------------------]
| |
| |
[--------------------]
- -----------------------------------------------------------------
Please Print or Typewrite Name and Address Including
Postal Zip Code of Assignee
_________________________________________________________________
_________________________________________________________________
__________________________________________________________ Shares
of the capital stock represented by the within Certificate, and
do hereby irrevocably constitute and appoint ____________________
Attorney to transfer the said stock on the books of the within-
named Corporation with full power of substitution in the
premises.
Dated, ____________________
__________________________________________________
NOTICE: The Signature to this Assignment must Correspond
with the Name as Written upon the Face of the
Certificate in Every Particular, Without
Alteration or Enlargement, or Any Change Whatever.
STOCK WARRANT AGREEMENT
STOCK WARRANT AGREEMENT dated as of ______________________________,
199__, between Merry Land & Investment Company, Inc., a Georgia corporation
(the "Company"), and _______________________, a banking association
organized under the laws of the State of _______________________, as Stock
Warrant Agent (the "Stock Warrant Agent").
WHEREAS, the Company proposes to issue and sell stock warrants ("Stock
Warrants") to purchase shares of the Company's common stock, without par
value ("Common Stock"), each whole Stock Warrant exercisable to purchase
one share of Common Stock (such shares which may be purchased upon the
exercise of Stock Warrants at any time being hereinafter referred to as the
"Shares"); and
WHEREAS, the Company desires the Stock Warrant Agent to act on behalf
of the Company, and the Stock Warrant Agent is willing so to act, in
connection with the issuance and exercise of Stock Warrants and the
registration, transfer, exchange and replacement of Stock Warrant
Certificates and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF STOCK WARRANT AGENT. The Company hereby
appoints the Stock Warrant Agent to act as agent for the Company in
accordance with the instructions set forth hereinafter in this Agreement,
and the Stock Warrant Agent hereby accepts such appointment.
SECTION 2. FORM OF STOCK WARRANT CERTIFICATES. The Stock Warrant
Certificates to be delivered pursuant to this Agreement shall be in
registered form only and shall be substantially in the form set forth in
Exhibit A attached hereto, and may have such letters, numbers or other
marks of identification or designation or such legends, summaries or
endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with
any rule or regulation under such law.
SECTION 3. EXECUTION OF STOCK WARRANT CERTIFICATES. Stock Warrant
Certificates shall be signed on behalf of the Company by its Chairman of
the Board, President, an Executive Vice President or a Vice President and
shall be attested by its Secretary or an Assistant Secretary under its
corporate seal. Each such signature upon the Stock Warrant Certificates
may be in the form of a facsimile signature of the present or any future
Chairman of the Board, President, Vice President, Secretary or Assistant
Secretary. The Seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on
the Stock Warrant Certificates.
If the Chairman of the Board or any officer of the Company who shall
have signed any of the Stock Warrant Certificates shall cease to be such
Chairman of the Board or officer before the Stock Warrant Certificates so
signed shall have been countersigned by the Stock Warrant Agent and
delivered to or disposed of by the Company, such Stock Warrant Certificates
nevertheless may be countersigned and delivered to or disposed of as though
such person had not ceased to be such Chairman of the Board or officer of
the Company; and any Stock Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Stock Warrant Certificate, was such Chairman of the Board or officer
although at the date of this Stock Warrant Agreement any such person was
not such Chairman of the Board or officer.
In connection with the initial issuance of the Stock Warrant
Certificates, upon receipt of Stock Warrant Certificates executed by the
Company and a written order of the Company executed by its Chairman of the
Board, President, an Executive Vice President, a Vice President, Secretary
or Assistant Secretary, the Stock Warrant Agent will countersign and
deliver Stock Warrant Certificates in accordance with the instructions
contained in such order.
Stock Warrant Certificates shall be dated the date of countersignature
by the Stock Warrant Agent.
SECTION 4. REGISTRATION AND COUNTERSIGNATURE. Stock Warrant
Certificates distributed as provided in Section 11 shall be registered in
the names of the record holders of the Stock Warrant Certificates to whom
they are to be distributed.
Stock Warrant Certificates shall be manually countersigned by the
Stock Warrant Agent and shall not be valid for any purpose unless so
countersigned.
The Company and the Stock Warrant Agent may deem and treat the
registered holder of a Stock Warrant Certificate as the absolute owner
thereof (notwithstanding any notation of ownership or other writing thereon
made by anyone), for the purpose of any exercise thereof and any
distribution to the holder thereof and for all other purposes, and neither
the Company nor the Stock Warrant Agent shall be affected by any notice to
the contrary.
SECTION 5. REGISTRATION OF TRANSFERS AND EXCHANGES. The Stock
Warrant Agent shall from time to time register the transfer of any
outstanding Stock Warrant Certificates upon the records to be maintained by
it for that purpose, upon surrender thereof duly endorsed, or accompanied
(if so required by it) by a written instrument or instruments of transfer
in form satisfactory to the Stock Warrant Agent, duly executed by the
registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Stock Warrant Certificate shall be issued
to the transferee and the surrendered Stock Warrant Certificate shall be
canceled by the Stock Warrant Agent. The Stock Warrant Agent shall destroy
canceled Stock Warrant Certificates and deliver a certificate of such
destruction to the Company.
One or more Stock Warrant Certificates may be exchanged at the option
of the holder thereof, when surrendered to the Stock Warrant Agent at its
office maintained for the purpose of exchanging, transferring and
exercising the Stock Warrants in the County of _______________, the City of
______________, State of ______________ (the "Stock Warrant Agent Office")
or at the office of any successor Stock Warrant Agent as provided in
Section 18 hereof, for another Stock Warrant Certificate or other Stock
Warrant Certificates of like tenor and representing in the aggregate a like
number of Stock Warrants. Stock Warrant Certificates surrendered for
exchange or transfer shall be canceled by the Stock Warrant Agent. Such
canceled Stock Warrant Certificates shall be destroyed by the Stock Warrant
Agent and a certificate of such destruction shall be delivered to the
Company.
The Stock Warrant Agent is hereby authorized to countersign, in
accordance with the provisions of this Section 5 and of Section 4, and
deliver the new Stock Warrant Certificates required pursuant to the
provisions of this Section and for the purpose of any distribution of Stock
Warrant Certificates contemplated by Section 11.
SECTION 6. DURATION AND EXERCISE OF STOCK WARRANTS. The Stock
Warrants shall expire on (i) the close of business on _______________ or
(ii) such earlier date after _______________ as shall be determined by the
Company and of which 90 days prior notice to the registered holders of
Stock Warrants and the Stock Warrant Agent shall have been given in
accordance with the provisions of Sections 14 and 19 hereof, if the closing
sale price of the Company's Common Stock (New York Stock Exchange composite
transactions) shall be not less than 125 percent of the then current Stock
Warrant exercise price for 20 trading days in a period of 30 consecutive
trading days ending not more than 10 calendar days immediately prior to the
date of such notice (such date of expiration being herein referred to as
the "Expiration Date"). Each Stock Warrant may be exercised on any
business day prior to the close of business on the Expiration Date. After
the close of business on the Expiration Date, the Stock Warrants will
become wholly void and of no value.
No fractional Shares shall be issued upon surrender of Stock Warrant
Certificates but, in lieu of fractional Shares, the registered holder of
Stock Warrant Certificates may elect (a) to be paid an amount in cash equal
to the same fraction of the current market value of a Share of Common Stock
or (b) to have the amount of the cash payment determined in (a) credited
against the Exercise Price payable for Shares to be received upon exercise
of the holder's whole Stock Warrants. For purposes of (a) and (b), the
current market value of Common Stock shall be the closing price of a Share
of Common Stock (determined pursuant to the second sentence of Section
11(d)) on the last trading day immediately prior to the day on which a
Stock Warrant is exercised.
Subject to the provisions of this Agreement, including Section 11, the
holder of each whole Stock Warrant shall have the right to purchase from
the Company (and the Company shall issue and sell to such holder) one fully
paid and nonassessable Share at the initial exercise price (the "Exercise
Price") of $__________ upon the surrender on any business day prior to the
close of business on the Expiration Date to the Stock Warrant Agent at the
Stock Warrant Agent Office of the Stock Warrant Certificate evidencing such
Stock Warrant, with the form of election to exercise on the reverse thereof
duly filled in and signed, and upon payment of the Exercise Price in lawful
money of the United States of America by means of a certified or official
bank check payable to the Company.
The Stock Warrants evidenced by a Stock Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date, at the
election of the registered holder thereof, either as an entirety or from
time to time for part of the number of Stock Warrants specified in the
Stock Warrant Certificates, but in no event shall any fractional Share be
issued with regard to such Stock Warrant Certificates. In the event that
less than all the Stock Warrant Certificates evidenced by a Stock Warrant
Certificate surrendered upon the exercise of Stock Warrants are exercised
at any time prior to the close of business on the Expiration Date, a new
Stock Warrant Certificate or Certificates will be issued for the remaining
number of Stock Warrants. No adjustments shall be made for any cash
dividends on Shares issuable on the exercise of a Stock Warrant.
Subject to Section 7, upon such surrender of a Stock Warrant
Certificate, and payment of the Exercise Price, the Stock Warrant Agent
shall requisition from First Union National Bank of North Carolina,
Charlotte, North Carolina, the transfer agent for the Common Stock (the
"Transfer Agent"), for issuance and delivery to or upon the written order
of the registered holder of such Stock Warrant Certificate and in such name
or names as such registered holder may designate, a certificate for the
Share or Shares issuable upon the exercise of the Stock Warrants evidenced
by such Stock Warrant Certificates. Such certificate shall be deemed to
have been issued and any person so designated to be named therein shall be
deemed to have become the holder of record of such Share or Shares as of
the date of the surrender of such Stock Warrant Certificates and payment of
the Exercise Price. The Stock Warrant Agent is hereby authorized to
countersign and deliver the required new Stock Warrant Certificate or
Certificates pursuant to the provisions of this Section 6 and of Section 5.
All Stock Warrant Certificates surrendered upon exercise of Stock
Warrants shall be canceled by the Stock Warrant Agent. Such canceled Stock
Warrant Certificates shall then be destroyed by the Stock Warrant Agent and
a certificate of such destruction shall be sent to the Company.
SECTION 7. PAYMENT OF TAXES. The Company will pay all documentary
stamp taxes attributable to the initial issuance of Shares upon the
exercise of Stock Warrants; PROVIDED, HOWEVER, that the Company shall not
be required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue of any Stock Warrant Certificates or any
certificates for Shares in a name other than that of the registered holder
of a Stock Warrant Certificate surrendered upon the exercise of a Stock
Warrant, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 8. MUTILATED, LOST, STOLEN OR DESTROYED STOCK WARRANT
CERTIFICATES. If any Stock Warrant Certificate is mutilated, lost, stolen
or destroyed, the Company may in its discretion issue, and the Stock
Warrant Agent shall countersign and deliver, in exchange and substitution
for and upon cancellation of the mutilated Stock Warrant Certificate, or in
lieu of and substitution for the Stock Warrant Certificate lost, stolen or
destroyed, a new Stock Warrant Certificate of like tenor and representing
the same number of Stock Warrants, but only upon receipt of evidence
satisfactory to the Company and the Stock Warrant Agent of such loss, theft
or destruction of such Stock Warrant Certificate and indemnity or bond, if
requested, also satisfactory to them. Applicants for such substitute Stock
Warrant Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the
Stock Warrant Agent may prescribe.
SECTION 9. RESERVATION OF SHARES. For the purpose of enabling it
to satisfy any obligation to issue Shares upon exercise of Stock Warrants,
the Company will at all times through the close of business on the
Expiration Date, reserve and keep available, free from preemptive rights
and out of its aggregate authorized but unissued Common Stock, the number
of Shares deliverable upon the exercise of all outstanding Stock Warrants
and the Transfer Agent for such Common Stock are hereby irrevocably
authorized and directed at all times to reserve such number of authorized
and unissued shares of Common Stock as shall be required for such purpose.
The Company will deposit a copy of this Agreement with such Transfer Agent.
The Stock Warrant Agent is hereby irrevocably authorized to requisition
from time to time from such Transfer Agent stock certificates issuable upon
exercise of outstanding Stock Warrants, and the Company will supply such
Transfer Agent with duly executed stock certificates for such purpose.
Before taking any action which would cause an adjustment pursuant to
Section 11 reducing the Exercise Price below the then par value (if any) of
the Shares issuable upon exercise of the Stock Warrants, the Company will
take any corporate action which may, in the opinion of its counsel (which
may be counsel employed by the Company), be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares
at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the
Stock Warrants will, upon issuance in accordance with the terms of this
Agreement, be fully paid and nonassessable and free from all preemptive
rights and taxes, liens, charges and security interests created by the
Company with respect to the issuance and holding thereof.
SECTION 10. OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE
LISTINGS; REGISTRATIONS OF SHARES. The Company from time to time will use
its best efforts (i) to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and to file
such documents under federal and state securities laws, which may be or
become requisite in connection with the issuance, sale, transfer and
delivery of the Stock Warrant Certificates and the exercise of the Stock
Warrants; PROVIDED, HOWEVER, if any such permits, consents, approvals or
documents are not so obtained or effective, the Company will immediately
notify the Stock Warrant Agent; (ii) to have the Stock Warrants listed on
the New York Stock Exchange or on the principal United States securities
exchange or exchanges on which the Common Stock is listed; (iii)
immediately upon the issuance of Shares upon exercise of Stock Warrants, to
have such Shares listed on the New York Stock Exchange or on the principal
United States securities exchange or exchanges on which the Common Stock is
listed; and (iv) immediately upon any adjustment in the number of Shares
purchasable upon exercise of the Stock Warrants to register such Shares
with the Securities and Exchange Commission under the Securities Act of
1933, as amended.
SECTION 11. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES
PURCHASABLE OR NUMBER OF STOCK WARRANTS. The Exercise Price, the number of
Shares purchasable upon the exercise of each Stock Warrant and the number
of Stock Warrants outstanding are subject to adjustment from time to time
upon the occurrence of the events enumerated in this Section 11.
(a) If the Company shall at any time after the date of this Agreement
(i) declare a dividend on the Common Stock payable in shares of Common
Stock; (ii) subdivide the outstanding Common Stock; (iii) combine the
outstanding Common Stock into a smaller number of shares; or (iv) issue any
shares of its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the Exercise
Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and/or
the number and kind of shares of capital stock issuable on such date, shall
be proportionately adjusted so that the holders of any Stock Warrant
exercised after such time shall be entitled to receive the aggregate number
and kind of shares of capital stock which, if such Stock Warrant had been
exercised immediately prior to such date, such Stock Warrant holder would
have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) If the Company shall at any time after the date of this Agreement
issue rights or warrants to all holders of Common Stock entitling them (for
a period expiring within 45 days after the record date fixed for such
issuance) to subscribe for or purchase Common Stock (or securities
convertible into Common Stock) at a price per share of Common Stock (or
having a conversion price per share of Common Stock, if a security
convertible into Common Stock) that is less than 95 percent of the then
current market price per share of Common Stock (as defined in Section
11(d)) on the record date fixed for such issuance, the Exercise Price in
effect after such record date shall be determined by multiplying the
Exercise Price in effect immediately prior to such record date by a
fraction, of which the numerator shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares of Common
Stock which the aggregate offering price of the total number of shares of
Common Stock so to be offered (or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase at such current
market price and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially
convertible). If such subscription price may be paid in consideration part
or all of which shall be in a form other than cash, the value of such
consideration shall be determined by the Board of Directors of the Company,
whose determination shall be conclusive. Shares of Common Stock owned by
or held for the account of the Company or any majority-owned subsidiary
shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date is
fixed; and if such rights or warrants are not so issued, the Exercise Price
shall again be adjusted to be the Exercise Price which would then be in
effect if such record date had not been fixed, but such subsequent
adjustments shall not affect the number of Shares issued upon any exercise
of Stock Warrants prior to the date such subsequent adjustment is made.
(c) If the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or
assets (excluding (i) cash dividends or distributions paid from
consolidated earnings or consolidated earned surplus of the Company
(determined in accordance with generally accepted accounting principles),
(ii) quarterly Common Stock dividends at the rate of $____ per share or
increases therein out of consolidated net income of the Company (determined
in accordance with generally accepted accounting principles) for the period
from the end of its most recent fiscal year to the date of the most recent
consolidated quarterly financial statements of the Company as of the time
of the declaration of the dividend, or subscription rights or warrants
(excluding those referred to in Section 11(b), (iii) Common Stock, or (iv)
rights or warrants to purchase Common Stock described in paragraph (b)
above), the Exercise Price in effect after such record date shall be
determined by multiplying the Exercise Price in effect immediately prior to
such record date by a fraction, of which the numerator shall be the current
market price per share of Common Stock (as defined in Section 11(d)) on
such record date less the fair market value (determined by the Board of
Directors of the Company, whose determination shall be conclusive, and
described in a statement filed with the Stock Warrant Agent) of the portion
of the assets or evidences of indebtedness so to be distributed allocable
to one share of Common Stock and of which the denominator shall be such
current market price per share of Common Stock. Such adjustment shall be
made successively whenever such a record date is fixed; and if such
distribution is not so made, the Exercise Price shall again be adjusted to
be the Exercise Price which would then be in effect if such record date had
not been fixed, but such subsequent adjustment shall not affect the number
of Shares issued upon any exercise of Stock Warrants prior to the date such
subsequent adjustment is made.
(d) For the purpose of any computation under Section 11(b), (c) or as
elsewhere referenced in this Agreement, the current market price per share
of Common Stock or Stock Warrants on any date shall be deemed to be the
average of the daily closing prices, respectively, for the Common Stock and
the Stock Warrants, for the 30 consecutive trading days commencing 45
trading days before such date. The closing price for each day shall be as
reported as New York Stock Exchange composite transactions.
(e) No adjustments in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least 1 percent
in such price; PROVIDED, HOWEVER, that (x) any adjustments which by reason
of this Section 11(e) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment and (y) notwithstanding
the provisions of this subsection, any adjustments in the Exercise Price
will be made not later than the third anniversary of the occurrence of the
event upon which such adjustment is based; PROVIDED, FURTHER, that
notwithstanding any other provision in this Section 11, the Company shall
be entitled, to the extent permitted by law, to make such adjustments in
the Exercise Price, in addition to those required by this Section 11, as in
its discretion shall deem advisable in order that any stock dividends,
subdivision of shares, reclassification or combination of shares,
distribution of rights or warrants to purchase stock or securities, or a
distribution of other assets (other than cash dividends) hereafter made by
the Company to its stockholders shall not be taxable, or if that is not
possible, to diminish any income taxes that are otherwise payable because
of such event. All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one-hundredth of a Share, as the case may
be, but in no event shall the Company be obligated to issue a fractional
Share upon the exercise of any Stock Warrant. Notwithstanding any other
provision of this Section 11, the Exercise Price shall not be adjusted for
the issuance of any shares of Common Stock pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of the
Company and the investment of additional optional amounts in shares of
Common Stock under the Plan.
(f) In the event that at any time, as a result of an adjustment made
pursuant to Section 11(a), the holder of any Stock Warrant thereafter
exercised shall become entitled to receive any shares of capital stock of
the Company other than shares of Common Stock, thereafter the number of
such other shares so receivable upon exercise of any Stock Warrant shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Shares
contained in Section 11(a) through (c), inclusive, and the provisions of
Section 6, 7, 9, 10, 11(e), 11(j) and 13 with respect to the Shares shall
apply on like terms to any such other shares.
(g) In any case in which this Section 11 shall require that an
adjustment in the Exercise Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Stock Warrant exercised after
such record date of the Shares and other capital stock of the Company, if
any, issuable upon such exercise over and above the Shares and other
capital stock of the Company, if any, issuable upon such exercise on the
basis of the Exercise Price in effect prior to such adjustment; PROVIDED,
HOWEVER, that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such
adjustment.
(h) Unless the Company has exercised its election to adjust the
number of Stock Warrants as provided in Section 11(i), upon each adjustment
of the Exercise Price as a result of the calculations made in Section
11(a), (b) or (c), each Stock Warrant outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase,
at the adjusted Exercise Price, that number of Shares (calculated to the
nearest hundredth) obtained by (A) multiplying the number of Shares
purchasable upon exercise of a Stock Warrant immediately prior to such
adjustment of the number of Shares by the Exercise Price in effect
immediately prior to such adjustment of the Exercise Price and (B) dividing
the product so obtained by the Exercise price in effect immediately after
such adjustment of the Exercise Price.
(i) The Company may elect on or after the date of any adjustment of
the Exercise Price to adjust the number of Stock Warrants, in substitution
for an adjustment in the number of Shares purchasable upon the exercise of
a Stock Warrant as provided in Section 11(h). Each Stock Warrant
outstanding after such adjustment of the number of Stock Warrants shall be
exercisable for the same number of Shares as immediately prior to such
adjustment. Each Stock Warrant held of record prior to such adjustment of
the number of Stock Warrants shall become that number of Stock Warrants
(calculated to the nearest hundredth) obtained by dividing the Exercise
Price in effect prior to adjustment of the Exercise Price by the Exercise
Price in effect after adjustment of the Exercise Price. The Company shall
notify the holder of Stock Warrants in the same manner as provided in the
first paragraph of Section 14, of its election to adjust the number of
Stock Warrants, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Exercise Price is adjusted or any day
thereafter, but shall be at least 10 days later than the date of the
notice. Upon each adjustment of the number of Stock Warrants pursuant to
this subsection (i) the Company shall, as promptly as practicable, cause to
be distributed to holders of record of Stock Warrants on such record date
Stock Warrant Certificates evidencing, subject to Section 13, the
additional Stock Warrants to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement
for the Stock Warrant Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Stock Warrant Certificates evidencing all the Stock Warrants to be issued,
executed and registered in the manner specified in Section 4 and 5 (and
which may bear, at the option of the Company, the adjusted Exercise Price)
and shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the public announcement.
(j) In the case of any capital reorganization of the Company, or of
any reclassification of the Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as
a result of subdivision or combination), or in case of the consolidation of
the Company with or the merger of the Company into any other corporation or
in case of a statutory share exchange to which the Company is a party
(other than a consolidation, merger or share exchange in which the Company
is the continuing or successor corporation) or of the sale of the
properties and assets of the Company as, or substantially as, an entirety
to any other corporation, each Stock Warrant shall after such
reorganization, reclassification, consolidation, merger, share exchange or
sale be exercisable upon the terms and conditions specified in this
Agreement, for the number of shares of stock or other securities or
property to which a holder of the number of Shares purchasable (at the time
of such reorganization, reclassification, consolidation, merger, share
exchange or sale) upon exercise of such Stock Warrant would have been
entitled upon such reorganization, reclassification, consolidation, merger,
share exchange or sale; and in any such case, if necessary, the provisions
set forth in this Section 11 with respect to the rights and interests
thereafter of the holders of the Stock Warrants shall be appropriately
adjusted so as to be applicable, as early as may reasonably be, to any
shares of stock or other securities or Warrants. The subdivision or
combination of shares of Common Stock at any time outstanding into a
greater or lesser number of shares shall not be deemed to be a
reclassification of the Common Stock for the purposes of this Section
11(j). The Company shall not effect any such consolidation, merger, share
exchange or sale, unless prior to or simultaneously with the consummation
thereof the successor corporation (if other than the Company) resulting
from such consolidation, merger or share exchange or the corporation
purchasing such assets or other appropriate corporation or entity shall
assume, by written instrument executed and delivered to the Stock Warrant
Agent, the obligation to deliver to the holder of each Stock Warrant such
shares of stock, securities or assets as, in accordance with the foregoing
provisions, such holders may be entitled to purchase under this Agreement.
SECTION 12. OPTIONAL REDUCTION OF EXERCISE PRICE. The Company may,
at any time or from time to time, voluntarily reduce the then current
Exercise Price by an amount not in excess of 33 percent of such then
current Exercise Price for such period or periods of time as the Board of
Directors of the Company may determine; PROVIDED, HOWEVER, that each such
period shall be at least 30 days. In each such event, the Company shall
prepare a certificate of an officer of the Company stating (i) the election
of the Company to reduce the then current Exercise Price in accordance with
this Section 12; (ii) the period in which such reduced Exercise Price shall
be in effect; and (iii) that such election is irrevocable during such
period. The Company shall mail a brief summary of the provisions of such
certificate at least 15 days prior to the date fixed for the commencement
of any period in which the reduced Exercise Price shall be in effect to the
Stock Warrant Agent at the address provided in Section 19 hereof and to
each registered holder of Stock Warrant Certificates at such Stock Warrant
holder's address appearing on the Stock Warrant register. Failure on the
part of the holders of Stock Warrant Certificates to receive such notice by
mail, or any defect therein, shall not affect the validity of the reduction
of the then current Exercise Price during such period. During such period,
any adjustment in the Exercise Price pursuant to Section 11 hereof shall be
made to the reduced Exercise Price as provided by this Section 12 in the
manner specified in such Section 11. After the termination of such period,
the Exercise Price shall be such Exercise Price which would have been in
effect, as adjusted pursuant to the provisions of Section 11, had there
been no reduction in the Exercise Price pursuant to the provisions of this
Section 12. No reduction of the then current Exercise Price pursuant to
the provisions of this Section 12 shall be deemed for the purposes of
Section 11 hereof to alter or adjust the Exercise Price.
SECTION 13. FRACTIONAL STOCK WARRANTS AND FRACTIONAL SHARES. (a)
The Company shall not be required to issue fractions of Stock Warrants on
any distribution of Stock Warrants to holders of Stock Warrant Certificates
pursuant to Section 11(i) or to distribute Stock Warrant Certificates which
evidence fractional Stock Warrants. In lieu of such fractional Stock
Warrants, the registered holder of a Stock Warrant Certificate with regard
to which such a fractional Stock Warrant would otherwise be issuable shall
receive an amount in cash equal to the same fraction of the current market
value of a whole Stock Warrant. For purposes of this Section 13(a), the
current market value of a Stock Warrant shall be determined under Section
11(d) for the last trading day immediately prior to the date on which such
fractional Stock Warrant would have been otherwise issuable.
(b) Notwithstanding an adjustment pursuant to Section 11(h) in the
number of Shares purchasable upon the exercise of a Stock Warrant, the
Company shall not be required to issue fractions of Shares upon exercise of
the Stock Warrants or to distribute certificates which evidence fractional
Shares. The registered holders of Stock Warrant Certificates at the time
such Stock Warrants are exercised as herein provided may elect (i) to
receive an amount in cash equal to the same fraction of the current market
value of a share of Common Stock or (ii) to have the cash payment credited
against the Exercise Price of Shares to be received upon exercise of whole
Stock Warrants. Such election shall be made on the form provided for such
purpose by the Company. For purposes of this Section 13(b), the current
market value of a share of Common Stock shall be as determined under
Section 11(d) for the last trading day immediately prior to the date of
such exercise.
SECTION 14. NOTICES TO STOCK WARRANT HOLDERS. Upon adjustment of
the Exercise Price pursuant to Section 11, the Company within 20 calendar
days thereafter shall (i) cause to be filed with the Stock Warrant Agent a
certificate of a firm of independent public accountants of recognized
standing selected by the Company (who may be the regular auditors of the
Company) setting forth the Exercise Price after such adjustment and setting
forth in reasonable detail the method of calculation and the facts upon
which such calculations are based and setting forth the number of Shares
purchasable upon exercise of a Stock Warrant after such adjustment in the
Exercise Price, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein and (ii) cause to be given to
each of the registered holders of the Stock Warrant Certificates at such
Stock Warrant holder's address appearing on the Stock Warrant register
written notice of such adjustments by first-class mail, postage prepaid.
Where appropriate, such notice may be given in advance and included as a
part of the notice required to be mailed under the other provisions of this
Section 14.
If:
(a) the Company authorizes the issuance to all holders of
Common Stock or rights or warrants to subscribe for or purchase
capital stock of the Company or of any other subscription rights
or warrants; or
(b) the Company authorizes the distribution to all holders
of Common Stock of evidences of its indebtedness or assets
(excluding (i) cash dividends or distributions paid from
consolidated earnings or consolidated earned surplus of the
Company (determined in accordance with generally accepted
accounting principles), or (ii) quarterly Common Stock dividends
at the rate of $____ per share or increases therein out of
consolidated net income of the Company (determined in accordance
with generally accepted accounting principles) for the period
from the end of its most recent fiscal year to the date of the
most recent consolidated quarterly financial statements of the
Company as of the time of the declaration of the dividend, and
(iii) dividends payable in Common Stock); or
(c) there is any consolidation, share exchange or merger to
which the Company is a party and for which approval of any
stockholders of the Company is required, or of the conveyance or
transfer of the properties and assets of the Company
substantially as an entirety, or of any capital reorganization or
any reclassification of the Common Stock (other than a change in
par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or
combination); or
(d) there is a voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) the Company proposes to take any other action which
would require an adjustment of the Exercise Price pursuant to
Section 11;
the Company shall file with the Stock Warrant Agent and give to each
registered holder of a Stock Warrant Certificate at such Stock Warrant
holder's address appearing on the Stock Warrant register, at least 20
calendar days (or 10 calendar days in any case specified in clauses (a) or
(b) above) prior to the applicable record date hereinafter specified in (i)
or (ii) below, by first-class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common
Stock to be entitled to receive any such rights, warrants or distribution
are to be determined or (ii) the date on which any such consolidation,
merger, share exchange, conveyance, transfer, reorganization,
reclassification, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
record of shares of Common Stock shall be entitled to exchange such shares
for securities or other property, if any, deliverable upon such
consolidation, share exchange, merger, conveyance, transfer,
reorganization, reclassification, dissolution, liquidation or winding up.
Failure to give the notice required by this Section 14 or any defect
therein shall not affect the legality or validity of any distribution,
right, warrant, consolidation, share exchange, merger, conveyance,
transfer, reorganization, reclassification, dissolution, liquidation or
winding up or the vote upon any action.
Nothing in this Agreement or in any Stock Warrant Certificate shall be
construed as conferring upon the holder thereof the right to vote or to
consent or to receive notice as a stockholder in respect of the meetings of
stockholders or the election of directors of the Company or on any other
matter, or any rights whatsoever as a stockholder of the Company.
SECTION 15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF STOCK
WARRANT AGENT. Any corporation into which the Stock Warrant Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the Stock Warrant Agent shall be a party, or any corporation succeeding to
the corporate trust business of the Stock Warrant Agent, shall be the
successor to the Stock Warrant Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, provided that such corporation would be eligible for appointment as
a successor Stock Warrant Agent under the provisions of Section 18. If at
the time such successor to the Stock Warrant Agent shall succeed under this
Agreement, any of the Stock Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Stock Warrant
Agent may adopt the countersignature of the original Stock Warrant Agent;
and in case at that time any of the Stock Warrant Certificates shall not
have been countersigned, any successor to the Stock Warrant Agent may
countersign such Stock Warrant Certificates either in the name of the
predecessor Stock Warrant Agent or in the name of the successor Stock
Warrant Agent. In all such cases such Stock Warrant Certificates shall
have the full force provided in the Stock Warrant Certificates and in this
Agreement.
If at any time the name of the Stock Warrant Agent shall be changed
and at such time any of the Stock Warrant Certificates shall have been
countersigned but not delivered, the Stock Warrant Agent whose name has
changed may adopt the countersignature under its prior name, and if at that
time any of the Stock Warrant Certificates shall not have been
countersigned, the Stock Warrant Agent may countersign such Stock Warrant
Certificates either in its prior name or in its changed name, and in all
such cases such Stock Warrant Certificates shall have the full force
provided in the Stock Warrant Certificates and in this Agreement.
SECTION 16. STOCK WARRANT AGENT. The Stock Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders
of Stock Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Stock Warrant
Certificates shall be taken as statements of the Company, and the Stock
Warrant Agent assumes no responsibility for the correctness of any of the
same except such statements as describe the Stock Warrant Agent or action
taken or to be taken by it. Except as herein otherwise provided, the Stock
Warrant Agent assumes no responsibility with respect to the execution,
delivery or distribution of the Stock Warrant Certificates.
(b) The Stock Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Stock Warrant Certificates to be complied with by the
Company, nor shall the Stock Warrant Agent at any time be under any duty or
responsibility to any holder of a Stock Warrant to make or cause to be made
any adjustment in the Exercise Price (except that the Stock Warrant Agent
shall receive the certificate of the Company's independent accountants
required to be delivered in connection with any adjustment of the Exercise
Price) or in the number of Shares issuable upon exercise of the Stock
Warrants (except as instructed by the Company), or to determine whether any
facts exist which may require any such adjustments, or with respect to the
nature or extent of or method employed in making any such adjustments when
made.
(c) The Stock Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Stock
Warrant Agent shall incur no liability or responsibility to the Company or
to any holder of any Stock Warrant Certificate in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance
with the opinion or the advice of such counsel.
(d) The Stock Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Stock Warrant
Certificate for any action taken in reliance on any notice, resolution,
waiver, consent, order, certificate, or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or presented by
the proper party or parties.
(e) The Company agrees (i) to pay to the Stock Warrant Agent
reasonable compensation for all services rendered by the Stock Warrant
Agent under this Agreement; (ii) to reimburse the Stock Warrant Agent upon
demand for all expenses, taxes and governmental charges and other charges
of any kind and nature incurred by the Stock Waiver Agent in the execution
of its duties under this Agreement; and (iii) to indemnify the Stock
Warrant Agent and hold it harmless against any and all losses, liabilities
and expenses, including judgments, costs and counsel fees, for anything
done or omitted by the Stock Warrant Agent arising out of or in connection
with this Agreement, except as a result of its negligence or bad faith.
(f) The Stock Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of
Stock Warrant Certificates shall furnish the Stock Warrant Agent with
reasonable security and indemnity for any costs and expenses which may be
incurred. All rights of action under this Agreement or under any of the
Stock Warrants may be enforced by the Stock Warrant Agent without the
possession of any of the Stock Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such
action, suit or proceeding instituted by the Stock Warrant Agent shall be
brought in its name as Stock Warrant Agent, and any recovery or judgment
shall be for the ratable benefit of the registered holders of the Stock
Warrants, as their respective rights or interests may appear.
(g) The Stock Warrant Agent, and any stockholder, director, officer
or employee thereof, may buy, sell or deal in any of the Stock Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as thought
it were not the Stock Warrant Agent under this Agreement. Nothing herein
shall preclude the Stock Warrant Agent from acting in any other capacity
for the Company or for any other legal entity.
(h) The Stock Warrant Agent shall act hereunder solely as agent for
the Company, and its duties shall be determined solely by the provisions
hereof. The Stock Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement, except for
its own negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Stock Warrant Agent for the carrying out or performing
of the provisions of this Agreement.
(j) The Stock Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Stock Warrant Agent) or in
respect of the validity or execution of any Stock Warrant Certificate
(except its countersignature thereof); nor shall the Stock Warrant Agent by
any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of the Shares to be issued pursuant to
this Agreement or any Stock Warrant Certificate or as to whether the Shares
will, when issued, be validly issued, fully paid and nonassessable or as to
the Exercise Price or the number of Shares issuable upon exercise of any
Stock Warrant.
(k) The Stock Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from the Chairman of the Board, the President, any Executive Vice President
or Vice President, the Secretary or Assistant Secretary of the Company, and
to apply to such officers for advice or instructions in connection with its
duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such
officer or in good faith reliance upon any statement signed by any one of
such officers of the Company with respect to any fact or matter (unless
other evidence in respect thereof is herein specifically prescribed) which
may be deemed to be conclusively proved and established by such signed
statement.
(l) The Company will furnish to the Stock Warrant Agent, upon request
but not more often than annually, an opinion of counsel (who may be counsel
to the Company) acceptable to the Stock Warrant Agent, to the effect that
(i) a Registration Statement under the Securities Act of 1933, as amended,
is then in effect with respect to the Shares issuable on the exercise of
the Stock Warrants and that the Prospectuses hereinafter referred to comply
as to form in all material respects with the requirements of said Act and
the rules and regulations of the Securities and Exchange Commission
thereunder or (ii) a Registration Statement under said Act with respect to
the Shares issuable on the exercise of the Stock Warrants is not required.
If said opinion states that such a Registration Statement is in effect, the
Company will, from time to time, furnish the Stock Warrant Agent with
current Prospectuses meeting the requirements of said Act and all rules and
regulations thereunder in sufficient quantity to permit the Stock Warrant
Agent to deliver a Prospectus to each holder of a Stock Warrant upon
exercise thereof. The Company further agrees to pay all fees, costs and
expenses in connection with the preparation and delivery to the Stock
Warrant Agent of the foregoing opinions and Prospectuses.
SECTION 17. DISPOSITION OF PROCEEDS OF EXERCISE OF STOCK WARRANTS.
The Stock Warrant Agent shall account promptly to the Company with respect
to Stock Warrants exercised and concurrently pay to the Company all moneys
received by the Stock Warrant Agent on the purchase of Shares through the
exercise of Stock Warrants.
SECTION 18. CHANGE OF STOCK WARRANT AGENT. If the Stock Warrant
Agent shall resign (such resignation to become effective not earlier than
30 days after the giving of written notice thereof to the Company and the
registered holders of Stock Warrant Certificates) or shall become incapable
of acting as Stock Warrant Agent, the Company shall appoint a successor to
the Stock Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been so notified in
writing by the Stock Warrant Agent or by the registered holder of a Stock
Warrant Certificate (in the case of incapacity), then the registered holder
of any Stock Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a successor to the Stock Warrant Agent.
Pending appointment of a successor to the Stock Warrant Agent, either by
the Company or buy such a court, the duties of the Stock Warrant Agent
shall be carried out by the Company. Any successor Stock Warrant Agent
whether appointed by the Company or by such a court shall be a bank or
trust company, in good standing, incorporated under the laws of the United
States of America or any state thereof, and having an office in the County
of _______________, The City of ______________, State of ______________,
and shall have at the time of its appointment as Stock Warrant Agent a
combined capital and surplus of at least 50 million dollars. As soon as
practicable after appointment of the successor Stock Warrant Agent, the
Company shall cause to be given to each of the registered holders of the
Stock Warrant Certificates at such Stock Warrant holder's address appearing
on the Stock Warrant register written notice of the change in the Stock
Warrant Agent by first-class mail, postage prepaid. After appointment, the
successor Stock Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Stock
Warrant Agent without further act or deed; but the former Stock Warrant
Agent shall deliver and transfer to the successor Stock Warrant Agent any
property at the time held by it hereunder and execute and deliver, at the
expense of the Company, any further assurance, conveyance, act or deed
necessary for the purpose. Failure to give any notice provided for in this
Section 18, however, or any defect therein, shall not affect the legality
or validity of the removal of the Stock Warrant Agent or the appointment of
a successor Stock Warrant Agent, as the case may be.
SECTION 19. NOTICES TO COMPANY AND STOCK WARRANT AGENT Any notice
or demand authorized by this Agreement to be given or made by the Stock
Warrant Agent or by the registered holder of any Stock Warrant Certificate
to or on the Company shall be sufficiently given or made if sent by mail,
first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Stock Warrant Agent),
as follows:
Merry Land & Investment Company, Inc.
624 Ellis Street
Augusta, Georgia 30901
Attention: Chairman of the Board
If the Company shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at
the corporate trust office of the Stock Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder of any Stock Warrant Certificate to the Stock Warrant
Agent shall be sufficiently given if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by the Stock
Warrant Agent with the Company) to the Stock Warrant Agent as follows:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
Notwithstanding the foregoing, no notice pursuant to this
Agreement shall be effective until received by the Stock Warrant Agent.
SECTION 20. SUPPLEMENTS AND AMENDMENTS. The Company and the Stock
Warrant Agent may from time to time supplement or amend this Agreement
without the approval of any holders of Stock Warrant Certificates in order
to cure any ambiguity, manifest error or other mistake in this Agreement,
or to correct or supplement any provision contained herein, or to make any
other provisions in regard to matters or questions arising hereunder which
the Company and the Stock Warrant Agent may deem necessary or desirable and
which shall not adversely affect, alter or change the interest of the
holders of Stock Warrant Certificates.
SECTION 21. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Stock Warrant Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
SECTION 22. TERMINATION. This Agreement shall terminate at the
close of business on the Expiration Date. Notwithstanding the foregoing ,
this Agreement will terminate on any earlier date if all Stock Warrants
have been exercised. The provisions of Section 16 shall survive such
termination.
SECTION 23. GOVERNING LAW. This Agreement and each Stock Warrant
Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of [______________] and for all purposes shall be
construed in accordance with the laws of such State.
SECTION 24. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Stock Warrant Agent and the registered holders of the Stock
Warrant Certificates any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Stock Warrant Agent and the registered holders
of the Stock Warrant Certificates.
SECTION 25. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, as of the day and year first above written.
MERRY LAND & INVESTMENT
COMPANY, INC.
By:____________________
Title:
[ ]
as Stock Warrant Agent
By:____________________
Title:
<PAGE>
EXHIBIT A
No. W-
[FORM OF STOCK WARRANT CERTIFICATE]
[FACE]
EXERCISABLE ON OR BEFORE ____________________
UNLESS SUCH DATE IS ACCELERATED BY THE COMPANY AS PROVIDED
IN THE STOCK WARRANT AGREEMENT REFERRED TO BELOW
Certificate for _______ Stock Warrants
STOCK WARRANT CERTIFICATE
MERRY LAND & INVESTMENT COMPANY, INC.
This Stock Warrant Certificate certifies that _____________ or
registered assigns, is the registered holder of the number of Stock
Warrants (the "Stock Warrants") of Merry Land & Investment Company, Inc., a
Georgia Corporation (the "Company"), set forth elsewhere on this
certificate. Each Stock Warrant expires at the close of business on
________________, or such earlier date after ________________________ as
shall be determined pursuant to the Stock Warrant Agreement referred to on
the reverse hereof, and entitles the holder to purchase from the Company
one fully paid and nonassessable share of Common Stock without par value,
of the Company (the "Share") at the initial exercise price (the "Exercise
Price") of $_______ payable in lawful money of the United States of America
by means of a certified or official bank check payable to the Company upon
surrender of this Stock Warrant Certificate and payment of the Exercise
Price at the office or agency of the Stock Warrant Agent in the County of
_______________, The City of ______________, State of ______________ (the
"Stock Warrant Agent Office"), but only subject to the conditions set forth
herein and in the Stock Warrant Agreement. The Exercise Price and number of
Shares purchasable upon exercise of the Stock Warrants are subject to
adjustment upon the occurrence of certain events set forth in the Stock
Warrant Agreement.
No Stock Warrant may be exercised after the close of business on (i)
________________ or (ii) such earlier date, on or subsequent to
______________, as shall be determined by the Company and of which 90 days
prior notice shall have been given to the registered holder hereof, if the
closing sale price for the Company's Common Stock shall be not less than
125 percent of the then current Stock Warrant exercise price for 20 trading
days in a period of 30 consecutive trading days ending not more than 10
calendar days immediately prior to the date of such notice (such date of
expiration, or such earlier date, is hereafter referred to as the
"Expiration Date"). After the close of business on the Expiration Date,
the Stock Warrants will become wholly void and of no value.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS STOCK
WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF AND SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET
FORTH AT THIS PLACE.
This Stock Warrant Certificate shall not be valid unless countersigned
by the Stock Warrant Agent, as such term is used in the Stock Warrant
Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
MERRY LAND & INVESTMENT
COMPANY, INC.
Dated: By:____________________
Title:
Attest:________________
Title:
[SEAL]
Countersigned:
[ ]
as Stock Warrant Agent
By:___________________
Authorized Signature
<PAGE>
[FORM OF STOCK WARRANT CERTIFICATE]
[REVERSE]
MERRY LAND & INVESTMENT COMPANY, INC.
The Stock Warrants evidenced by this Stock Warrant Certificate are
part of a duly authorized issue of Stock Warrants expiring at the close of
business on _______________, unless such date is accelerated at the option
of the Company pursuant to the Stock Warrant Agreement, to purchase shares
of Common Stock, without par value, of the Company in aggregate up to the
number of Stock Warrants evidenced by this Stock Warrant Certificate, and
are issued or to be issued pursuant to a Stock Warrant Agreement dated as
of ________ (the "Stock Warrant Agreement"), duly executed and delivered by
the Company to _____________, as Stock Warrant Agent (the "Stock Warrant
Agent"). The Stock Warrant Agreement is hereby incorporated by reference
and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of right, obligations, duties and
immunities thereunder of the Stock Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Stock Warrants.
Stock Warrants may be exercised to purchase Shares from the Company on
or before the close of business on the Expiration Date, at the Exercise
Price set forth on the face hereof, subject to adjustment, as hereinafter
referred to. The holder of Stock Warrants evidenced by this Stock Warrant
Certificate may exercise them by surrendering the Stock Warrant
Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise
Price at the Stock Warrant Agent Office. If upon any exercise of Stock
Warrants evidenced hereby the number of Stock Warrants exercised shall be
less than the total number of Stock Warrants evidenced hereby, there shall
be issued to the holder hereof or such holder's assignee a new Stock
Warrant Certificate evidencing the number of Stock Warrants not exercised.
No adjustment shall be made for any cash dividends on any Shares issuable
upon exercise of this Stock Warrant. After the close of business on the
Expiration Date, unexercised Stock Warrants shall become wholly void and of
no value.
The Stock Warrant Agreement provides that, upon the occurrence of
certain events, the Exercise Price set forth on the face hereof may,
subject to certain conditions, be adjusted. If the Exercise Price is
adjusted, the Stock Warrant Agreement provides that, at the election of the
Company, either (i) the number of Shares purchasable upon the exercise of
each Stock Warrant shall be adjusted or (ii) each outstanding Stock Warrant
shall be adjusted to become a different number of Stock Warrants. In the
latter event, the Company will cause to be distributed to registered
holders of Stock Warrant Certificates either Stock Warrant Certificates
representing the additional Stock Warrants issuable pursuant to the
adjustment or substitute Stock Warrant Certificates to replace all
outstanding Stock Warrant Certificates.
At any time or from time to time, the Company shall have the right to
reduce the then current Exercise Price by an amount not in excess of 33
percent for a period or periods to be determined by the Company, but in any
event not less than 30 days. The Company shall make a public announcement
of the reduction in Exercise Price and shall mail a notice to each
registered holder of Stock Warrant Certificates.
The Company shall not be required to issue fractional Stock Warrants
or fractional Shares upon the exercise of Stock Warrants or any
certificates which evidence fractional Stock Warrants or fractional Shares.
In lieu of such fractional Stock Warrants, the registered holder of a Stock
Warrant Certificate with regard to which a fractional Stock Warrant would
otherwise be issuable shall receive an amount in cash equal to the same
fraction of the current market value of a whole Stock Warrant (as
determined pursuant to the Stock Warrant Agreement). In lieu of such
fractional Shares the registered holders of the Stock Warrant Certificates
with regard to which such fractional Shares would otherwise be issuable may
elect, at the time of the exercise of Stock Warrants, (i) to receive an
amount in cash equal to the same fraction of the current market value (as
determined pursuant to the Stock Warrant Agreement) of a full Share or (ii)
to credit such cash payment against the Exercise Price of Shares to be
received upon exercise of whole Stock Warrants.
One or more Stock Warrant Certificates, when surrendered at the Stock
Warrant Agent Office by the registered holder thereof in person or by legal
representative or by attorney duly authorized in writing, may be exchanged,
in the manner and subject to the limitations provided in the Stock Warrant
Agreement, but without payment of any service charge, for another Stock
Warrant Certificate or Stock Warrant Certificates of like tenor evidencing
in the aggregate a like number of Stock Warrants.
Upon due presentment for registration of transfer of this Stock
Warrant Certificate at the Stock Warrant Agent Office, a new Stock Warrant
Certificate or Stock Warrant Certificates of like tenor and evidencing in
the aggregate a like number of Stock Warrants shall be issued to the
transferee in exchange for this Stock Warrant Certificate, subject to the
limitations provided in the Stock Warrant Agreement, without charge except
for any tax or other governmental charge imposed in connection therewith.
The Company and the Stock Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Stock Warrant
Certificate (notwithstanding any notation of ownership or other writing
hereon made by anyone) for the purpose of any exercise or exchange hereof
and for all other purposes, and neither the Company nor the Stock Warrant
Agent shall be affected by any notice to the contrary.
<PAGE>
[FORM OF ELECTION TO EXERCISE]
(To be executed upon exercise of Stock Warrant prior to the close of
business on the Expiration Date)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Stock Warrant Certificate, to purchase ____ Shares and
herewith tenders payment for such Shares in the amount of $____ in the form
of a certified or official bank check payable to the Company. The
undersigned requests that a certificate representing the Shares be
registered in the name of _______________________ whose address is
___________________________ and that such certificate be delivered to
_________________ whose address is ______________________. If said number
of Shares is less than all the Shares purchasable hereunder, the
undersigned requests that a new Stock Warrant Certificate representing the
right to purchase the balance of the Shares be registered in the name of
__________________ whose address is _____________________. In lieu of
receipt of a fractional Share, if any, the undersigned hereby elects (i) to
receive a cash payment made to _____________ whose address is
_____________________ and the check representing payment thereof should be
delivered to __________________, whose address is __________________ or
(ii) elects to credit the amount of such payment against the Exercise Price
payable for Shares to be received upon the exercise of Stock Warrants.
Dated: ______________, 19__
________________________________
Social Security or other
Taxpayer's Identification Number
<PAGE>
Name of registered holder of Stock Warrant Certificate:
______________________________
(Please print)
Address:
______________________________
______________________________
Signature:
______________________________
Note: The above signature must correspond with the name as written upon
the face of this Stock Warrant Certificate in every particular,
without alteration or enlargement or any change whatever and if
the certificate representing the Shares or any Stock Warrant
Certificate representing Stock Warrants not exercised is to be
registered in a name other than that in which this Stock Warrant
Certificate is registered, the signature of the holder hereof
must be guaranteed.
Signature Guaranteed:
<PAGE>
[FORM OF ASSIGNMENT]
For value received _________________________ hereby sells, assigns and
transfers unto ___________________ the within Stock Warrant Certificate,
together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint _____________ attorney, to transfer said
Stock Warrant Certificate on the books of the within-named Company, with
full power of substitution in the premises.
Dated: _____________________, 19__
----------------------------------------------------------------------
Note: The above signature must correspond with the name as written
upon the face of this Stock Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
Signature Guaranteed:
MERRY LAND & INVESTMENT COMPANY, INC.,
[ ], As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
-----------------
DEPOSIT AGREEMENT
-----------------
Dated as of [ ]
<PAGE>
TABLE OF CONTENTS Page
----------------- ----
ARTICLE I
Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts.. . . . . . . . . . . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof.. . . . . . . . . . . . . . . . . 3
SECTION 2.03. Registration of Transfer of Receipts. . . . . . . . . . . . . 3
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.05. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts. . . . . . . . . 4
SECTION 2.06. Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts. . . . . 4
SECTION 2.08. Redemption of Stock . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
Certain Obligations of Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information . . . . . . 6
SECTION 3.02. Payment of Taxes or Other Governmental Charges. . . . . . . . 6
SECTION 3.03. Warranty as to Stock. . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges . . . . . . . . . . . . . . . . . . 7
SECTION 4.03. Subscription Rights, Preferences or Privileges. . . . . . . . 7
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date
for Holders of Receipts . . . . . . . . . . . . . . . . . . . 8
SECTION 4.05. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc.. . . . . . . . . . 8
SECTION 4.07. Delivery of Reports . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.08. List of Receipt Holders . . . . . . . . . . . . . . . . . . . 9
ARTICLE V
The Depositary, the Depositary's Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. . . . . . . . . . . . . . 9
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the
Registrar or the Company. . . . . . . . . . . . . . . . . . . 9
SECTION 5.03. Obligation of the Depositary, the
Depositary's Agents, the Registrar and the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . . . . . .11
SECTION 5.05. Corporate Notices and Reports . . . . . . . . . . . . . . . .12
SECTION 5.06. Indemnification by the Company. . . . . . . . . . . . . . . .12
SECTION 5.07. Charges and Expenses. . . . . . . . . . . . . . . . . . . . .12
SECTION 5.08. Tax Compliance. . . . . . . . . . . . . . . . . . . . . . . .12
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 6.02. Termination . . . . . . . . . . . . . . . . . . . . . . . . .13
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 7.02. Exclusive Benefit of Parties. . . . . . . . . . . . . . . . .14
SECTION 7.03. Invalidity of Provisions. . . . . . . . . . . . . . . . . . .14
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 7.05. Appointment of Registrar. . . . . . . . . . . . . . . . . . .15
SECTION 7.06. Holders of Receipts Are Parties . . . . . . . . . . . . . . .15
SECTION 7.07. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 7.08. Inspection of Deposit Agreement . . . . . . . . . . . . . . .15
SECTION 7.09. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . .15
Forms of Depositary Shares
Form of Face of Receipt. . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Form of Reverse of Receipt . . . . . . . . . . . . . . . . . . . . . . . . A-3
<PAGE>
DEPOSIT AGREEMENT
-----------------
DEPOSIT AGREEMENT, dated as of [ ], among Merry Land &
Investment Company, Inc., a Georgia corporation, (the "Company"), [
], a [ ] (the "Depositary"), and
the holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [Series __ Preferred Stock]
of the Company with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions,
as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained herein, the
parties hereto agree as follows:
ARTICLE I
Definitions
-----------
The following definitions shall, for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Articles" shall mean the Articles of Amendment of the Company filed
with the Secretary of State of Georgia establishing the Stock as a series
of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean [ ] and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
[ ] of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 5.01 and shall include the Registrar if such Registrar
is not the Depositary.
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the Depositary Receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in
definitive or temporary form and evidencing the number of Depositary Shares
held of record by the record holder of such Depositary Shares.
"Record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's [Series __ Preferred Stock,
without par value].
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer
Surrender and Redemptin of Receipts
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS.
Definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders, with appropriate insertions, modifications and
omissions, as hereinafter provided, if required by any securities exchange
on which the Receipts are listed. Pending the preparation of definitive
Receipts or if definitive Receipts are not required by any securities
exchange on which the Receipts are listed, the Depositary, upon the written
order of the Company or any holder of Stock, as the case may be, delivered
in compliance with Section 2.02, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts
may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary
Receipts at the Depositary's Office or at such other place or places as the
Depositary shall determine, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the Depositary
shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at
the Company's expense and without any charge to the holder therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; PROVIDED, that such
signature may be a facsimile if a Registrar for the Receipts (other than
the Depositary) shall have been appointed and such Receipts are
countersigned by a manual signature of a duly authorized officer of the
Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have
been executed manually by a duly authorized officer of the Depositary or,
if a Registrar for the Receipts (other than the Depositary) shall have been
appointed, by manual or facsimile signature of a duly authorized officer of
the Depositary and countersigned, manually, by a duly authorized officer of
such Registrar. The Depositary shall record on its books each Receipt so
signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the
rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt, which is properly
endorsed or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; PROVIDED, HOWEVER, that until transfer of a Receipt
shall be registered on the books of the Depositary as provided in Section
2.03, the Depositary may, notwithstanding any notice to the contrary, treat
the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distributions of
dividends or other distributions or to any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.02. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF.
Subject to the terms and conditions of this Deposit Agreement, the
Company or any holder of Stock may from time to time deposit shares of the
Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case
may be, directing the Depositary to execute and deliver to, or upon the
written order to, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited
Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation
of the Stock on the books of the Company in the name of the Depositary or
its nominee, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver, to or upon the order of the
person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts
for the whole number of Depositary Shares representing the Stock so
deposited and registered in such name or names as may be requested by such
person or persons. The Depositary shall execute and deliver such Receipt
or Receipts at the Depositary's Office or such other offices, if any, as
the Depositary may designate. Delivery at other offices shall be at the
risk and expense of the person requesting such delivery.
SECTION 2.03. REGISTRATION OF TRANSFER OF RECEIPTS.
Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers of
Receipts upon any surrender thereof by the holder in person or by duly
authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer. Thereupon, the Depositary shall execute a
new Receipt or Receipts evidencing the same aggregate number of Depositary
Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person
entitled thereto.
SECTION 2.04. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF STOCK.
Upon surrender of a Receipt or Receipts at the Depositary's Office or
at such other offices as it may designate for the purpose of effecting a
split-up or combination of such Receipt or Receipts, and subject to the
terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered,
provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously
been called for redemption) withdraw the Stock and all money and other
property, if any, represented thereby by surrendering such Receipt or
Receipts, at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder or to the
person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to
deposit such Stock hereunder or to receive Depositary Shares therefor. If
a Receipt delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at
the same time, in addition to such number of whole shares of Stock and such
money and other property, if any, to be so withdrawn, deliver to such
holder, or upon his order, a new Receipt evidencing such excess number of
Depositary Shares, provided, however, that the Depositary shall not issue
any Receipt evidencing a fractional Depositary Share. Delivery of the
Stock and money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate which, if required by the Depositary
shall be properly endorsed or accompanied by proper instruments of
transfer.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holders
shall execute and deliver to the Depositary a written order so directing
the Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk
and expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other
place as may be designated by such holder.
SECTION 2.05. LIMITATIONS ON EXECUTION AND DELIVERY, TRANFSER,
SURRENDER AND EXCHANGE OF RECEIPTS.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination, surrender or exchange of any Receipt,
the Depositary, any of the Depositary's Agents or the Company may require
payment to it of a sum sufficient for the payment (or, in the event that
the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Sections 3.02 and 5.07, may require the production of
evidence satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations, if any, as
the Depositary or the Company may establish consistent with the provisions
of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the
register of stockholders of the Company is closed, (ii) if any such action
is deemed necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission
or under any provision of this Deposit Agreement or (iii) with the approval
of the Company, for any other reason.
SECTION 2.06. LOST RECEIPTS, ETC.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary in its discretion may execute and deliver a Receipt of like form
and tenor in exchange and substitution for such mutilated Receipt, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt,
upon (i) the filing by the holder thereof with the Depositary of evidence
satisfactory to the Depositary of such destruction or loss or theft of such
Receipt, of the authenticity thereof and of his or her ownership thereof,
(ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it and (iii) the payment of any expense (including fees,
charges and expenses of the Depositary) in connection with such execution
and delivery.
SECTION 2.07. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable
law or regulation, the Company is authorized to destroy all Receipts so
cancelled.
SECTION 2.08. REDEMPTION OF STOCK.
Whenever the Company shall be permitted and shall elect to redeem
shares of Stock in accordance with the provisions of the Articles, it shall
(unless otherwise agreed to in writing with the Depositary) give or cause
to be given to the Depositary not less than 30 days' and not more than 60
days' notice of the date of such proposed redemption of Stock and of the
number of such shares held by the Depositary to be so redeemed and the
applicable redemption price, as set forth in the Articles, which notice
shall be accompanied by Articles from the Company stating that such
redemption of Stock is in accordance with the provisions of the Articles.
On the date of such redemption, provided that the Company shall then have
paid or caused to be paid in full to the Depositary the redemption price of
the Stock to be redeemed, plus an amount equal to any accrued and unpaid
dividends thereon to the date fixed for redemption, in accordance with the
provisions of the Articles, the Depositary shall redeem the number of
Depositary Shares representing such Stock. The Depositary shall mail
notice of the Company's redemption of Stock and the proposed simultaneous
redemption of the number of Depositary Shares representing the Stock to be
redeemed by first class mail, postage prepaid, not less than 20 and not
more than 50 days prior to the date fixed for redemption of such Stock and
Depositary Shares (the "Redemption Date") to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed, at the address
of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice of redemption of Depositary Shares
to one or more such holders nor any defect in any notice of redemption of
Depositary Shares to one or more such holders shall affect the sufficiency
of the proceedings for redemption as to the other holders. The Company
will provide the Depositary with the information necessary for the
Depositary to prepare such notice and each such notice shall state: (i) the
RedemptionDate; (ii) the number of Depositary Shares to be redeemed and, if
less than all the Depositary Shares held by any such holder are to be
redeemed, the number of such Depositary Shares held by such holder to be so
redeemed; (iii) the redemption price; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of
the redemption price; and (v) that dividends in respect of the Stock
represented by the Depositary Shares to be redeemed will cease to accrue on
such Redemption Date. In case less than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be so redeemed shall be
selected by the Depositary by lot or pro rata (as nearly as may be) or by
any other method, in each case, as determined by the Depositary in its sole
discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide
the funds necessary to redeem the Stock evidenced by the Depositary Shares
called for redemption) (i) dividends on the shares of Stock so called for
redemption shall cease to accrue from and after such date, (ii) the
Depositary Shares being redeemed from such proceeds shall be deemed no
longer to be outstanding, (iii) all rights of the holders of Receipts
evidencing such Depositary shares (except the right to receive the
redemption price) shall, to the extent of such Depositary Shares, cease and
terminate, and (iv) upon surrender in accordance with such redemption
notice of the Receipts evidencing any such Depositary Shares called for
redemption (properly endorsed or assigned for transfer, if the Depositary
or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal
to one-[ ] of the redemption price per share paid with respect
to the shares of Stock plus all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have
accumulated on the shares of Stock to be so redeemed and have not
theretofore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any holder of a Receipt may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the
registration of transfer, redemption or exchange, of any Receipt or the
withdrawal or conversion of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed
or such representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
Holders of Receipts shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in Section 5.07.
Registration of transfer of any Receipt or any withdrawal of Stock and all
money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused until any such payment due is
made, and any dividends, interest payments or other distributions may be
withheld or any part of or all the Stock or other property represented by
the Depositary Shares evidenced by such Receipt and not theretofore sold
may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale), and such
dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the
holder of such Receipt remaining liable for any deficiency.
SECTION 3.03. WARRANTY AS TO STOCK.
The Company hereby represents and warrants that the Stock, when
issued, will be duly authorized, validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit
of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. CASH DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on Stock, the Depositary shall, subject to Section 3.01 and
3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of such dividend or distribution as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; PROVIDED,
HOWEVER, that in case the Company or the Depositary shall be required to
withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required by law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. In the event that the calculation of any
such cash dividend or other cash distribution to be paid to any record
holder on the aggregate number of Depositary Receipts held by such holder
results in an amount which is a fraction of a cent, the amount the
Depositary shall distribute to such record holder shall be rounded to the
next highest whole cent; and upon request of the Depositary, the Company
shall pay the additional amount to the Depositary for distribution.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR
PRIVILEGES.
Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts
on the record date fixed pursuant to Section 4.04 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the
opinion of the Depositary such distribution cannot be made proportionately
among such record holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on
account of taxes) the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus
received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed or made available for distribution,
as the case may be, by the Depositary to record holders of Receipts as
provided by Section 4.01 in the case of a distribution received in cash.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such
manner as the Depositary may determine, either by the issue to such record
holders of warrants representing such rights, preferences or privileges or
by such other method as may be approved by the Depositary in its discretion
with the approval of the Company; PROVIDED, HOWEVER, that (i) if at the
time of issue or offer of any such rights, preferences or privileges the
Depositary determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or privileges
available to holders of Receipts by the issue of warrants or otherwise, or
(ii) if and to the extent so instructed by holders of Receipts who do not
desire to exercise such rights, preferences or privileges, then the
Depositary, in its discretion (with approval of the Company, in any case
where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or
the terms of such rights, preferences or privileges permit such transfer,
sell such rights, preferences or privileges at public or private sale, at
such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a distribution received
in cash.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company will file promptly a
registration statement pursuant to such Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take
all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available
to the holders of Receipts any right, preference or privilege to subscribe
for or to purchase any securities unless and until it has received written
notice from the Company that such registration statement shall have become
effective, or that the offering and sale of such securities to such holders
are exempt from registration under the provisions of the Securities Act and
the Company shall have provided to the Depositary an opinion of counsel to
such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required
in order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company will use its reasonable best efforts to
take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING RECORD DATE FOR
HOLDERS OF RECEIPTS.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote or of which holders of Stock
are entitled to notice, or whenever the Depositary and the Company shall
decide it is appropriate, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to or otherwise in accordance with the terms of the
Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting or for any other appropriate reasons.
SECTION 4.05. VOTING RIGHTS.
Upon receipt of notice of any meeting at which the holders of Stock
are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Receipts a notice which shall
contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Stock represented by their respective
Depositary Shares (including an express indication that instructions may be
given to the Depositary to give a discretionary proxy to a person
designated by the Company) and a brief statement as to the manner in which
such instructions may be given. Upon the written request of the holders of
Receipts on the relevant record date, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares
of Stock represented by the Depositary Shares evidenced by all Receipts as
to which any particular voting instructions are received. The Company
hereby agrees to take all reasonable action which may be deemed necessary
by the Depositary in order to enable the Depositary to vote such Stock or
cause such Stock to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will not vote (but, at its
discretion, may appear at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent
of the Stock represented by the Depositary Shares evidenced by such
Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATION, ETC.
Upon any change in par or stated value or liquidation preference,
split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, statutory share exchange or
consolidation affecting the Company or to which it is a party, the
Depositary may in its discretion with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments as are certified
by the Company in the fraction of an interest represented by one Depositary
Share in one share of Stock as may be necessary fully to reflect the
effects of such change in par or stated value or liquidation preference,
split-up, combination or other reclassification of Stock, or of such
recapitalization, reorganization, merger, share exchange or consolidation
and (ii) treat any securities which shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Stock as new
deposited securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case the Depositary may in its
discretion, with the approval of the Company, execute and deliver
additional Receipts or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities. Anything to the contrary herein notwithstanding,
holders of Receipts shall have the right from and after the effective date
of any such change in par or stated value or liquidation preference, split-
up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger, share exchange or consolidation
to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Stock represented thereby only into or for, as
the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Stock represented by such
Receipts might have been converted or for which such Stock might have been
exchanged or surrendered immediately prior to the effective date of such
transaction.
SECTION 4.07. DELIVERY OF REPORTS.
The Depositary shall furnish to holders of Receipts any reports and
communications received from the Company which are received by the
Depositary as the holder of Stock.
SECTION 4.08. LIST OF RECEIPT HOLDERS.
Promptly upon request from time to time by the Company, the Depositary
shall furnish to it a list, as of the most recent practicable date, of the
names, addresses and holdings of Depositary Shares of all record holders of
Receipts. The Company shall be entitled to receive such list twice
annually without charge.
ARTICLE V
The Depositary, the Depositary s
Agents, the Registrar and the Company
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFSER BOOKS BY
THE DEPOSITARY, REGISTRAR.
Upon execution of this Deposit Agreement, the Depositary shall
maintain at the Depositary's Office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange
of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and
exchange of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books during
normal business hours shall be open for inspection by the record holders of
Receipts; PROVIDED that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares
evidenced thereby. If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall be listed
on one or more national stock exchanges, the Depositary will appoint a
Registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares in accordance with any requirements of such exchange.
Such Registrar (which may be the Depositary if so permitted by the
requirements of any such exchange) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the approval
of the Company. If the Receipts, such Depositary Shares or such Stock are
listed on one or more other stock exchanges, the Depositary will, at the
request and at the expense of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of
such Receipts, such Depositary Shares or such Stock as may be required by
law or applicable stock exchange regulation.
The Depositary may from time to time appoint Depositary's Agents to
act in any respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's Agents and
vary or terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company of any such action.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY S AGENTS, THE REGISTRAR OR
THE COMPANY.
Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company shall incur any liability to any holder of any Receipt if
by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, the Depositary's Agent or the
Registrar, by reason of any provision, present or future, of the Company's
Articles of Incorporation or by reason of any act of God or war or other
circumstance beyond the reasonable control of the relevant party, the
Depositary, the Depositary's Agent, the Registrar or the Company shall be
prevented, delayed or forbidden from, or subjected to any penalty on
account of, doing or performing any act or thing which the terms of this
Deposit Agreement provide shall be done or performed, nor shall the
Depositary, any Depositary's Agent, the Registrar or the Company incur
liability to any holder of a Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which
the terms of this Deposit Agreement shall provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement except, in the case
of any such exercise or failure to exercise discretion not caused as
aforesaid, if caused by the negligence or willful misconduct of the party
charged with such exercise or failure to exercise.
SECTION 5.03. OBLIGATION OF THE DEPOSITARY, THE DEPOSITARY S AGENTS,
THE REGISTRAR AND THE COMPANY.
Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement or any Receipt to holders of Receipts other
than for its negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in
expense or liability unless indemnity satisfactory to it against all
expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company shall be liable for any action or any failure to act by it
in reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, the
Registrar and the Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document
believed by it to be genuine and to have been signed or presented by the
proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is
in good faith. The Depositary undertakes, and any Registrar shall be
required to undertake, to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Depositary or any
Registrar. The Depositary will indemnify the Company and hold it harmless
from any loss, liability or expense (including the reasonable costs and
expenses of defending itself) which may arise out of acts performed or
omitted by the Depositary, including when such Depositary acts as
Registrar, or the Depositary's Agents in connection with this Agreement due
to its or their negligence, willful misconduct or bad faith. The
indemnification obligations of the Depositary set forth in this Section
5.03 shall survive any termination of this Agreement and any succession of
any Depositary.
The Depositary, its parent, affiliates or subsidiaries, the
Depositary's Agents, and the Registrar may own, buy, sell and deal in any
class of securities of the Company and its affiliates and in Receipts or
Depositary Shares or become pecuniarily interested in any transaction in
which the Company or its affiliates may be interested or contract with or
lend money to or otherwise act as fully or as freely as if it were not the
Depositary, parent, affiliate or subsidiary or Depositary's Agent or
Registrar hereunder. The Depositary may also act as trustee, transfer
agent or registrar of any of the securities of the Company and its
affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
nor the Registrar, acting as the Depositary Agent or Registrar, as the case
may be, shall be deemed to be an "issuer" of the securities under the
federal securities laws or applicable state securities laws, it being
expressly understood and agreed that the Depositary, any Depositary's Agent
and the Registrar are acting only in a ministerial capacity as Depositary
or Registrar for the Stock.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent nor the Registrar makes any
representation or has any responsibility as to the validity of the
registration statement pursuant to which the Depositary Shares are
registered under the Securities Act, the Stock, the Depositary Shares or
the Receipts (except for its counter-signatures thereon) or any instruments
referred to therein or herein, or as to the correctness of any statement
made therein or herein.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement
of the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the Depositary
Shares or as to any right, title or interest of the record holders of
Receipts in and to the Depositary Shares. The Depositary shall not be
accountable for the use or application by the Company of the Depositary
Shares or the Receipts or the proceeds thereof.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY, APPOINTMENT
OF SUCCESSOR DEPOSITARY.
The Depositary may at any time resign as Depositary hereunder by
delivering notice of its election to do so to the Company, such resignation
to take effect upon the appointment of a successor Depositary and its
acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal
office in the United States of America and having a combined capital and
surplus of at least $50,000,000. If no successor Depositary shall have
been so appointed and have accepted appointment within 60 days after
delivery of such notice, the resigning or removed Depositary may petition
any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute
and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and
deliver all right, title and interest in the Stock and any moneys or
property held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts and such
records, books and other information in its possession relating thereto.
Any successor Depositary shall promptly mail notice of its appointment to
the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without
the execution or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor Depositary may
authenticate the Receipts in the name of the predecessor Depositary or in
the name of the successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS.
The Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof transmit to the record
holders of Receipts, in each case at the addresses recorded in the
Depositary's books, copies of all notices and reports (including without
limitation financial statements) required by law or by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or
the Receipts are listed, to be furnished to the record holders of Receipts
or otherwise determine to furnish. Such transmission will be at the
Company's expense and the Company will provide the Depositary with such
number of copies of such documents as the Depositary may reasonably
request.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY.
The Company shall indemnify the Depositary, any Depositary's Agent and
the Registrar against, and hold each of them harmless from, any loss,
liability or expense (including the reasonable costs and expenses of
defending itself) which may arise out of acts performed or omitted in
connection with this Agreement and the Receipts by the Depositary, any
Registrar or any of their respective agents (including any Depositary's
Agent), except for any liability arising out of negligence, willful
misconduct or bad faith on the respective parts of any such person or
persons. The obligations of the Company set forth in this Section 5.06
shall survive any succession of any Depositary or Depositary's Agent.
SECTION 5.07. CHARGES AND EXPENSES.
The Company shall pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements.
The Company shall pay all charges of the Depositary in connection with the
initial deposit of the Stock and the initial issuance of the Depositary
Shares, all withdrawals of shares of the Stock by owners of Depositary
Shares, and any redemption or exchange of the Stock at the option of the
Company. All other transfer and other taxes and governmental charges shall
be at the expense of holders of Depositary Shares. If, at the request of a
holder of Receipts, the Depositary incurs charges or expenses for which it
is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the Depositary and
any Depositary's Agent hereunder (including, in each case, reasonable fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement between
the Depositary and the Company as to the amount and nature of such charges
and expenses. The Depositary shall present its statement for charges and
expenses to the Company at such intervals as the Company and the Depositary
may agree.
SECTION 5.08. TAX COMPLIANCE.
The Depositary, on its own behalf and on behalf of the Company will
comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Depositary Shares or (ii) the
issuance, delivery, holding, transfer, redemption or exercise of rights
under the Receipts or the Depositary Shares. Such compliance shall
include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to
the appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for
purposes of this Agreement rely on any such direction in accordance with
the provisions of Section 5.03 hereof.
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Company or to its authorized representatives.
ARTICLE VI
Amendment and Termination
SECTION 6.01. AMENDMENT.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable; PROVIDED, HOWEVER, that no such amendment (other than any change
in the fees of any Depositary or Registrar, which shall go into effect not
sooner than three months after notice thereof to the holders of the
Receipts) which shall materially and adversely alter the rights of the
holders of Receipts shall be effective unless such amendment shall have
been approved by the holders of at least a majority of the Depositary
Shares then outstanding. Every holder of an outstanding Receipt at the
time any such amendment becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound
by the Deposit Agreement as amended thereby.
SECTION 6.02. TERMINATION.
This Agreement may be terminated by the Company or the Depositary only
after (i) all outstanding Depositary Shares have been redeemed pursuant to
Section 2.08 or (ii) there shall have been made a final distribution in
respect of the Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed
to the holders of Depositary Receipts pursuant to Sections 4.01 or 4.02, as
applicable.
If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Depositary thereafter shall discontinue the
transfer of Receipts, shall suspend the distribution of dividends to the
holders thereof and shall not give any further notices (other than notice
of such termination) or perform any further acts under this Deposit
Agreement, except that the Depositary shall continue to collect dividends
and other distributions pertaining to Stock, shall sell rights, preferences
or privileges as provided in this Deposit Agreement and shall continue to
deliver the Stock and any money and other property represented by Receipts
upon surrender thereof by the holders thereof. At any time after the
expiration of two years from the date of termination, the Depositary may
sell Stock then held hereunder at public or private sale, at such places
and upon such terms as it deems proper and may thereafter hold the net
proceeds of any such sale, together with any money and other property held
by it hereunder, without liability for interest, for the benefit, pro rata
in accordance with their holdings, of the holders of Receipts that have not
theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under this Deposit Agreement except to
account for such net proceeds and money and other property.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, the Registrar and any Depositary's Agent
under Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. COUNTERPARTS.
This Deposit Agreement may be executed in any number of counterparts,
and by each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original,
but all such counterparts taken together shall constitute one and the same
instrument.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES.
This Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not be deemed
to give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES.
Any and all notices to be given to the Company hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile
transmission confirmed by letter, addressed to the Company at
Merry Land & Investment Company, Inc.
624 Ellis Street
Augusta, Georgia 30901
Attention: Mr. Dorrie E. Green
FAX: 706/722-6756
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or facsimile
transmission confirmed by letter, addressed to the Depositary at the
Depositary's Office, at:
First Union National Bank of Georgia
Corporate Trust Administration
999 Peachtree Street, N.E.
Suite 1100, MC 9094
Atlanta, Georgia 30309
Attention: Ms. Susan Adams
FAX: 404/827-7305
or at any other address of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter, addressed to such
record holder at the address of such record holder as it appears on the
books of the Depositary, or if such holder shall have filed with the
Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case
of a telegram or facsimile transmission) is deposited, postage prepaid, in
a post office letter box. The Depositary or the Company may, however, act
upon any telegram or facsimile transmission received by it from the other
or from any holder of a Receipt, notwithstanding that such telegram or
facsimile transmission shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. APPOINTMENT OF REGISTRAR.
The Company hereby also appoints the Depositary as Registrar in
respect of the Receipts and the Depositary hereby accepts such
appointments.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES
The holders of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW.
THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND
THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF [ ].
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT.
Copies of this Deposit Agreement shall be filed with the Depositary
and the Depositary's Agent and shall be open to inspection during business
hours at the Depositary's Office or respective offices of the Depositary's
Agent, if any, by any holder of a Receipt.
SECTION 7.09. HEADINGS.
The headings of articles and sections in this Deposit Agreement and in
the form of the Receipt set forth in Exhibit A hereto have been inserted
for convenience only and are not to be regarded as a part of this Deposit
Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by
them of delivery of Receipts issued in accordance with the terms hereof.
MERRY LAND & INVESTMENT
COMPANY, INC.
By:____________________
Attest:________________
[SEAL]
[ ]
By:____________________
Attest:________________
[SEAL]
<PAGE>
ANNEX A
-------
TEMPORARY RECEIPT EXCHANGEABLE FOR CERTIFICATE FOR
DEFINITIVE ENGRAVED RECEIPT WHEN [ ]
READY FOR DELIVERY DEPOSITARY SHARES
THE DEPOSITARY SHARES REPRESENTED
BY THIS RECEIPT ARE NOT SAVINGS
ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF,______________ THE TRANSFERABLE
DEPOSITARY HEREUNDER, OR OF ANY DEPOSITARY RECEIPT
BANK OR NON-BANK DEPOSITARY OF This Certificate is
MERRY LAND & INVESTMENT COMPANY, transferable in
INC. AND ARE NOT INSURED BY THE ____________, ____________
SAVINGS ASSOCIATION INSURANCE FUND
OR THE BANK INSURANCE FUND OF THE
FEDERAL DEPOSIT INSURANCE CORPORA-
TION, OR ANY OTHER GOVERNMENT AGENCY CUSIP [ ]
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY
SHARES, EACH DEPOSITARY SHARE REPRE-
SENTING A [ ] INTEREST IN ONE
SHARE OF [SERIES __ PREFERRED STOCK]
MERRY LAND & INVESTMENT COMPANY, INC.
A CORPORATION INCORPORATED
UNDER THE LAWS OF THE STATE OF GEORGIA
[ ], as Depositary (the "Depositary"), hereby certifies that
is the registered owner of ______________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a [ ]
interest in one share of [Series __ Preferred Stock], without par value
(the "Stock"), of Merry Land & Investment Company, Inc., a Georgia
corporation (the "Corporation"), on deposit with the Depositary, subject to
the terms and entitled to the benefits of the Deposit Agreement dated as of
[ ] (the "Deposit Agreement"), between the Corporation and the
Depositary. By accepting this Depositary Receipt, the holder hereof
becomes a party to and agrees to be bound by all the terms and conditions
of the Deposit Agreement. This Depositary Receipt shall not be valid or
obligatory for any purpose or be entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by a duly authorized officer thereof.
Dated:
Countersigned
[ ]
Depositary and Registrar
By:_____________________
Authorized Officer
<PAGE>
MERRY LAND & INVESTMENT COMPANY, INC.
MERRY LAND & INVESTMENT COMPANY, INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPT-HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A
STATEMENT OR SUMMARY OF THE ARTICLES OF AMENDMENT ESTABLISHING THE POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIFIED RIGHTS OF THE SERIES ___ PREFERRED STOCK AND EACH OTHER CLASS OF
PREFERRED STOCK OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO
ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCE AND/OR RIGHTS. ANY SUCH REQUEST SHOULD BE ADDRESSED TO MERRY
LAND & INVESTMENT COMPANY, INC., 624 ELLIS STREET, AUGUSTA, GEORGIA 30901.
_________
The following abbreviations, when used in the inscription on the
face of this Depositary Receipt, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- __________ Custodian __________
(Cust) (Minor)
under Uniform Gifts to Minors Act _______________
(State)
UNIF TRAN MIN ACT -- __________ Custodian (until age ____)
(Cust)
__________ under Uniform Transfers to Minors Act
(Minor)
________________
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
For value received, ___________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
___________________________________________________________________________
___________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING
POSTAL ZIP CODE OF ASSIGNEE
_______________________
______________ Depositary Shares represented by the within Depositary
Receipt, and do(es) hereby irrevocably constitute and appoint
_______________________ Attorney to transfer the said Depositary Shares on
the books of the within named Depositary with full power of substitution in
the premises.
Dated __________________________ Signature:
------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of this Depositary Receipt in
every particular, without alteration or enlargement or any
change whatever.
SIGNATURE GUARANTEE
______________________________
<PAGE>
January 26, 1995
Writer's Direct Dial
706/828-2001
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
Re: SHELF REGISTRATION STATEMENT ON FORM S-3
Ladies & Gentlemen:
We have acted as counsel to Merry Land & Investment Company, Inc., a
Georgia corporation (the "Company"), in connection with the preparation of
the Registration Statement on Form S-3 (the "Registration Statement") filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
the contemplated issuance by the Company from time to time of up to
$400,000,000 aggregate pubic offering price or the equivalent thereof in
one or more foreign currencies or composite currencies of (i) senior or
subordinated debt securities (the "Debt Securities"), which may be issued
pursuant to a Senior Debt Securities Indenture between the Company and
Signet Trust Company, as Trustee (as amended or supplemented, the "Senior
Indenture"), or a Subordinated Debt Securities Indenture between the
Company and Chemical Bank, as Trustee (as amended or supplemented, the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"); (ii) shares of preferred stock, without par value per share
(the "Preferred Stock"), which may be issued in the form of depositary
shares (the "Depositary Shares") evidenced by depositary receipts (the
"Receipts"); (iii) shares of common stock of the Company, without par value
per share (the "Common Stock"); and (iv) warrants to purchase Common Stock
(the "Warrants").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purpose of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
1. When (i) the Registration Statement and any required post-
effective amendment thereto have become effective under the Securities Act;
(ii) the Indentures have been duly executed and delivered; (iii) the terms
of the Debt Securities and of their issuance and sale have been duly
established in conformity with the Indentures relating to the Debt
Securities so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company and
so as to comply with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over the Company; and
(iv) the Debt Securities have been duly executed and authenticated in
accordance with the Indentures relating to the Debt Securities, and duly
issued and sold as contemplated by the Registration Statements and any
prospectus supplement relating thereto, the Debt Securities will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors rights generally,
and (b) general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
2. When (i) the Registration Statement and any required post-
effective amendment thereto have become effective under the Securities Act;
(ii) the Deposit Agreement relating to the Depositary Shares has been duly
executed and delivered; (iii) the terms of the Depositary Shares and of
their issuance and sale have been duly established in conformity with the
Deposit Agreement relating to such Depositary Shares so as not to violate
any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental or
regulatory body having jurisdiction over the Company; (iv) the terms of the
Preferred Stock have been duly and properly authorized for issuance and
Articles of Amendment to the Articles of Incorporation of the Company
classifying the Preferred Stock and setting forth the terms thereof have
been filed; (v) such shares of Preferred Stock have been duly issued and
paid for in the manner contemplated in the Registration Statements and any
prospectus supplement relating thereto; and (vi) the Receipts evidencing
the Depositary Shares are duly issued against the deposit of the Preferred
Stock in accordance with the Deposit Agreement, such Receipts will be
validly issued and will entitle the holders thereof to the rights specified
therein and in the Deposit Agreement.
3. When (i) the Registration Statement and any required post-
effective amendment thereto have become effective under the Securities Act;
(ii) the Warrant Agreement relating to the Warrants (the "Warrant
Agreement") has been duly executed and delivered; (iii) the terms of the
Warrants and of their issuance and sale have been duly established in
conformity with the Warrant Agreement relating to such Warrants so as not
to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any governmental or regulatory body having jurisdiction over the Company;
and (iv) the Warrants have been duly executed and countersigned in
accordance with the Warrant Agreement relating to such Warrants, and issued
and sold in the form and in the manner contemplated in the Registration
Statement and any prospectus supplement relating thereto, such Warrants
will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other
similar laws nor or hereafter in effect relating to or affecting creditors'
rights generally, and (b) general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
4. When (i) the Registration Statement and any required post-
effective amendment thereto have become effective under the Securities Act;
(ii) the terms of the Preferred Stock have been duly and properly
authorized for issuance and Articles of Amendment to the Articles of
Incorporation of the Company classifying the Preferred Stock and setting
forth the terms thereof have been filed; and (iii) such shares of Preferred
Stock have been duly issued and paid for in the manner contemplated in the
Registration Statement and any prospectus supplement relating thereto, such
shares of Preferred Stock will be validly issued, fully paid and
nonassessable.
5. When (i) the Registration Statement and any required post-
effective amendment thereto have become effective under the Securities Act;
(ii) the shares of Common Stock have been duly and properly authorized for
issuance; and (iii) the shares of Common Stock have been duly issued, sold
and delivered as contemplated in the Registration Statement and any
prospectus supplement relating thereto, the shares of Common Stock
(including any Common Stock duly issued (x) upon the exchange or conversion
of any shares of Preferred Stock that are exchangeable or convertible into
Common Stock, (y) upon the exercise of any Warrants exercisable for Common
Stock or (z) upon the exchange or conversion of any Debt Securities that
are exchangeable or convertible into Common Stock), will be validly issued,
fully paid and nonassessable.
We are members of the Bar of the State of Georgia and the foregoing
opinion is limited to the laws of the State of Georgia and the federal laws
of the United States of America.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the heading
"Legal Opinions." In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of
the Securities Act.
Sincerely,
/S/
John W. Gibson
<EXHIBIT 12-A>
MERRY LAND & INVESTMENT COMPANY, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
(Dollars in thousands)
<TABLE>
<CAPTION>
Years ended December 31,
------------------------
1990 1991 1992 1993 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Pretax income $ 5,903 $ 8,791 $ 11,445 $ 26,408 $ 36,985
Fixed charges:
Interest expense $ 22,710 $ 12,804 $ 5,788 $ 5,640 $ 10,394
Amortization of debt -- $ 3 $ 3 $ 122 $ 348
costs -------- -------- -------- -------- --------
Earnings available for
fixed charges and
preferred stock
dividends $ 28,613 $ 21,598 $ 17,236 $ 32,170 $ 47,727
======== ======== ======== ======== ========
Fixed charges:
Interest expense $ 22,710 $ 12,804 $ 5,788 $ 5,640 $ 10,394
Amortization of debt -- $ 3 $ 3 $ 122 $ 348
costs ======== ======== ======== ======== ========
$ 22,710 $ 12,807 $ 5,791 $ 5,762 $ 10,742
Combined fixed charges
and preferred dividends:
Interest expense $ 22,710 $ 12,804 $ 5,788 $ 5,640 $ 10,394
Preferred dividends -- -- -- $ 4,025 $ 7,934
Amortization of debt -- $ 3 $ 3 $ 122 $ 348
costs -------- -------- -------- -------- --------
$ 22,710 $ 12,807 $ 5,791 $ 9,787 $ 18,676
======== ======== ======== ======== ========
Ratio of earnings to
fixed charges 1.26x 1.69x 2.98x 5.58x 4.44x
Ratio of earnings to
combined fixed charges
and preferred dividends 1.26x 1.69x 2.98x 3.29x 2.56x
</TABLE>
<EXHIBIT 23-B>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation
by reference of our reports dated January 27, 1994, January 28, 1994 and
February 16, 1994 included in the reports of Merry Land & Investment
Company, Inc. on Forms 8-K/A filed March 1, 1994 and March 2, 1994, the
incorporation by reference of our reports dated June 17, 1994 and June 27,
1994 included in the report of the Company on Form 8-K filed June 29, 1994,
the incorporation by reference of our report dated September 16, 1994
included in the Company's Form 8-K/A filed September 27, 1994, the
incorporation by reference of our reports dated January 17, 1994 included
in the Company's Form 10-K for the year ended December 31, 1993, and to all
references to our firm included in or made a part of this Registration
Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
January ___, 1995
