REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
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This Registration Rights and Lock-up Agreement (the "Agreement") is
entered into as of April 29, 1999 by and among Vinings Investment Properties
Trust, a Massachusetts business trust (the "Company"), and each of the other
signatories hereto (the "Investors"), which contemporaneously herewith is to
become a partner of Vinings Investment Properties, L.P., a Delaware limited
partnership (the "Partnership"), and their permitted successors and assigns
(together with the Investors, the "Holders").
WHEREAS, each of the Investors is to receive contemporaneously herewith
preferred units of limited partnership interest in the Partnership ("Preferred
Units"), issued without registration under the Securities Act of 1933, as
amended (the "Securities Act"), in consideration for its investment in the
Partnership pursuant to that certain Securities Purchase Agreement, dated as of
April 29, 1999 (collectively, the "Purchase Agreement");
WHEREAS, such Preferred Units may be converted into preferred shares of
beneficial interest in the Company ("Preferred Shares") under certain
circumstances or redeemed for common shares of beneficial interest in the
Company, no par value ( the "Common Shares"), issued without registration under
the Securities Act; and
WHEREAS, it is a condition precedent to the closing of the Purchase
Agreement that the Company provide the Investors with the registration rights
set forth in Section 3 hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust, or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement at the time the Registration Statement was declared effective by the
SEC, as subsequently amended or supplemented by any prospectus supplement
relating to the terms of the offering of any portion of the Registrable Shares
covered by such Registration Statement, and in each case including all material
incorporated by reference therein.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for
which a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible (or which would be eligible in the
absence of the Holder's ownership of Common Shares other than Registrable
Shares) for sale pursuant to Rule 144(k) under the Securities Act.
"Registration Expenses" shall mean any and all expenses incurred by the
Company incident to performance of or compliance with this Agreement, including,
without limitation: (i) all SEC, stock exchange or NASD registration and filing
fees; (ii) all fees and expenses incurred in connection with compliance with
state securities or "blue sky" laws and the rules of the NASD; (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus,
certificates and other documents relating to the performance of and compliance
with this Agreement; (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Shares on any securities exchange or
exchanges pursuant to Section 3(d) hereof; and (v) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audit or "cold comfort" letters
required by or incident to such performance and compliance. Registration
Expenses shall specifically exclude underwriting discounts and commissions
relating to the sale or disposition of Registrable Shares by a selling Holder,
the fees and disbursements of counsel representing a selling Holder, and
transfer taxes, if any, relating to the sale or disposition of Registrable
Shares by a selling Holder, all of which shall be borne by such Holder in all
cases.
"Registration Statement" shall mean any registration statement of the
Company pursuant to the requirements of the Securities Act which covers any of
the Registrable Shares on an appropriate form, and all amendments and
supplements to such registration statement, including post-effective amendments
and supplements, in each case including the Prospectus contained therein, all
exhibits thereto and all materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" shall mean the Common Shares issued to the Holder(s) upon
redemption or in exchange for its or their Preferred Units or Preferred Shares,
as appropriately adjusted on account of any stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization.
2. LOCK-UP AGREEMENT. Each Holder hereby agrees that for one (1) year
from the date hereof (the "Lock-Up Period"), without the prior written consent
of the Company, it will not offer, sell, contract to sell, hypothecate, pledge,
seek to redeem, grant an option, right or warrant to purchase or otherwise
dispose of, directly or indirectly, any Shares or Preferred Units (the
"Lock-Up").
3. REGISTRATION.
(a) DEMAND REGISTRATION. Subject to the conditions set forth
in this Agreement, at any time after the expiration of the Lock-Up Period, the
Company shall, at the written request of a Holder cause to be filed as soon as
practicable after the date of such request by such Holder a Registration
Statement relating to the sale by the Holder of all or any integral multiple of
100,000 Registrable Shares held by such Holder in accordance with the terms
hereof, and shall use reasonable efforts to cause such Registration Statement to
be declared effective by the SEC as soon as practicable thereafter; provided,
however, that the Company shall not be required to effect more than two demand
registrations pursuant to this Section 3(a). The Company agrees to use
reasonable efforts to keep each Registration Statement continuously effective
until the earlier of (i) twelve (12) months after such Registration Statement
was declared effective by the SEC, or (ii) the date on which all Registrable
Shares registered thereby are sold or otherwise disposed of by the Holders.
Notwithstanding the foregoing provisions of this Section 3(a), during any period
of time which the Company has a Registration Statement in effect under the
provisions of the Securities Act relating to Registrable Shares, the Holders
will not have the right to request the registration of such Registrable Shares
under the provisions of this Section 3(a).
(b) PIGGYBACK REGISTRATION. If at any time while any
Registrable Shares are outstanding and a Registration Statement applicable to a
Holder under Section 3(a) is not effective the Company (in its sole discretion
and without any obligation to do so) proposes to file a registration statement
under the Securities Act in connection with its offering of Common Shares solely
for cash (other than a registration statement (i) on Form S-8 or any successor
form to such Form or in connection with any employee or director welfare,
benefit or compensation plan, (ii) on Form S-4 or any successor form to such
Form or in connection with an exchange offer, (iii) in connection with a rights
offering exclusively to existing holders of Common Shares, (iv) in connection
with an offering solely to employees of the Company or its subsidiaries, or (v)
relating to a transaction pursuant to Rule 145 of the Securities Act), the
Company shall give prompt written notice of such proposed filing to each Holder
who has requested to receive such notices at least fifteen (15) days prior to
the proposed filing date. The notice referred to in the preceding sentence shall
offer each Holder the opportunity to register any amount of Registrable Shares
as such Holder may request (a "Piggyback Registration"). Subject to the
provisions of Section 3 below, the Company shall include in such Piggyback
Registration, in the registration and qualification for sale under the blue sky
or securities laws of the various states and in any underwriting in connection
therewith, all Registrable Shares for which the Company has received written
requests for inclusion therein within fifteen (15) calendar days after the
notice referred to above has been given by the Company to each Holder. Each
Holder of Registrable Shares shall be permitted to withdraw all or part of its
Registrable Shares from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company and the managing
underwriter advises the Company that the total number of Common Shares requested
to be included in such registration exceeds the number of Common Shares which
can be sold in such offering without adversely affecting the price range or
probability of success of such offering, the Company will include in such
registration in the following priority: (i) first, all Common Shares the Company
proposes to sell, and (ii) second, up to the full number of Registrable Shares
and Common Shares requested to be included in such registration by any Holders
and other holders of registration rights, which in the opinion of such managing
underwriter, can be sold without adversely affecting the price range or
probability of success of such offering (with the Common Shares to be registered
allocated pro rata among the Holders and the other holders of registration
rights on the basis of the total number of Registrable Shares and the other
Common Shares requested to be included in such registration by all such Holders
and other holders of registration rights).
(c) NOTIFICATION AND DISTRIBUTION OF MATERIALS. The Company
shall notify each Holder of the effectiveness of any Registration Statement
applicable to the Shares of such Holder and shall furnish to each such Holder
the number of copies of such Registration Statement and the Prospectus contained
therein as such Holder may reasonably request in order to facilitate its sale of
the Registrable Shares in the manner described in such Registration Statement.
(d) AMENDMENTS AND SUPPLEMENTS; EXCHANGE LISTING APPLICATIONS.
The Company shall prepare and file with the SEC from time to time such
amendments and supplements to any Registration Statement and Prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all the Registrable Shares until the earlier of (i) such
time as all of the Registrable Shares have been disposed of in accordance with
the intended methods of disposition by the Holders as set forth in such
Registration Statement or (ii) the date on which such Registration Statement
ceases to be effective in accordance with the terms of this Section 3. Upon ten
(10) business days' notice, the Company shall file any supplement or
post-effective amendment to such Registration Statement with respect to the plan
of distribution or such Holder's ownership interests in Registrable Shares that
is reasonably necessary to permit the sale of the Holder's Registrable Shares
pursuant to the Registration Statement. The Company shall file any necessary
listing applications or amendments to the existing applications to cause the
Shares registered under the Registration Statement to be then listed or quoted
on the primary exchange or quotation system on which the Common Shares is then
listed or quoted.
(e) NOTICE OF CERTAIN EVENTS.
(i) The Company shall promptly notify each
Holder of, and confirm in writing, the filing of any Registration Statement
or any Prospectus, amendment or supplement related thereto or any
post-effective amendment to any Registration Statement and the effectiveness
of any post-effective amendment.
(ii) At any time when a Prospectus relating to a
Registration Statement is required to be delivered under the Securities Act,
the Company shall immediately notify each Holder of the happening of any
event as a result of which the Prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In such event, the Company shall
promptly prepare and furnish to each applicable Holder a reasonable number
of copies of a supplement to or an amendment of such Prospectus as may be
necessary so that, as thereafter delivered to the purchasers of
Registrable Shares, such Prospectus shall not include 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, in the light of the
circumstances under which they are made, not misleading. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is a part
to reflect such amendment or supplement.
4. STATE SECURITIES LAWS. Subject to the conditions set forth in this
Agreement, the Company shall, in connection with the filing of any Registration
Statement hereunder, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities or "blue sky" laws of such
states as any Holder may reasonably request, and the Company shall use its best
efforts to cause such filings to become effective; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such state in which it is not then qualified or
to file any general consent to service of process in any such state. Once
effective, the Company shall use its best efforts to keep such filings effective
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by the Holder
as set forth in the Registration Statement, (b) in the case of a particular
state, a Holder has notified the Company that it no longer requires an effective
filing in such state in accordance with its original request for filing or (c)
the date on which the Registration Statement ceases to be effective in
accordance with Section 3. The Company shall promptly notify each Holder of, and
confirm in writing, the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Shares for sale under
the securities or "blue sky" laws of any jurisdiction or the initiation of any
threat of any proceeding for such purpose.
5. EXPENSES. Except as otherwise provided in this Section 4, the
Company shall bear all Registration Expenses incurred by the Company in
connection with the registration of the Registrable Shares pursuant to this
Agreement. Each Holder shall be responsible for any brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable Shares
sold by it and for any legal, accounting and other expenses incurred by it. In
the event that the Company (in its sole discretion and without any obligation to
do so) amends a Registration Statement in response to a request by a Holder for
such amendment or to reflect a change in the plan of distribution or ownership
interests with respect to a Holder's Registrable Shares, the Holder requesting
such amendment or whose actions require such amendment shall bear all fees,
costs and expenses incurred by the Company or by such Holder in connection
therewith, including fees related to the delisting of Shares from any national
securities exchange or quotation system on which such Shares had been listed for
trading.
6. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify each
Holder and its respective officers, directors, employees, agents,
representatives and affiliates, and each person or entity, if any, that controls
such Holder within the meaning of the Securities Act (each an "Indemnitee")
against any and all losses, claims, damages, actions, liabilities, costs and
expenses (including, without limitation, reasonable fees, expenses and
disbursements of attorneys), joint or several, arising out of or based upon any
untrue or alleged untrue statement of material fact contained in the
Registration Statement or any Prospectus, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Company shall not be liable to such
Indemnitee or any other person to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof), cost or expense arises
out of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with information which was
furnished to the Company for use in connection with the Registration Statement
or the Prospectus contained therein by or on behalf of a Holder or any other
Indemnitee or (ii) a Holder's failure to send or give a copy of the most current
Prospectus furnished to the Holders by the Company at or prior to the time such
action is required by the Securities Act to the person claiming an untrue
statement or alleged untrue statement or omission or alleged omission if such
statement or omission was corrected in such Prospectus.
7. COVENANTS OF HOLDER(S). Each Holder hereby agrees (a) to cooperate
with the Company and to furnish to the Company all such information concerning
its plan of distribution and its ownership interests with respect to its
Registrable Shares in connection with the preparation of a Registration
Statement with respect to such Holder's Registrable Shares and any filings with
any state securities commissions as the Company may reasonably request, (b) to
deliver or cause delivery of the Prospectus contained in such Registration
Statement to any purchaser of the shares covered by such Registration Statement
from the Holder and (c) to indemnify the Company, its officers, directors,
employees, agents, representatives and affiliates, and each person, if any, who
controls the Company within the meaning of the Securities Act against any and
all losses, claims, damages, actions, liabilities, costs and expenses arising
out of or based upon (i) any untrue statement or alleged untrue statement of
material fact contained in either such Registration Statement or the Prospectus
contained therein, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, if and to the extent that such statement or omission occurs from
reliance upon and in conformity with information regarding a Holder, its plan of
distribution or its ownership interests, which was furnished to the Company by
or on behalf of a Holder for use therein unless such statement or omission was
corrected in a writing delivered to the Company not less than five (5) business
days prior to the date of the final Prospectus or (ii) the failure by a Holder
to deliver or cause to be delivered the most current Prospectus furnished by the
Company to the Holder to any purchaser of the shares covered by such
Registration Statement from the Holder.
8. SUSPENSION OF REGISTRATION REQUIREMENT.
(a) The Company shall promptly notify each Holder of, and
confirm in writing, the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement with respect to such Holder's
Registrable Shares or the initiation of any proceedings for that purpose. The
Company shall use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such a Registration Statement as soon as
reasonably practicable
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a Registration
Statement and any filings with any state securities commission to become
effective or to amend or supplement a Registration Statement shall be suspended
in the event and during such period as unforeseen circumstances exist (including
without limitation (i) an underwritten primary offering by the Company if the
Company is advised by the underwriters that the sale of Registrable Shares under
the Registration Statement would impair the pricing or commercial practicality
of the primary offering or (ii) pending negotiations relating to, or
consummation of, a transaction or the occurrence of an event that would require
additional disclosure of material information by the Company in the Registration
Statement or such filing, as to which the Company has a bona fide business
purpose for preserving confidentiality or which renders the Company unable to
comply with SEC requirements) (such unforeseen circumstances being hereinafter
referred to as a "Suspension Event") that would make it impractical or
unadvisable to cause the Registration Statement or such filings to become
effective or to amend or supplement the Registration Statement, but such
suspension shall continue only for so long as such event or its effect is
continuing. The Company shall notify each Holder of the existence and, in the
case of circumstances referred to in clause (i) of this Section 7(b), nature of
any Suspension Event.
(c) Each Holder of Registrable Shares whose Registrable Shares
are covered by a Registration Statement filed pursuant to Section 3 agrees, if
requested by the Company in the case of a Company-initiated nonunderwritten
offering or if requested by the managing underwriter or underwriters in a
Company-initiated underwritten offering, not to effect any public sale or
distribution of any of the securities of the Company, including a sale pursuant
to Rule 144 or Rule 144A under the Securities Act, during the 15-day period
prior to, and during the 60-day period beginning on, the date of commencement of
each Company-initiated offering made pursuant to such Registration Statement, to
the extent timely notified in writing by the Company or the managing
underwriters; provided, however, that such 60-day period shall be extended by
the number of days from and including the date of the giving of any notice
pursuant to Section 3(e)(ii) hereof to and including the date when each Holder
of Registrable Shares covered by such Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by Section
3(e)(ii) hereof.
9. BLACK-OUT PERIOD. Each Holder agrees that, following the
effectiveness of any Registration Statement relating to Registrable Shares of
such Holder, such Holder will not effect any sales of the Registrable Shares
pursuant to the Registration Statement or any filings with any state securities
commissions at any time after such Holder has received notice from the Company
to suspend sales as a result of the occurrence or existence of any Suspension
Event or so that the Company may correct or update the Registration Statement or
such filing. The Holder may recommence effecting sales of the Shares pursuant to
the Registration Statement or such filings following further notice to such
effect from the Company, which notice shall be given by the Company not later
than five (5) business days after the conclusion of any such Suspension Event.
10. ADDITIONAL SHARES. The Company, at its option, may register, under
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued Common Shares of the
Company or any Common Shares of the Company owned by any other stockholder(s) of
the Company.
11. CONTRIBUTION. If the indemnification provided for in Sections 5 and
6 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Indemnitee, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Indemnitee, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
party to contribute under this Section 10 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 5 or 6 hereof had been available
under the circumstances.
The Company and each of the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 10 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 10, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of Shares exceeds the amount of any damages that the
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
12. NO OTHER OBLIGATION TO REGISTER. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares under the Securities Act.
13. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified, or supplemented or waived without the prior written consent
of the Company and the Holders of in excess of fifty percent (50%) of the
aggregate of all Registrable Shares.
14. NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 3(d) or
Section 6, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Vinings Investment Properties Trust
0000 Xxxxx Xxxx Xxxx
Xxxxx X-000
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxx
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, P.C.
If to the Holders: __________________________
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Telecopy: _________________
Attention: _________________
with a copy to: __________________________
==========================
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Telecopy: _________________
Attention: _________________
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. This Agreement may not be assigned by any Holder and any attempted
assignment hereof by any Holder will be void and of no effect and shall
terminate all obligations of the Company hereunder.
16. 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.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts made and to be performed wholly within said Commonwealth.
18. 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 parties
hereof shall be enforceable to the fullest extent permitted by law.
19. ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and 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, with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
VININGS INVESTMENT PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx:
President and Chief Executive Officer
[INVESTORS]
By:/s/ Investor
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Name:
Title:
