EXHIBIT 10.65
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of November 6,
1998, by and among Weeks Corporation, a Georgia corporation (the "Company"), and
each Holder (as hereinafter defined) executing a signature page hereto.
This Agreement is made pursuant to a certain Securities Purchase Agreement
(the "Securities Purchase Agreement") dated as of the date hereof by and among
the Company, Weeks Realty, L.P., a Georgia limited partnership (the "Operating
Partnership") and the purchaser named therein, pursuant to which the purchaser
shall purchase (i) a Warrant to purchase 1,046,729 shares of the Company's
Common Stock or 1,400,000 shares of Series A Preferred Stock (the "Warrant") and
(ii) 1,400,000 Series C Preferred Partnership Units of the Operating Partnership
(the "Operating Units"). In order to induce the purchasers to enter into the
Securities Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Securities Purchase Agreement.
In consideration of the foregoing, the parties hereby agree as follows:
SECTION 1. DEFINITIONS.
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As used in this Agreement, the following terms shall have the following
meanings:
"Advice" has the meaning set forth in Section 4.
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"Affiliate" means, with respect to any specified Person, any other Person
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who, directly or indirectly, controls, is controlled by, or is under common
control with such specified Person.
"Business Day" means any day other than a Saturday or Sunday or a day on
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which commercial banking institutions in Boston, Massachusetts, New York, New
York or Atlanta, Georgia are authorized by law to be closed. Any reference to
"days" (unless Business Days are specified) shall mean calendar days.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means the common stock, par value $.01 per share, of the
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Company.
"Company" has the meaning set forth in the preamble and shall include the
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Company's successors by merger, acquisition, reorganization or otherwise.
"Controlling Persons" has the meaning set forth in Section 6(a).
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"Damages" has the meaning set forth in Section 6(a).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from
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time to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"Holder" means (i) each Person (other than the Company and its Affiliates)
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who is a signatory to this Agreement as listed on Schedule 1 hereto and (ii)
each Person (other than the Company and its Affiliates) to whom a Holder
transfers Securities if such Person acquires such Securities as Registrable
Securities.
"Inspectors" has the meaning set forth in Section 4(k).
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"Maximum Number" means such number of securities that may be included in an
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underwritten public offering when the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the maximum number which can be included
in such offering without adversely affecting the marketability of the offering.
"NASD" has the meaning set forth in Section 4(m).
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"Nasdaq" has the meaning set forth in Section 4(m).
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"Operating Partnership" has the meaning set forth in the preamble and shall
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include the Operating Partnership's successors.
"Operating Units" has the meaning set forth in the preamble.
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"Person" means any individual, corporation, partnership, joint venture,
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association, joint-stock company, trust, limited liability company,
unincorporated organization or government or other agency or political
subdivision thereof.
"Piggy-Back Registration" has the meaning set forth in Section 3(a).
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"Prospectus" means the prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Records" has the meaning set forth in Section 4(k).
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"Registrable Securities" means the Securities; provided, however, that any
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Securities shall cease to be Registrable Securities when (i) a Registration
Statement covering such Securities has been declared effective and such
Registrable Securities have been disposed of by the holder thereof
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pursuant to such effective Registration Statement or any other effective
registration statement, (ii) such Securities are transferred by the holder
thereof to any Person other than a Holder pursuant to Rule 144 (or any successor
rule or similar provision then in effect, but not Rule 144A) under the
Securities Act, including a sale pursuant to the provisions of Rule 144(k),
(iii) such Securities shall have ceased to be outstanding or (iv) such
Securities are eligible for sale pursuant to Rule 144 under the Securities Act
and could be sold in one transaction in accordance with the volume limitations
contained in Rule 144(e)(1)(i) under the Securities Act.
"Registration Expenses" has the meaning set forth in Section 5.
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"Registration Statement" means any registration statement of the Company
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that covers any of the Registrable Securities pursuant to the provisions of this
Agreement and all amendments and supplements to any such registration statement,
including post-effective amendments, in each case including the Prospectus, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Required Filing Date" has the meaning set forth in Section 2(a).
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"Securities" means (i) all shares of Common Stock or Series A Preferred
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Stock issued to any Holder upon the redemption or put of Operating Units or the
exercise or put of the Warrant and (ii) all shares of Common Stock or Series A
Preferred Stock or Other Securities directly or indirectly issued or issuable in
respect of the securities referred to in clause (i) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization or issuable
upon exercise of the Warrant.
"Securities Act" means the Securities Act of 1933, as amended from time to
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time, or any successor statute, and the rules and regulations of the Commission
promulgated thereunder.
"Securities Purchase Agreement" has the meaning set forth in the
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introduction.
"Series A Preferred Stock" means the 8% Series A Cumulative Redeemable
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Preferred Stock, par value $.01 per share, of the Company.
"Shelf Registration Statement" has the meaning set forth in Section 2(a).
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"Suspension Notice" has the meaning set forth in Section 4.
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"Suspension Period" has the meaning set forth in Section 4.
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"Target Effective Date" means the date 45 days after the earlier of (i) a
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Required Filing Date or (ii) the date on which the Shelf Registration Statement
is actually filed with the Commission.
"Target Effective Period" means the period of time between the date on
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which a Shelf Registration Statement is actually declared effective and the
later of (i) the date which is 24 months following the date hereof, and (ii) the
date which is three months after the date on which all Holders cease to be an
Affiliate of the Company.
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"Warrant" has the meaning set forth in the preamble.
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SECTION 2. SHELF REGISTRATION.
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(a) Filing; Effectiveness. As soon as practicable but not later than
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the forty-fifth (45th) day following each of (i) the closing of the transactions
contemplated by the Securities Purchase Agreement, and (ii) to the extent not
covered by such first registration statement, each date that any Holder acquires
Securities (each a "Required Filing Date"), the Company shall prepare and file
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with the Commission a "shelf" registration statement (the "Shelf Registration
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Statement") on the appropriate form for an offering to be made on a continuous
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basis pursuant to Rule 415 under the Securities Act (or any successor rule or
similar provision then in effect) covering all of the Registrable Securities.
The Company shall use its reasonable best efforts to have the Shelf Registration
Statement declared effective on or before the Target Effective Date and to keep
such Shelf Registration Statement continuously effective for the Target
Effective Period. Any Holder of Registrable Securities shall be permitted to
withdraw all or any part of the Registrable Securities from a Shelf Registration
Statement at any time prior to the effective date of such Shelf Registration
Statement, but the Company shall be under no further obligation to register such
Securities pursuant to this Section 2.
(b) Supplements; Amendments. The Company agrees, if necessary, to
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supplement or amend the Shelf Registration Statement, as required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or as
requested (which request shall result in the filing of a supplement or
amendment) by any Holder of Registrable Securities to which such Shelf
Registration Statement relates including as necessary to reflect any increase in
the number or nature of Securities as a result of adjustments of the Warrant or
otherwise, and the Company agrees to furnish to the Holders, Holders' Counsel
and any managing underwriter copies of any such supplement or amendment prior to
its being used and/or filed with the Commission.
(c) Effective Registration. A registration will not be deemed to have
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been effected as a Shelf Registration Statement unless the Shelf Registration
Statement with respect thereto has been declared effective by the Commission and
the Company has complied in all material respects with its obligations under
this Agreement with respect thereto; provided, however, that if after the Shelf
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Registration Statement has been declared effective, the offering of Registrable
Securities pursuant to such Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court, such Shelf Registration Statement will
be deemed not to have become effective during the period of such interference
until the offering of Registrable Securities pursuant to such Shelf Registration
Statement may legally resume. If a registration requested pursuant to this
Section 2 is deemed not to have been effected, then the Company shall continue
to be obligated to effect a registration pursuant to this Section 2.
(d) Plan of Distribution. The Shelf Registration Statement shall
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describe the method of distribution of the Registrable Securities; provided,
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however, that the Company shall not
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be required to participate in any organized distribution efforts including,
without limitation, "road shows" and investor meetings.
SECTION 3. PIGGY-BACK REGISTRATION.
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(a) Request for Registration. Each time the Company proposes to file
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a registration statement under the Securities Act with respect to an offering by
the Company for its own account or for the account of any of its security
holders of any class of equity security (other than (i) a registration statement
on Form S-4 or S-8 (or any substitute form that is adopted by the Commission) or
(ii) a registration statement filed in connection with an exchange offer or the
offering of securities solely to the Company's existing security holders), then
the Company shall give written notice of such proposed filing to each Holder of
Registrable Securities as soon as practicable (but in no event less than 20 days
before the anticipated filing date), and such notice shall offer such Holder the
opportunity to register such number of shares of Registrable Securities as each
such Holder may request (which request must be made in writing and shall specify
the Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof) (a "Piggy-Back Registration");
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provided, however, that the Company shall not be required to include Registrable
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Securities in the securities to be registered pursuant to a registration
statement on any form which limits the amounts of securities which may be
registered by the issuer and/or selling security holders if, and to the extent
that, such inclusion would make the use of such form unavailable. In the event
that any Piggy-Back Registration shall be, in whole or in part, an underwritten
public offering of Common Stock, any request for inclusion by the Holder shall
specify that either (i) such Registrable Securities are to be included in the
underwriting on the same terms and conditions as the shares of Common Stock
otherwise being sold through underwriters under such registration, or (ii) such
Registrable Securities are to be sold in the open market without any
underwriting, on terms and conditions comparable to those normally applicable to
offerings of common stock in reasonably similar circumstances. The Company
shall permit, or, if the offering relating to a Piggy-Back Registration is an
underwritten offering, shall use its reasonable best efforts to cause the
managing underwriter or underwriters of such proposed underwritten offering to
permit, the Registrable Securities requested to be included in such Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company or any other security holder included therein and
shall permit, or use its reasonable best efforts to cause such managing
underwriter or underwriters to permit, the sale or other disposition of such
Registrable Securities in accordance with such Holder's intended method of
distribution thereof. Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 3 by giving written notice to the Company of such
withdrawal. The Company may withdraw such registration statement at any time
prior to the time it becomes effective, provided that the Company shall give
immediate notice of such withdrawal to the Holders who requested Registrable
Securities to be included in such Piggy-Back Registration.
(b) Priority on Primary Registrations. In the event a Piggy-Back
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Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of shares requested to be included in such registration
exceeds the Maximum Number, the Company will limit the number of shares included
in such registration to the Maximum Number, and the shares registered shall be
selected in the following order of priority: (i) first, securities the Company
proposes to sell, (ii) second,
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securities requested to be included in such registration pursuant to the
Registration Rights and Lock-Up Agreement dated as of August 24, 1994, by and
among Weeks Corporation and the Company Participants Listed on Schedule A
thereof and the Other Participants Listed on Schedule B thereof, (iii) third,
(a) securities covered by piggyback registration requests pursuant to the
Registration Rights and Lock-Up Agreement dated December 31, 1996, by and among
Weeks Corporation and Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx,
Xxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxx and Perimeter Park West Associates Limited
Partnership, (b) securities covered by piggyback registration requests pursuant
to the Registration Rights and Lock-Up Agreement for Post-June 30, 1998 Units
dated December 31, 1996, by and among Weeks Corporation and Xxxxxx X. Xxxxxxx,
Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx, Xxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxx and
Perimeter Park West Associates Limited Partnership, (c) securities covered by
piggyback registration requests pursuant to the Registration Rights and Lock-Up
Agreement dated as of November 1, 1996, by and among Weeks Corporation, NWI
Warehouse Group, L.P., Xxxxxxx & Company Real Estate, Inc., Xxxx X. Xxxxxx, Xx.
and Xxxxxx X. Xxxxxxx, Xx., and (d) securities covered by piggyback registration
requests pursuant to the Registration Rights and Lock-Up Agreement for Post-
March 31, 1998 Shares and Units dated as of November 1, 1996, by and among Weeks
Corporation, NWI Warehouse Group, L.P. and Xxxxxxx & Company Real Estate, Inc.,
pro rata among the holders thereof on the basis of the number of shares
requested to be included in such registration, and (iv) fourth, Registrable
Securities covered by Piggy-Back Registration requests and all other securities
requested to be included in such registration, pro rata among the holders
thereof on the basis of the number of shares requested to be included in such
registration.
(c) Priority on Secondary Registrations. In the event a Piggy-Back
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Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the Maximum Number, the Company will include in
such registration the shares requested to be included therein by the holders
requesting such registration and the Registrable Securities covered by Piggy-
Back Registration requests and any other securities requested to be included in
such registration, pro rata among the holders thereof on the basis of the number
of shares requested to be included in such registration; provided, however, that
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if the holders requesting registration are doing so pursuant to demand
registration rights of such holders, such holders' shares shall take priority
over any Registrable Securities and any other securities requested to be
included, which shall be included on a pro rata basis.
(d) Continuing Obligations of the Company. Although the specific
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shares of Common Stock or Series A Preferred Stock disposed of pursuant to a
Piggy-Back Registration will cease to be Registrable Securities, the mere
registration of Registrable Securities under this Section 3 shall not relieve
the Company of its obligation to effect or maintain a Shelf Registration
Statement pursuant to Section 2. No failure by the Holders to elect a Piggy-
Back Registration under this Section 3 or to complete the sale of Registrable
Securities pursuant to the registration statement effected in connection
therewith, and no withdrawal of Registrable Securities from a Piggy-Back
Registration, shall relieve the Company of any other obligation under this
Agreement, including without limitation, the Company's obligations under
Sections 4 and 5.
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SECTION 4. REGISTRATION PROCEDURES.
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In connection with the obligations of the Company to effect or cause the
registration of any Registrable Securities pursuant to the terms and conditions
of this Agreement, the Company shall use its reasonable best efforts to effect
the registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection therewith:
(a) The Company shall prepare and file with the Commission a
Registration Statement on the appropriate form under the Securities Act, which
Registration Statement shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith, and use its reasonable best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with the provisions of this Agreement; provided,
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however, that, at least ten Business Days prior to filing a Registration
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Statement or Prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of the Registration
Statement, the Company shall furnish to the Holders of the Registrable
Securities covered by such Registration Statement, Holders' Counsel and the
underwriters, if any, draft copies of all such documents proposed to be filed,
which documents will be subject to the review of Holders' Counsel and the
underwriters, if any.
(b) The Company shall (i) prepare and file with the Commission such
amendments to such Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period; (ii) cause the
Prospectus to be amended or supplemented as required and to be filed as required
by Rule 424 or any similar rule that may be adopted under the Securities Act;
(iii) respond as promptly as practicable to any comments received from the SEC
with respect to the Shelf Registration Statement or any amendment thereto; and
(iv) comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the Holder covered thereby.
(c) The Company shall promptly furnish to any Holder and the
underwriters, if any, without charge, such number of conformed copies of such
Registration Statement and any post-effective amendment thereto and such number
of copies of the Prospectus (including each preliminary Prospectus) and any
amendments or supplements thereto, any documents incorporated by reference
therein and such other documents as any such Holder or underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities being sold by such Holder.
(d) The Company shall, on or prior to the date on which a Registration
Statement is declared effective, (i) use its best efforts to register or qualify
the Registrable Securities covered by such Registration Statement under the
securities or "blue sky" laws of each of the 50 states of the United States (or
such jurisdictions as any Holder, Holders' counsel or underwriter may request)
or obtain appropriate exemptions therefrom; (ii) do any and all other acts and
things which may be necessary or advisable to enable the Holders of Registrable
Securities included in such Registration Statement to consummate the disposition
of such Registrable Securities in accordance with their intended method of
distribution thereof; (iii) use its reasonable best efforts to keep each such
state
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securities or "blue sky" registration or qualification (or exemption therefrom)
effective during the period in which the Company is required to keep the
Registration Statement effective; and (iv) do any and all other acts or things
which may be necessary or advisable to enable the Holders of Registrable
Securities included in such Registration Statement to complete the disposition
in such jurisdictions of such Registrable Securities in accordance with their
intended method of distribution thereof except as otherwise provided in Section
9; provided, however, that the Company shall not be required (A) to qualify to
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do business in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 4(d), (B) to file any general consent to service of
process or (C) subject itself to taxation in any such jurisdiction where it is
not otherwise subject to taxation.
(e) The Company shall promptly notify each Holder, Holders' Counsel
and any underwriter and (if requested by any such Person) confirm such notice in
writing, (i) when a Registration Statement or a Prospectus or any post-effective
amendment or any Prospectus supplement has been filed and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the issuance by any
state securities commission or other regulatory authority of any order
suspending the registration or qualification or exemption from registration or
qualification of any of the Registrable Securities under state securities or
"blue sky" laws or the initiation of any proceedings for that purpose, (v) if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the offering of
such Registrable Securities cease to be true and correct in all material
respects, and (vi) of the happening of any event which makes any statement of a
material fact made in a Registration Statement or related Prospectus untrue or
which requires the making of any changes in such Registration Statement or
Prospectus so that such Registration Statement or Prospectus will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and, as
promptly as practicable thereafter, prepare and file an amendment to such
Registration Statement with the Commission and furnish to the Holders and any
underwriter a supplement or amendment to such Prospectus so that, as thereafter
deliverable to the purchasers of such Registrable Securities, such Prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) The Company shall make generally available to its security
holders an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act as soon as practicable after the effective date of a Registration
Statement, which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under
the Exchange Act and otherwise complies with Rule 158 under the Securities Act.
(g) The Company shall promptly use its reasonable best efforts to
prevent the issuance of any order suspending the effectiveness of a Registration
Statement, and, if any such order
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suspending the effectiveness of a Registration Statement is issued, shall
promptly use its reasonable best efforts to obtain the withdrawal of such order
at the earliest possible moment.
(h) The Company shall, if reasonably requested by the managing
underwriter or underwriters, if any, Holders' Counsel, or any Holder promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as such managing underwriter or underwriters or Holder or Holders'
Counsel requests to be included therein, including, without limitation, with
respect to the Registrable Securities being sold by such Holder to such
underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and any other terms of an underwritten offering of
the Registrable Securities to be sold in such offering, and the Company shall
promptly make all required filings of such Prospectus supplement or post-
effective amendment.
(i) The Company shall cooperate with the Holders and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates (which shall not bear any restrictive legends unless
required under applicable law) representing Registrable Securities sold under a
Registration Statement to the purchasers thereof, and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or such Holders may request and
keep available and make available to the Company's transfer agent prior to the
effectiveness of such Registration Statement a supply of such certificates.
(j) The Company shall enter into such customary agreements (including,
if applicable, an underwriting agreement in customary form) and take such other
actions as the Holders or the underwriters retained by the Holders participating
in an underwritten public offering, if any, may request in order to expedite or
facilitate the disposition of Registrable Securities (the Holders may, at their
option, require that any or all of the representations, warranties and covenants
of the Company to or for the benefit of any underwriters also be made to and for
the benefit of the Holders).
(k) The Company shall promptly make available to each Holder, any
underwriter participating in any disposition of Registrable Securities pursuant
to a Registration Statement, and any attorney, accountant or other agent or
representative retained by any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
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and properties of the Company (collectively, the "Records"), as shall be
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reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
Registration Statement; provided, however, that such Records which the Company
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determines in good faith to be confidential and notifies such Inspectors in
writing that such Records are confidential shall not be disclosed by such
Inspectors unless (i) such disclosure is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or governmental agency, or (ii)
such Records become generally available to the public other than through a
breach of this Agreement.
(l) The Company shall furnish to each Holder of Registrable Securities
included in such offering and to each underwriter, if any, a signed counterpart,
addressed to such Holder or
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underwriter, of (i) an opinion or opinions of counsel to the Company, and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering matters of the type customarily
covered by opinions or comfort letters, as the case may be.
(m) The Company shall use its reasonable best efforts to cause the
Registrable Securities included in a Registration Statement (if the Company and
the Registrable Securities so qualify) (i) to be listed on each national
securities exchange, if any, on which similar securities issued by the Company
are then listed, or (ii) if similar securities of the Company are not then
listed, to be authorized for quotation or listing, as applicable, on the New
York Stock Exchange or the National Association of Securities Dealers, Inc.'s
("NASD") Nasdaq Stock Market ("Nasdaq").
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(n) The Company shall provide a CUSIP number for all Registrable
Securities covered by a Registration Statement not later than the effective date
of such Registration Statement.
(o) The Company shall cooperate with each Holder and each underwriter
participating in the disposition of Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD.
(p) The Company shall, during the period when the Prospectus is
required to be delivered under the Securities Act, promptly file all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act.
(q) The Company shall appoint or maintain a transfer agent and
registrar for all Registrable Securities covered by a Registration Statement not
later than the effective date of such Registration Statement.
(r) If the Registrable Securities are of a class of securities that is
listed on a national securities exchange, the Company shall file copies of any
Prospectus with such exchange in compliance with Rule 153 under the Securities
Act so that the Holders shall benefit from the prospectus delivery procedures
described therein.
In the case of a Shelf Registration Statement, each Holder, upon receipt of
any notice (a "Suspension Notice") from the Company of the happening of any
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event of the kind described in Section 4(e)(vi), shall forthwith discontinue
disposition of the Registrable Securities pursuant to the Shelf Registration
Statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
4(e) or until such Holder is advised in writing (the "Advice") by the Company
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that the use of the Prospectus may be resumed, and such Holder has received
copies of any additional or supplemental filings which are incorporated by
reference in the Prospectus, and, if so directed by the Company, such Holder
will, or will request the managing underwriter or underwriters, if any, to,
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice; provided, however, that the Company shall not give more than two
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Suspension Notices during any period of 12 consecutive months and in no event
shall the period from the date on which any Holder receives a Suspension Notice
to the date on which any Holder receives either the Advice or copies of the
supplemented or amended Prospectus contemplated by Section 4(e) (the "Suspension
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Period") exceed 45 days. In the event that the Company shall give any
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Suspension Notice, the Company shall
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use its reasonable best efforts and take such actions as are reasonably
necessary to render the Advice and end the Suspension Period as promptly as
practicable.
Each Holder also covenants and agrees that (i) such Holder will comply with
the provisions of Regulation M promulgated by the Commission as applicable to
them in connection with sales of Registrable Securities pursuant to the Shelf
Registration Statement and (ii) such Holder will comply with the prospectus
delivery requirements of the Securities Act as applicable to them in connection
with sales of Registrable Securities pursuant to the Shelf Registration
Statement.
If any Registration Statement refers to any Holder by name or otherwise as
the holder of any securities of the Company, then such Holder shall have the
right to require (i) the insertion therein of language, in form and substance
reasonably satisfactory to such Holder, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation by such
Holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such Holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such Holder by name or otherwise is not required by the Securities
Act or any similar federal or state securities or "blue sky" statute and the
rules and regulations thereunder then in force, the deletion of the reference to
such Holder.
SECTION 5. REGISTRATION EXPENSES. Any and all expenses incident to the
---------------------
Company's performance of or compliance with this Agreement, including without
limitation, all Commission and securities exchange, Nasdaq or NASD registration,
listing and filing fees, all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including reasonable fees
and disbursements of counsel for any underwriters or Holder in connection with
the state securities or "blue sky" qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), all
expenses for word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, the fees and
expenses incurred in connection with the listing of the Registrable Securities,
the fees and disbursements of counsel for the Company and of the independent
certified public accountants of the Company (including the expenses of any
comfort letters or costs associated with the delivery by independent certified
public accountants of a comfort letter or comfort letter requested pursuant to
Section 4(l), Securities Act liability insurance (if the Company elects to
obtain such insurance), and the reasonable fees and expenses of any special
experts or other Persons retained by the Company in connection with any
registration, (but excluding underwriting discounts and commissions and transfer
taxes, if any, and fees and disbursements of Holder's legal counsel relating to
the sale or disposition of Registrable Securities) (all such expenses being
herein called "Registration Expenses"), will be borne by the Company whether or
---------------------
not the Shelf Registration Statement or Piggy-Back Registration to which such
expenses relate becomes effective.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) Indemnification by the Company. The Company agrees to indemnify
------------------------------
and hold harmless, to the full extent permitted by law, each Holder, its
partners, officers, directors,
11
trustees, stockholders, employees, agents and investment advisers, and each
Person who controls such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, such Holder, together with the partners, officers,
directors, trustees, stockholders, employees, agents and investment advisors of
such controlling Person (collectively, the "Controlling Persons"), from and
-------------------
against all losses, claims, damages, liabilities and expenses (including,
without limitation, any legal or other fees and expenses incurred by any Holder
or any such Controlling Person in connection with defending or investigating any
action or claim in respect thereof) (collectively, the "Damages") to which such
-------
Holder, its partners, officers, directors, trustees, stockholders, employees,
agents and investment advisers, and any such Controlling Person, may become
subject under the Securities Act or otherwise, insofar as such Damages (or
proceedings in respect thereof) arise out of or are based upon any untrue or
alleged untrue statement of material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Registrable Securities
were registered under the Securities Act, including all documents incorporated
therein by reference, or are caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or are caused by
any omission or alleged omission to state therein a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company shall not be liable
-------- -------
for Damages to any Holder under this Section 6(a) to the extent that any such
Damages (i) arise out of or are based upon any such untrue statement or omission
which is based upon information relating to such Holder furnished in writing to
the Company by such Holder expressly for use in any such Registration Statement
(or any amendment thereto) or Prospectus (or amendment or supplement thereto);
or (ii) were caused by the fact that such Holder sold Securities to a Person as
to whom it shall be established that there was not sent or given, or deemed sent
or given pursuant to Rule 153 under the Securities Act, at the time of or prior
to the written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented if, and only if, (a) the Company has previously
furnished copies of such amended or supplemented Prospectus to such Holder and
(b) such Damages were caused by any untrue statement or omission or alleged
untrue statement or omission contained in the Prospectus so delivered which was
corrected in such amended or supplemented Prospectus. In connection with an
underwritten offering, the Company will indemnify the underwriters thereof,
their officers and directors and each Person who controls such underwriters
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities except with respect to
information provided by the underwriter specifically for inclusion therein.
(b) Indemnification by the Holders. Each Holder agrees, severally and
------------------------------
not jointly, to indemnify and hold harmless the Company, its directors and
officers and each Person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against all Damages to the same extent as the foregoing indemnity from the
Company to such Holder, but only to the extent such Damages arise out of or are
based upon any untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (or any amendment or
supplement thereto) or are caused by any omission to state therein a material
fact necessary to make the statements therein, in light of the
12
circumstances under which they were made, not misleading, which untrue statement
or omission is based upon information relating to such Holder furnished in
writing to the Company by such Holder expressly for use in any such Registration
Statement (or any amendment thereto) or any such Prospectus (or any amendment or
supplement thereto); provided, however, that such Holder shall not be obligated
-------- -------
to provide such indemnity to the extent that such Damages result from the
failure of the Company to promptly amend or take action to correct or supplement
any such Registration Statement or Prospectus on the basis of corrected or
supplemental information furnished in writing to the Company by such Holder
expressly for such purpose. In no event shall the liability of any Holder of
Registrable Securities hereunder be greater in amount than the amount of the
proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Indemnification Procedures. In case any proceeding (including any
--------------------------
governmental investigation) shall be instituted involving any Person in respect
of which indemnity may be sought pursuant to either paragraph (a) or (b) above,
such Person (the "indemnified party") shall promptly notify the Person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceedings
and shall pay the fees and disbursements of such counsel relating to such
proceeding. The failure of an indemnified party to notify the indemnifying
party with respect to a particular proceeding shall not relieve the indemnifying
party from any obligation or liability (i) which it may have pursuant to this
Agreement if the indemnifying party is not substantially prejudiced by such
failure to so notify it or (ii) which it may have otherwise than pursuant to
this Agreement. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel, or (ii) the indemnifying party fails promptly to assume the defense of
such proceeding or fails to employ counsel reasonably satisfactory to such
indemnified party, or (iii) (A) the named parties to any such proceeding
(including any impleaded parties) include both such indemnified party or an
Affiliate of such indemnified party and any indemnifying party or an Affiliate
of such indemnifying party, (B) there may be one or more defenses available to
such indemnified party or any Affiliate of such indemnified party that are
different from or additional to those available to any indemnifying party or any
Affiliate of any indemnifying party and (C) such indemnified party shall have
been advised by such counsel that there may exist a conflict of interest between
or among such indemnified party or any Affiliate of such indemnified party and
such indemnifying party or any Affiliate of such indemnifying party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel of its choice at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense thereof and such counsel shall be at the expense of the indemnifying
party, it being understood, however, that unless there exists a conflict among
indemnified parties, the indemnifying parties shall not, in connection with any
one such proceeding or separate but substantially similar or related proceedings
in the same jurisdiction, arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (together with appropriate local counsel) at any time for such
indemnified parties. 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
13
final judgment for the plaintiff, the indemnifying party agrees to indemnify
each indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of each indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party is a party, and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on all claims that are the subject matter of such proceeding with
no payment by such indemnified party of consideration in connection with such
settlement.
(d) Contribution. If the indemnification from the indemnifying
------------
party provided for in this Section 6 is found, pursuant to a final judicial
determination not subject to appeal, to be unavailable to an indemnified party
hereunder or insufficient in respect of any Damages incurred by such indemnified
party, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the Damages paid or payable by such indemnified party
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified parties in connection with the actions or
omissions that resulted in such Damages, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether any
action or omission in question, including any untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact,
has been made by, or relates to information supplied by, such indemnifying party
or indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Damages referred to above shall be
deemed to include, subject to the limitations set forth in Section 6(c), any
legal or other expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public (less any underwriting discounts or
commissions) exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no selling Holder shall be
required to contribute any amount in excess of the amount by which the total net
proceeds received by such selling Holder with respect to Registrable Securities
sold by such selling Holder exceeds the amount of any damages which such selling
Holder has otherwise been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. Each Holder's
obligation to contribute pursuant to this Section 6(d) is several and not joint
and shall be determined by reference to the proportion that the proceeds of the
offering received by such Holder bears to the total proceeds of the offering
received by all the Holders. 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. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
14
Notwithstanding the foregoing, if indemnification is available under
paragraph (a) or (b) of this Section 6, the indemnifying parties shall indemnify
each indemnified party to the full extent provided in such paragraphs without
regard to the relative fault of said indemnifying party or indemnified party or
any other equitable consideration provided for in this Section 6(d).
SECTION 7. RULE 144. The Company covenants that it will file any reports
---------
required to be filed by it under the Securities Act and the Exchange Act, and
the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, it will, upon the request of any
Holder, make publicly available other information so long as necessary to permit
sales of the Registrable Securities under Rule 144 under the Securities Act),
and it will take such further action as any Holder may request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any successor rule or similar
provision or regulation hereafter adopted by the Commission. Upon the request
of any Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
SECTION 8. RULE 144A. The Company covenants that it will file all reports
---------
required to be filed by it under the Securities Act and the Exchange Act, and
the rules and regulations adopted by the Commission thereunder (or if the
Company is not required to file such reports, it will, upon the request of any
Holder, make available other information so long as necessary to permit sales of
the Registrable Securities pursuant to Rule 144A under the Securities Act), and
it will take such further action as any Holder may request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144A, as such rule may be amended from time to
time, or (b) any successor rule or similar provision or regulation hereafter
adopted by the Commission.
SECTION 9. HOLDBACK AGREEMENTS.
-------------------
(a) Except as otherwise provided in Section 9(b) below, the Holder
agrees not to effect any public sale or distribution (including sales pursuant
to Rule 144) of equity securities of the Company, or any securities convertible
into or exchangeable or exercisable for such securities, during the 7 days prior
to (provided that such Holder receives a notice from the Company of the
commencement of such 7-day period) and the 90-day period beginning on the
effective date of any underwritten offering of securities by the Company (except
as part of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
(b) Notwithstanding the provisions of Sections 9(a), if (i) the
Company elects not to include a Holder's Registrable Securities after receiving
a Holder's request for inclusion of its Registrable Securities pursuant to
Section 3(a), or the number of the Holder's Registrable Securities requested to
be included are reduced pursuant to Sections 3(b) or 3(c) hereof and (ii) other
securities are requested to be included in such Piggy-Back Registration
(pursuant to Section 3(b)(ii) or (iii)) and such securities are not so denied or
reduced, such Holder will have no obligation to comply with the foregoing
provisions of this Section 9.
15
SECTION 10. MISCELLANEOUS.
-------------
(a) No Inconsistent Agreements. The Company has not entered into nor
--------------------------
will the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
other issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in interest of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided, however, that, no amendment, modification, supplement, waiver or
-------- -------
consent to any departure from the provisions of Section 4 hereof (other than any
immaterial amendment, modification, supplement, waiver or consent) shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder.
(c) Notices. Except as otherwise provided in this Agreement, notices
-------
and other communications under this Agreement shall be in writing and shall be
delivered, or mailed by registered or certified mail, return receipt requested,
or by a nationally recognized overnight courier, postage prepaid, addressed, (a)
if to the Holder, at the address set forth on the signature page hereto or such
other address as the Holder shall have furnished to the Company in writing, or
(b) if to any other holder of any Securities, at such address as such other
holder shall have furnished to the Company in writing, or, until any such other
holder so furnishes to the Company an address, then to and at the address of the
last holder of such Securities who has furnished an address to the Company, or
(c) if to the Company, at its address set forth on the signature page hereto, or
at such other address the Company shall have furnished to the Holder and each
such other holder in writing. This Agreement and all documents entered into on
the date hereof in conjunction with the transactions contemplated by the
Securities Purchase Agreement and any such other documents delivered in
connection herewith or therewith embody the entire agreement and understanding
between the Holder and the Company and supersedes all prior agreements and
understandings relating to the subject matter hereof.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; by confirmed
receipt of transmission, if telecopied; and on the next Business Day if timely
delivered to a courier guaranteeing overnight delivery.
(d) Successors and Assigns. No Holder shall transfer to any
----------------------
transferee fewer than 100,000 shares of Registrable Securities. This Agreement
shall inure to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and without
the need for an express assignment, subsequent Holders. If any transferee of
any Holder shall acquire Registrable Securities in any manner, whether by
operation of law or otherwise, such
16
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Georgia without regard to principles
or rules of conflicts of law.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the Holders
shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and is intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(j) Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
(k) Further Assurances. Each party shall cooperate and take such
------------------
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
(l) Remedies. In the event of a breach or a threatened breach by any
--------
party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach will be entitled to specific performance
of its rights under this Agreement or to injunctive relief, in addition to being
entitled to exercise all rights provided in this Agreement and granted by law.
The parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that remedies at law for violations
hereof, including monetary damages, are inadequate
17
and that the right to object in any action for specific performance or
injunctive relief hereunder on the basis that a remedy at law would be adequate
is waived.
(m) Senior Rights. Notwithstanding anything herein to the contrary,
-------------
the Company agrees that on and after the date of this Agreement, it shall not
grant to any person rights (as set forth in Section 3(b) and (c)) with respect
to primary or secondary registrations by the Company that are senior to those
rights held by any Holder pursuant to this Agreement.
[Remainder of Page Intentionally Left Blank]
18
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
WEEKS CORPORATION
By:__________________________________
Name:
Title:
Notice Information:
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: President
Telecopier: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
AEW TARGETED SECURITIES FUND, L.P.
By: AEW TSF, L.L.C., its General Partner
By: AEW TSF, INC., its Managing-Member
By:________________________
Name:
Title:
Notice Information:
c/o AEW Capital Management, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
19
with a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx Xxxxxx, P.C.
Telecopier: (000) 000-0000
20
