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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 26, 1996
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CenterPoint Properties Corporation
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(Exact name of registrant as specified in its charter)
Maryland 1-12630 36-3910279
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(State or other Commission File (I.R.S. Employer
jurisdiction Number Identification
of incorporation) No.)
401 N. Michigan Avenue, Chicago, Illinois 60611
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(Address of principal executive offices)
Registrant's telephone number, including area code (312) 346-5600
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N/A
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(Former name or former address, if changed since last report.)
ITEM 5. OTHER EVENTS.
On June 5, 1995 CenterPoint Properties Corporation (the "Company") filed
a registration statement on Form S-3 with the Securities and Exchange Commission
(the "Commission") relating to the public offering, pursuant to Rule 415 under
the Securities Act of 1933, as amended, of up to an aggregate of $200,000,000
in securities of the Company (the "Registration Statement"). On January 26,
1996, the Commission declared the Registration Statement, as amended by
Post-Effective Amendment No. 1, effective. (The Registration Statement and
definitive prospectus contained therein are collectively referred to as the,
"Prospectus.")
The Company is filing on June 28, 1996 a supplement to the Prospectus,
dated June 26, 1996, relating to the issuance and sale of up to 3,450,000 shares
of the Company's common stock, $.001 par value per share (the "Common Stock
Supplement"). In connection with the
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filing of the Common Stock Supplement with the Commission, the Company is filing
certain exhibits as part of this Form 8-K. See "Item 7. Financial Statements
and Exhibits."
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1 Form of Underwriting Agreement between the Company and Lehman
Brothers Inc. dated June 26, 1996, with respect to the issuance
and sale by the Company of up to 3,450,000 shares of the
Company's common stock.
5 Opinion Letter of Coffield Ungaretti & Harris regarding the
validity of the common stock.
8 Opinion Letter of Coffield Ungaretti & Harris regarding tax
matters.
23.1 Consent of Coffield Ungaretti & Harris (included as part of
Exhibit 5)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CENTERPOINT PROPERTIES CORPORATION
(Registrant)
Dated: June 26, 1996 By: /s/ Paul S. Fisher
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Its: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
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EXHIBIT 1
FORM OF
UNDERWRITING AGREEMENT BETWEEN
THE COMPANY AND LEHMAN BROTHERS INC.
DATED JUNE 26, 1996
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3,000,000 Shares
CENTERPOINT PROPERTIES CORPORATION
UNDERWRITING AGREEMENT
Common Stock, $.001 par value per share
June 26, 1996
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285
Dear Sirs:
CenterPoint Properties Corporation, a Maryland corporation (the
"Company"), proposes to sell 3,000,000 shares (the "Firm Stock") of the
Company's Common Stock, par value $.001 per share (the "Common Stock"). In
addition, the Company proposes to grant to you (the "Underwriter") an option to
purchase up to an additional 450,000 shares of Common Stock on the terms and for
the purposes set forth in Section 2 (the "Option Stock"). The Firm Stock and
the Option Stock, if purchased, are hereinafter collectively called the "Stock."
This is to confirm the agreement concerning the purchase of the Stock from the
Company by the Underwriter.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3, and amendments
thereto, with respect to Common Stock and Securities Warrants (the "Shelf
Securities") to be issued from time to time have (i) been prepared by the
Company in conformity with the requirements of the Securities Act of 1933 (the
"Securities Act") and the rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") promulgated
thereunder, (ii) been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act. Copies of such registration
statement and the amendments thereto have been delivered by the Company to you.
As used in this Agreement, "Effective
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Time" means the date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the Effective
Time. The registration statement as amended to the date of this Agreement is
hereinafter referred to as the "Registration Statement" and the related
prospectus covering the Shelf Securities in the form first used to confirm
sales of the Stock is hereinafter referred to as the "Basic Prospectus." The
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Stock in the form first filed pursuant to Rule 424 is
hereinafter referred to as the "Prospectus." Any reference in this Agreement
to the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the
Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein. The Commission has
not issued any order preventing or suspending the use of any Preliminary
Prospectus.
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
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further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange Act as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary or make the statements therein
not misleading; provided, however, no representation or warranty is made as to
any statements or omissions made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein.
(c) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statement and any amendment thereto) and
as of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) 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; PROVIDED that no representation or warranty
is made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein.
(d) The Company and each of its subsidiaries have been duly
incorporated and, except for CP Financing Trust, a Maryland corporation,
which is not currently in good standing under the laws of the state of
Maryland, are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have
all power and
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authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations, except for CP Financing
Trust, a Maryland corporation.
(e) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description thereof contained in the Prospectus;
and all of the issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued and are fully paid and non-
assessable and except as set forth in the Prospectus and, except for the shares
of capital stock of CenterPoint Realty Services Corporation, an Illinois
corporation ("CRS Corporation"), and its subsidiaries, are owned directly or
indirectly by the Company as described in the Prospectus, free and clear of all
liens, encumbrances, equities or claims.
(f) The unissued shares of the Stock to be issued and sold by
the Company to the Underwriter hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable; and the Stock will
conform to the descriptions thereof contained in the Prospectus.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms; the
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action and did not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or assets of the Company or any
of its subsidiaries pursuant to any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which
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the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
did or will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries 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 subsidiaries or any of
their properties or assets; except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase and
distribution of the Stock by the Underwriter, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body was or is required for the execution, delivery
and performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby.
(h) Except as disclosed in the Registration Statement, there are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company or any subsidiary of the
Company to file a registration statement under the Securities Act with respect
to any securities of the Company or any subsidiary of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(i) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood, earthquake or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
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involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus.
(j) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved.
(k) Coopers & Lybrand, who have certified certain financial
statements of the Company and whose report appears in the Prospectus, are
independent public accountants as required by the Securities Act and the Rules
and Regulations.
(l) (i) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the Prospectus
or such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; (ii) all real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries; (iii) all liens, charges,
encumbrances, claims, or restrictions on or affecting the properties and assets
of any of the Company or its subsidiaries which are required to be disclosed in
the Prospectus are disclosed therein; (iv) neither the Company nor any of its
subsidiaries is in default under any of the leases pursuant to which any of the
Company or its subsidiaries leases its properties and neither the Company nor
any of its subsidiaries knows of any event which, but for the passage of time or
the giving of notice, or both, would constitute a default
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under any of such leases; (v) except as described in the Prospectus, no
tenant under any of the leases pursuant to which any of the Company or its
subsidiaries leases properties has an option or right of first refusal to
purchase the premises under such lease; (vi) each of the properties of any of
the Company or its subsidiaries complies with all applicable codes and zoning
laws and regulations, except for such failures to comply which would not
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries; and (vii) neither
the Company nor any of its subsidiaries has knowledge of any pending or
threatened condemnation, zoning change, or other proceeding or action that
will in any manner affect the size of, use of, improvements on, construction
on or access to the properties of any of the Company or its subsidiaries.
(m) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries.
(n) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of their respective businesses
and have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of conflict
with, any such rights of others.
(o) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, might have a
material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company's knowledge, no such proceedings
are
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threatened or contemplated by governmental authorities or threatened by
others.
(p) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have not
been described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
(q) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers or stockholders of the
Company on the other hand, which is required to be described in the Prospectus
which is not so described.
(r) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which might be expected to have
a material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries.
(s) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(t) The Company has filed all federal, state and local income
and franchise tax returns required
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to be filed through the date hereof and has paid all taxes due thereon, and
no tax deficiency has been determined adversely to the Company or any of its
subsidiaries, which has had (nor does the Company have any knowledge of any
tax deficiency which, if determined adversely to the Company or any of its
subsidiaries, might have) a material adverse effect on the consolidated
financial condition, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries.
(u) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed in
the Prospectus, the Company has not (i) issued or granted any securities, except
for 5,000 shares of Common Stock issued to John Gates pursuant to the exercise
of stock options, shares of Common Stock issued upon conversion of the Company's
8.22% Convertible Subordinated Debentures due January 15, 2004 (the
"Debentures") and Class B Common Stock issued upon conversion of Series A
Preferred Stock, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred in the
ordinary course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any dividend on its capital
stock except for a dividend declared on May 16, 1996 payable on July 8, 1996 to
holders of record on June 14, 1996.
(v) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(w) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material respect,
and no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance
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or observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of
its properties or assets is subject or (iii) is in violation in any material
respect of any law, ordinance, governmental rule, regulation or court decree
to which it or its property or assets may be subject or has failed to obtain
any material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the
conduct of its business.
(x) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(y) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of any material
by the Company or any of its subsidiaries or, to the Company's knowledge, any of
their predecessors in interest at, upon or from any of the properties now or
previously owned or leased by the Company or its subsidiaries or any of their
predecessors in interest in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action damages or the modification or cessation of any activity of the Company
or any of its subsidiaries under any applicable law, common law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation,
remedial action, damages, modification or cessation which would not have, singly
or in the aggregate with all such violations, remedial actions, damages,
modifications or cessations, a material adverse effect on the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries; and there has been no material spill,
dis-
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charge, leak, emission, injection, escape, dumping, migration or release of
any kind onto such property or into the environment surrounding such property
except for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have, singly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries.
(z) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission promulgated thereunder.
(aa) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust under the Code,
and its present and contemplated method of operation does and will enable it to
meet the requirements for taxation as a real estate investment trust ("REIT")
under the Code for the year ended December 31, 1994 and subsequent taxable
years.
(ab) Each of the agreements relating to the acquisition of
properties by the Company has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or inequity) and the
execution, delivery and performance of such agreements do not constitute a
breach of, or default under, the charter or by laws of the Company or any
material contract, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which any of them or any of their properties may
be bound or any law, administrative regulation or administrative or court
decree.
(ac) Each of the Company and its subsidiaries has title
insurance on all properties and assets
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described in the Prospectus as owned by such party in an amount at least
equal to the greater of (a) the cost of acquisition of such property or
assets and (b) the cost of construction of the improvements located on such
properties.
2. PURCHASE OF THE STOCK BY THE UNDERWRITER. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the Underwriter and
the Underwriter agrees to purchase at a price of $23 1/4 per share the shares of
Firm Stock.
In addition, the Company grants to the Underwriter an option to
purchase up to 450,000 shares of the Option Stock at the purchase price set
forth above. Such option is granted solely for the purpose of covering over-
allotments in the sale of Firm Stock and is exercisable as provided in Section 4
hereof.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
3. OFFERING OF STOCK BY THE UNDERWRITER. Upon authorization by the
Underwriter of the release of the Stock, the Underwriter proposes to offer the
Stock for sale upon the terms and conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock shall be made at such place as shall be determined by
agreement between the Underwriter and the Company at 10:00 A.M., New York City
time, on the fourth full business day following the date of this Agreement or at
such other date as shall be determined by agreement between the Underwriter and
the Company. This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, the Company shall deliver or cause
to be delivered certificates representing the Firm Stock to the Underwriter
against payment to or upon the order of the Company of the purchase price by
certified or official bank check or checks payable in New York Clearing House
(next-day)
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funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of the Underwriter hereunder. Upon delivery, the Firm Stock shall be
registered in such names and in such denominations as the Underwriter shall
request in writing not less than two full business days prior to the First
Delivery Date. For the purpose of expediting the checking and packaging of
the certificates for the Firm Stock, the Company shall make the certificates
representing the Firm Stock available for inspection by the Underwriter in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the First Delivery Date.
At any time or from time to time on or before the 30th day after the
date of this Agreement (or, if such 30th day shall be a Saturday, Sunday or
holiday, on the next business day) the option granted in Section 2 may be
exercised by written notice being given to the Company by the Underwriter. Such
notice shall set forth the aggregate number of shares of Option Stock as to
which the option is being exercised, the names in which the shares of Option
Stock are to be registered, the denominations in which the shares of Option
Stock are to be issued and the date and time, as determined by the Underwriter,
when the shares of Option Stock are to be delivered, PROVIDED, HOWEVER, that
this date and time shall not be earlier than the First Delivery Date nor earlier
than the third business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The dates and times the shares of Option
Stock are delivered are sometimes referred to as the "Second Delivery Date" and
the First Delivery Date and the Second Delivery Date are sometimes each referred
to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at such
other place as shall be determined by agreement between the Underwriter and the
Company at 10:00 A.M., New York City time, on the Second Delivery Date. On the
Second Delivery Date, the Company shall deliver or cause to be delivered the
certificates representing the Option Stock to the Underwriter against payment to
or upon the order of the Company of the purchase price by certified or official
bank check or checks payable in New York Clearing House (next-day) funds.
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Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of the
Underwriter hereunder. Upon delivery, the Option Stock shall be registered
in such names and in such denominations as the Underwriter shall request in
the aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Company shall make
the certificates representing the Underwriter in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
Second Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statement or to the
Prospectus except as permitted herein; to advise the Underwriter, promptly after
it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Underwriter with copies thereof; to advise the Underwriter, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the Stock for offering
or sale in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly to the Underwriter and to counsel for
the Underwriter a signed copy of the Registration Statement as originally filed
with the
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<PAGE>
Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall request: (i) conformed copies of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement and
the computation of per share earnings) and (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the Effective Time in connection with the offering or sale of the Stock and if
at such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary in the opinion of counsel to the Underwriter during such
same period to amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Underwriter and, upon its request, to prepare and
furnish without charge to the Underwriter and to any dealer in securities as
many copies as the Underwriter may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case the Underwriter is
required to deliver a prospectus in connection with sales of any of the Stock at
any time nine months or more after the Effective Time, upon the request but at
the expense of the Underwriter, to prepare and deliver to the Underwriter as
many copies as the Underwriter may request of an amended or supplemented
Prospectus complying with section 10(a)(3) of the Securities Act;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Underwriter, be required by the
Securities Act or requested by the Commission;
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<PAGE>
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or (ii) any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Underwriter and counsel for the Underwriter and obtain the consent of the
Underwriter to the filing;
(f) As soon as practicable after the Effective Date, but in any
event not later than 45 days after the end of its fiscal quarter in which the
first anniversary date of the Effective Date occurs, to make generally available
to the Company's security holders and to deliver to the Underwriter an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriter copies of all materials furnished by the Company to
its shareholders and all public reports and all reports and financial statements
furnished by the Company to the principal national securities exchange upon
which the Common Stock may be listed pursuant to requirements of or agreements
with such exchange or to the Commission pursuant to the Exchange Act or any rule
or regulation of the Commission thereunder;
(h) Promptly from time to time, to take such action as the
Underwriter may reasonably request to qualify the Stock for offering and sale
under the securities laws of such jurisdictions as the Underwriter may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Stock; except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation, or to execute a general consent to service of process;
(i) For a period of 90 days from the date of the prospectus
supplement relating to the Stock, not to offer for sale, sell or otherwise
dispose of, directly or indirectly, any shares of Common Stock (other than the
1,500,000 shares of Common Stock issuable pursuant to the
16
<PAGE>
Company's Stock Option Plan (the "Plan"), 150,000 shares of Common Stock
issuable pursuant to the restricted stock incentive plan, 75,000 shares of
Common Stock issuable pursuant to the directors' stock plan and the shares of
Common Stock issuable upon conversion of the Debentures) or sell or grant
options, rights or warrants with respect to any shares of Common Stock (other
than the grant of options pursuant to the Plan), otherwise than in accordance
with this Agreement or as contemplated in the Prospectus or without the prior
written consent of the Underwriter;
(j) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus;
(k) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment company"
within the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder;
(l) During the period of 180 days commencing on the date hereof,
the Company will not, directly or indirectly, take any action designed to or
which will constitute or which might reasonably be expected to cause or result
in the manipulation or stabilization of the price of the Common Stock; and
(m) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long
as the delivery of a prospectus is required in connection with the offering or
sale of the Stock.
(n) To take such actions as may be required such that CP
Financing Trust will be in good standing under the laws of the State of
Maryland as soon as practicable.
6. EXPENSES. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the
17
<PAGE>
Registration Statement and any amendments and exhibits thereto; (c) the costs
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus, all as provided in this Agreement;
(d) the costs of reproducing and distributing this Agreement; (e) the costs
of distributing the terms of the agreement relating to the organization of
the underwriting syndicate and selling group to the members thereof by mail,
telex or other means of communication; (f) the filing fees incident to
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of sale of the Stock; (g) any applicable listing
or other fees; (h) the fees and expenses of qualifying the Stock under the
securities laws of the several jurisdictions as provided in Section 5(h) and
of preparing, printing and distributing a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriter); and (i) all other
costs and expenses incident to the performance of the obligations of the
Company under this Agreement; PROVIDED that, except as provided in this
Section 6, Section 8 and Section 10, the Underwriter shall pay their own
costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Stock which they may sell and the expenses of
advertising any offering of the Stock made by the Underwriter.
7. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
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<PAGE>
(b) The Underwriter shall not have been advised by the
Company nor shall it have discovered and disclosed to the Company on or prior
to such Delivery Date that the Registration Statement or the Prospectus or
any amendment or supplement thereto contains an untrue statement of a fact
which, in your opinion or in the opinion of Skadden, Arps, Slate, Meagher &
Flom, counsel for the Underwriter, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Stock, the
Registration Statement and the Prospectus, and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be satisfactory
in all respects to counsel for the Underwriter, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Coffield Ungaretti & Harris shall have furnished to the
Underwriter its written opinion, as counsel to the Company, addressed to the
Underwriter and dated such Delivery Date, in form and substance satisfactory to
the Underwriter, to the effect that:
(i) The Company and each of its
subsidiaries have been duly incorporated and
are validly existing as corporations in good
standing under the laws of their respective
jurisdictions of incorporation, are duly
qualified to do business and are in good
standing as foreign corporations in each
jurisdiction in which their respective
ownership or lease of property or the conduct
of their respective businesses requires such
qualification and have all power and authority
necessary to own or hold their respective
properties and conduct the businesses in which
they are engaged;
(ii) The Company has an
authorized capitalization as set forth in the
Prospectus, and all of the issued shares of
capital stock of the Company (including the
shares
19
<PAGE>
of Stock being delivered on such
Delivery Date) have been duly and validly
authorized and issued, are fully paid and
non-assessable and conform to the description
thereof contained in the Prospectus; and all of
the issued shares of capital stock of each
subsidiary of the Company have been duly and
validly authorized and issued and are fully paid,
non-assessable and, except for the shares of capital
stock of CRS Corporation and its subsidiaries, are
owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or
claims;
(iii) Except as described in the
Prospectus, there are no preemptive or other
rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any
shares of the Stock pursuant to the Company's
charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) To the best of such
counsel's knowledge, (A) there are no legal or
governmental proceedings pending to which the
Company or any of its subsidiaries is a party
or of which any property or assets of the
Company or any of its subsidiaries is the
subject which, if determined adversely to the
Company or any of its subsidiaries, might have
a material adverse effect on the consolidated
financial position, stockholders' equity,
results of operations, business or prospects of
the Company and its subsidiaries, and (B) no
such proceedings are threatened or contemplated
by governmental authorities or threatened by
others;
(v) The Registration Statement
was declared effective under the Securities Act
as of the date and time specified in such
opinion, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified
in such opinion on the date specified therein
and no stop order suspending the effectiveness
of the Registration Statement has been issued
and, to such counsel's knowledge, no proceeding
20
<PAGE>
for that purpose is pending or threatened by
the Commission;
(vi) The documents incorporated
by reference in the Prospectus, when they be-
came effective or were filed with the
Commission, as the case may be, conformed in
all material respects to the requirements of
the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of
the Commission thereunder, and none of such
documents contained an untrue statement of a
material fact or omitted to state a material
fact required to be stated therein or necessary
to make the statements therein not misleading;
(vii) The Registration Statement
and the Prospectus and any further amendments
or supplements thereto made by the Company
prior to the Delivery Date (other than the
financial statements and related schedules
therein, as to which such counsel need express
no opinion) comply as to form in all material
respects with the requirements of the
Securities Act and the Rules and Regulations;
(viii) The statements contained
in the Prospectus under the captions,
"Description of Capital Stock", "Description of
Securities Warrants", "Certain Provisions of
Maryland Law and the Company's Charter and
Bylaws", "Federal Income Tax Considerations
Relating to the Company's REIT Election" and
"Taxation of Stockholders", in each case
insofar as they constitute summaries of legal
matters, documents or proceedings, constitute a
fair summary thereof and the opinion of such
counsel filed as Exhibit 8 to the Registration
Statement is confirmed and the Underwriter may
rely upon such opinion as if it were addressed
to them;
(ix) To the best of such
counsel's knowledge, there are no contracts or
other documents which are required to be
described in the Prospectus or filed as
exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations
which have
21
<PAGE>
not been described or filed as
exhibits to the Registration Statement or
incorporated therein by reference as permitted
by the Rules and Regulations;
(x) This Agreement has been duly
authorized, executed and delivered by the
Company;
(xi) The issue and sale of the
shares of Stock being delivered on such
Delivery Date by the Company and the compliance
by the Company and its subsidiaries with all of
the provisions of this Agreement and the
consummation of the transactions contemplated
hereby have been duly authorized by all
necessary corporate action and did not and will
not conflict with or result in a breach or
violation of any of the terms or provisions of,
or constitute a default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any of the properties or
assets of the Company or any of its
subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or
other agreement or instrument known to such
counsel to which the Company or any of its
subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which
any of the property or assets of the Company or
any of its subsidiaries is subject, nor did or
will such actions result in any violation of
the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any
statute or any order, rule or regulation known
to such counsel of any court or governmental
agency or body having jurisdiction over the
Company or any of its subsidiaries or any of
their properties or assets; and, except for the
registration of the Stock under the Securities
Act and such consents, approvals,
authorizations, registrations or qualifications
as may be required under the Exchange Act and
applicable state securities laws in connection
with the purchase and distribution of the Stock
by the Underwriter, no consent, approval,
authorization or order of, or filing or
registration with, any such court
22
<PAGE>
or governmental agency or body was or is required
for the execution, delivery and performance of
this Agreement by the Company and the
consummation of the transactions contemplated
hereby;
(xii) Except as disclosed in the
Registration Statement, to the best of such
counsel's knowledge, there are no contracts,
agreements or understandings between the
Company and any person granting such person the
right to require the Company to file a
registration statement under the Securities Act
with respect to any securities of the Company
owned or to be owned by such person or to
require the Company to include such securities
in the securities registered pursuant to the
Registration Statement or in any securities
being registered pursuant to any other
registration statement filed by the Company
under the Securities Act;
(xiii) Neither the Company nor
any subsidiary is an "investment company"
within the meaning of such term under the
United States Investment Company Act of 1940
and the rules and regulations of the Commission
thereunder;
In rendering such opinion, such counsel may rely as to matters of Maryland
law on the opinion of Gordon, Feinblatt, Rothman, Hoffberger & Hollander,
which opinion shall be in form and substance satisfactory to counsel for the
Underwriter, PROVIDED that such counsel shall state that it believes that
both the Underwriter and it are justified in relying upon such opinion. Such
counsel shall also have furnished to the Underwriter a written statement,
addressed to the Underwriter and dated such Delivery Date, in form and
substance reasonably satisfactory to the Underwriter, to the effect that no
facts have come to the attention of such counsel which lead it to believe
that the Registration Statement, as of the Effective Date and as of such
Delivery Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus, as of
such Delivery Date and at the time such Prospectus was issued, contains any
untrue
23
<PAGE>
statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) Skadden, Arps, Slate, Meagher & Flom shall have furnished to
the Underwriter its written opinion, as counsel to the Underwriter, addressed to
the Underwriter and dated such Delivery Date, in form and substance satisfactory
to the Underwriter. In giving its opinion, Skadden, Arps, Slate, Meagher & Flom
may rely as to matters of Maryland law on the opinion of Gordon, Feinblatt,
Rothman, Hoffberger & Hollander, which opinion shall be in form and substance
satisfactory to counsel for the Underwriter. Skadden, Arps, Slate, Meagher &
Flom shall also have furnished to the Underwriter a written statement, addressed
to the Underwriter and dated such Delivery Date, in form and substance
satisfactory to the Underwriter, to the effect that no facts have come to the
attention of such counsel which lead it to believe that the Registration
Statement, as of the Effective Date and as of such Delivery Date, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus, as of such Delivery Date and at the time
such Prospectus was issued, contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(f) The Company shall have furnished to the Underwriter a letter
(the "bring-down letter") of Coopers & Lybrand, addressed to the Underwriter and
dated such Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of
the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given or incorporated by reference in the Prospectus, as of a
date not more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the
24
<PAGE>
financial information and other matters covered by its letter (the "initial
letter") delivered to the Underwriter concurrently with the execution of this
Agreement and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(g) The Company shall have furnished to the Underwriter a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations,
warranties and agreements of the Company in
Section 1 are true and correct as of such
Delivery Date; the Company has complied with
all its agreements contained herein; and the
conditions set forth in Sections 7(a) and 7(h)
have been fulfilled;
(ii) No stop order suspending
the effectiveness of the Registration Statement
has been issued and, to the best of each such
officer's knowledge, no proceeding for that
purpose is pending or threatened by the
Commission;
(iii) All filings required by
Rule 424(b) of the Rules and Regulations have
been made; and
(iv) They have carefully
examined the Registration Statement and the
Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and
Prospectus did not include any untrue statement
of a material fact and did not omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and (B) since the Effective Date no
event has occurred which should have been set
forth in a supplement or amendment to the
Registration Statement or the Prospectus which
has not been so set forth.
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the
25
<PAGE>
Prospectus any loss or interference with its business from fire, explosion,
flood, earthquake or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; (ii) since
such date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, or (iii) trading in the Common Stock has
not been suspended by the Commission or the New York Stock Exchange, the
effect of which, in any such case described in clause (i), (ii) or (iii), is,
in the judgment of the Underwriter, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or minimum
prices shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions
on the financial markets in the United States shall be such) as, in the case
of clauses (i) through (iv), to make it, in the judgment of the Underwriter,
impractical or inadvisable to proceed with the public offering or delivery of
the Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
26
<PAGE>
(j) The New York Stock Exchange, Inc. shall have approved he
Stock for listing, subject only to official otice of issuance.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance satisfactory to
counsel for the Underwriter. The Company shall furnish to you conformed
copies of such opinions, certificates, letters and other documents in such
number as you shall reasonably request. If any of the conditions specified
in this Section 7 shall not have been fulfilled when and as required by this
Agreement, the Agreement and all obligations of the Underwriter hereunder may
be cancelled at, or at any time prior to, each Delivery Date, by you. Any
such cancellation shall be without liability of the Underwriter to the
Company. Notice of such cancellation shall be given the Company in writing,
or by telegraph or telephone and confirmed in writing.
8. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Securities Act from and against any loss, claim, damage or
liability, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which the Underwriter or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in 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 shall reimburse the Underwriter and each such controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Underwriter or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that the Company
shall not be
27
<PAGE>
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise
have to any Underwriter or to the controlling person of the Underwriter.
(b) The Underwriter shall indemnify and hold harmless the
Company, each of its directors (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company), each of its officers who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in 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, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which the Underwriter may
28
<PAGE>
otherwise have to the Company or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have under this Section 8 except to the
extent it has been materially prejudiced by such failure and, PROVIDED
FURTHER, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party otherwise
than under this Section 8. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory
to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the Underwriter
shall have the right to employ counsel to represent jointly the Underwriter
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriter against
the Company under this Section 8 if, in the reasonable judgment of the
Underwriter, it is advisable for the Underwriter and controlling persons to
be jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof,
29
<PAGE>
(i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriter on the
other from the offering of the Stock or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 8(c), in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriter on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriter on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Stock purchased under this Agreement (before deducting
expenses) received by the Company bear to the amount equal to the difference
between the aggregate price for which the Underwriter resells the Stock and
the total net proceeds from the offering of the Stock purchased under this
Agreement (before deducting expenses) received by the Company. The relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriter, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriter agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 8(d) shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any
30
<PAGE>
such action or claim. Notwithstanding the provisions of this Section 8(d),
the Underwriter shall not be required to contribute any amount in excess of
the amount by which the total price at which the Stock underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which the Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The Underwriter confirms that the statements with respect to
the public offering of the Stock set forth on the cover page of, and under the
caption "Underwriting" in, the Prospectus are correct and constitute the only
information furnished in writing to the Company by or on behalf of the
Underwriter specifically for inclusion in the Registration Statement and the
Prospectus.
9. TERMINATION. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the Company
prior to delivery of and payment for the Firm Stock, if, prior to that time, any
of the events described in Sections 7(h) or 7(i) shall have occurred or if the
Underwriter shall decline to purchase the Stock for any reason permitted under
this Agreement.
10. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If (a) the Company
shall fail to tender the Stock for delivery to the Underwriter unless for any
reason permitted under this Agreement or (b) the Underwriter shall decline to
purchase the Stock for any reason permitted under this Agreement (including the
termination of this Agreement pursuant to Section 9), the Company shall
reimburse the Underwriter for the fees and expenses of their counsel and for
such other out-of-pocket expenses as shall have been incurred by it in
connection with this Agreement and the proposed purchase of the Stock, and upon
demand the Company shall pay the full amount thereof to the Underwriter.
31
<PAGE>
11. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., 3 World Financial
Center, New York, New York 10285-1100, Attention: Syndicate Registration
Department (Fax: 212-528-8822).
(b) if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: President (Fax: 312-456-7696).
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriter, the Company, and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriter contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
13. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriter contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Stock and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
32
<PAGE>
14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of New York.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
33
<PAGE>
If the foregoing correctly sets forth the agreement between the
Company and the Underwriter, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CENTERPOINT PROPERTIES
CORPORATION
By /s/ Paul S. Fisher
-----------------------
Name: Paul S. Fisher
Title: Executive Vice
President
Accepted:
LEHMAN BROTHERS INC.
By /s/ Michael W. Reid
-------------------------
Name: Michael W. Reid
Title: Senior Vice
President
34
<PAGE>
EXHIBIT 5
OPINION LETTER
OF
COFFIELD UNGARETTI & HARRIS
REGARDING THE VALIDITY OF THE COMMON STOCK
<PAGE>
COFFIELD UNGARETTI & HARRIS
3500 Three First National Plaza
Chicago, Illinois 60602
Tel: (312) 977-4400
Fax: (312) 977-4405
June 26, 1996
CenterPoint Properties Corporation
401 North Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
We have acted as counsel to CenterPoint Properties Corporation, a Maryland
corporation (the "Company"), in connection with the preparation of (i) a
Registration Statement on Form S-3 of the Company filed with the Securities and
Exchange Commission (the "Commission") on June 5, 1995, as amended by Amendment
No. 1 filed with the Commission on July 25, 1995 and as amended by Post-
Effective Amendment No. 1 filed with the Commission on January 23, 1996 (as
amended, the "Registration Statement"), relating to the registration, under Rule
415 of the Securities Act of 1933, as amended (the "Securities Act"), of up to
$200,000,000 in securities of the Company; and (ii) a supplement dated June 26,
1996 to the Registration Statement, relating to the issuance and sale of up to
3,450,000 shares of the Company's common Stock, $.001 par value per share (the
"Common Stock Supplement" and "Common Stock," respectively).
In this regard, we have examined:
a. the amended and restated articles of incorporation, by-laws and
organizational documents of the Company;
b. certain resolutions adopted by the Company's Board of Directors;
c. the Registration Statement and Common Stock Supplement; and
d. such other documents as we have deemed relevant for the purpose of
rendering the opinions set forth herein, including certifications as to
certain matters of fact by responsible officers of the Company and by
governmental authorities.
We have assumed the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies.
Based upon the foregoing, we are of the opinion that the shares of Common Stock
being sold pursuant to the Registration Statement and Common Stock Supplement,
if
<PAGE>
CenterPoint Properties Corporation
June 26, 1996
Page -2-
and when issued under the circumstances contemplated by the Common Stock
Supplement, will be validly issued, fully paid and nonassessable.
We are members of the Bar of the State of Illinois. Our opinion is limited to
the laws of the State of Illinois, the General Corporation Law of the State of
Maryland and the general laws of the United States of America. Insofar as our
opinion relates to matters of Maryland law, we have relied on the opinion dated
the date hereof of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, a
copy of which is attached hereto.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to the reference to our firm in the Prospectus that is part of the
Registration Statement. By giving such consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
/s/ Coffield Ungaretti & Harris
Coffield Ungaretti & Harris
<PAGE>
LAW OFFICES
GORDON, FEINBLATT, ROTHMAN, HOFFBERGER & HOLLANDER, LLC
THE GARRETT BUILDING
233 EAST REDWOOD STREET
BALTIMORE, MARYLAND 21202-3332
410-576-4000
------------
TELEX 908041 BAL
FAX 410-576-4246
June 26, 1996
Coffield Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602-4282
Ladies and Gentlemen:
We have acted as special Maryland counsel to your firm in
connection with your opinion of even date herewith to CenterPoint Properties
Corporation, a Maryland corporation (the "Company"), in connection with the
preparation of (i) a Registration Statement on Form S-3 of the Company filed
with the Securities and Exchange Commission (the "Commission") on June 5,
1995 and as amended by Amendment No. 1 filed with the Commission on July 25,
1995 and as amended by Post-Effective Amendment No. 1 filed with the
Commission on January 23, 1996 (as amended, the "Registration Statement"),
relating to the registration, under Rule 415 of the Securities Act of 1933,
as amended (the "Securities Act"), of up to $200,000,000 in securities of the
Company; and (ii) a supplement dated June 26, 1996 to the Registration
Statement relating to the issuance and sale of 3,450,000 shares of the
Company's common stock, $.001 par value per share (the "Common Stock
Supplement") and ("Common Stock"), respectively.
In this connection, we have examined:
a. the amended and restated articles of incorporation, by-laws and
organizational documents of the Company;
b. certain resolutions adopted by the Company's Board of Directors;
c. the Registration Statement and Common Stock Supplement and;
d. such other documents as we have deemed relevant for the purpose
of rendering the opinions set forth herein.
<PAGE>
Coffield Ungaretti & Harris
June 26, 1996
Page 2
We have assumed the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents submitted to
us as copies.
Based upon the foregoing, we are of the opinion that the shares of
Common Stock being sold pursuant to the Registration Statement and Common Stock
Supplement, if and when issued under the circumstances contemplated by the
Common Stock Supplement, will be validly issued, fully paid and nonassessable.
We are members of the Bar of the State of Maryland and our opinion is
limited to the laws of the State of Maryland.
Very truly yours,
GORDON, FEINBLATT, ROTHMAN,
HOFFBERGER & HOLLANDER, LLC
By: /s/ Edward E. Obstler
--------------------------
Edward E. Obstler, Member
<PAGE>
EXHIBIT 8
OPINION LETTER
OF
COFFIELD UNGARETTI & HARRIS
REGARDING TAX MATTERS
<PAGE>
COFFIELD UNGARETTI & HARRIS
3500 Three First National Plaza
Chicago, Illinois 60602
Tel: (312) 977-4400
Fax: (312) 977-4405
June 26, 1996
CenterPoint Properties Corporation
401 North Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
You have requested our opinion as to whether CenterPoint Properties Corporation,
a Maryland corporation (the "Company") is qualified to be taxed as a real estate
investment trust ("REIT") under section 856 of the Internal Revenue Code of
1986, as amended (the "Code").
In this connection, we have examined:
a. the amended and restated articles of incorporation, by-laws and
organizational documents of the Company;
b. the Company's Registration Statement on Form S-3 filed with the Securities
and Exchange Commission on June 5, 1995, Amendment No. 1 thereto and Post-
Effective Amendment No. 1 (the "Registration Statement");
c. the Common Stock Supplement dated June 26, 1996 to be filed with the
Securities and Exchange Commission on June 28, 1996 (the "Common Stock
Supplement"); and
d. such other documents as we have deemed relevant for the purpose of
rendering the opinions set forth herein, including certifications as to
certain matters of fact by a responsible officer of the Company (the
"Officer's Certificate").
Based upon the foregoing, we are of the opinion that:
1. The Company is organized in conformity with the requirements for
qualification as a REIT under the Code.
2. The Company has met the requirements to qualify as a REIT for its taxable
years ending prior to the date hereof. If results of operations for its
current taxable year and subsequent taxable years are in accordance with
expectations
<PAGE>
CenterPoint Properties Corporation
June 26, 1996
Page -2-
set forth in the Officer's Certificate, the Registration Statement and the
Common Stock Supplement, the Company will continue to so qualify.
Our opinion as expressed herein is based upon the Code, applicable Treasury
regulations adopted thereunder, reported judicial decisions and rulings of the
Internal Revenue Service, all as of the date hereof. It should be noted that
whether the Company will qualify as a REIT under the Code in the current taxable
year and future taxable years will depend upon whether the Company continues to
meet the various qualification tests imposed under the Code through actual
annual operating results. We express no opinion as to whether the actual
results of the Company's operations for any such taxable year will satisfy such
requirements.
We consent to the use of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
/s/ Coffield Ungaretti & Harris
Coffield Ungaretti & Harris
